Ninth Circuit Affirms Denial of Attorney's Fees Following Successful Motion to Remand after CAFA Removal

Per Lussier v. Dollar Tree Stores, Inc., --- F.3d ----, 2008 WL 614407 (9th Cir. Mar. 7, 2008):

John Lussier and Mary Hawks, putative class representatives in litigation against Dollar Tree Stores, Inc., appeal the district court's denial of their request for attorney's fees following their successful motion to remand the underlying action after it had been removed by Dollar Tree pursuant to the recently enacted Class Action Fairness Act of 2005 (CAFA). 28 U.S.C. § 1332(d)(2) (2005).

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When Dollar Tree removed, the Tenth Circuit's opinion in Pritchett v. Office Depot, Inc., 404 F .3d 1232, 1238 (10th Cir.2005) was the only circuit authority on the meaning of “commenced” in CAFA. Dollar Tree's removal arguments proceeded on the understanding that the action was commenced when it was brought in state court instead of upon removal, in accord with Pritchett's holding. Beyond this, as the district court stated, the issue of when an action is “commenced” under CAFA was one of first impression. While the court rejected Dollar Tree's novel arguments about the relationship among Or.Rev.Stat. § 12.020, Or. R. Civ. P. 3, and CAFA in light of CAFA's broadening of federal jurisdiction over class actions, it also found that Dollar Tree's position was reasonable. We cannot say that the district court abused its discretion in this. Lussier and Hawks point out that Dollar Tree offered no authority for its “bar to actions in the inverse” theory, and submit that it was wrong in distinguishing Pritchett because this case (like Pritchett's) commenced with the filing in state court. However, Pritchett said nothing about what any particular state's law provides in relation to CAFA. Dollar Tree's arguments were not otherwise clearly foreclosed. Consequently, we affirm the district court's denial of attorney's fees and costs.