A recent Eleventh Circuit decision on the Class Action Fairness Act (CAFA) caught my eye. It involves the kind of question legislators (and their staffs) probably never think about when drafting a statute. Law professors dream up these types of questions when trying to find a way to puzzle their students on an exam. It’s of interest only to nerds of the law.

In Ruhlen v. Holiday Haven Homeowners, Inc., No. 21-90022, — F.4th –, 2022 WL 701622 (11th Cir. Mar. 9, 2022), the question was whether the trial court’s order remanding the case to state court “sua sponte” — Latin for “of its own volition” — could be appealed. Under CAFA, federal appeals courts can hear appeals, in their discretion, “from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed.” 28 U.S.C. § 1453(c)(1) (emphasis added). This case was removed to federal court based on both the inclusion of a federal statutory claim in the complaint and under CAFA. The federal claim was withdrawn in an amended complaint, and the district court then remanded the case sua sponte, concluding that the particular type of state law claim brought under a Florida rule of civil procedure allowing a mobile homeowners’ association to sue on behalf of homeowners was not a “class action” within the meaning of CAFA. The defendants asked the Eleventh Circuit to hear an appeal from the remand order.

The Eleventh Circuit, in a 2-1 decision, concluded it did not have jurisdiction to hear the appeal because there was no “motion to remand” filed in the district court. The majority concluded that the plain language of CAFA requires a “motion” made by a party and does not apply to a remand ordered by the court without a motion being filed. Although Black’s Law Dictionary and some court opinions refer to “sua sponte” as meaning “on its own motion,” the majority held that a “motion” requires a party’s request, and when the court acts sua sponte, “the court … does not actually ‘request[]’ anything of itself, nor does it grant or deny anyone else’s request.” The majority acknowledged that Congress may have intended otherwise, and that this was an “odd” result, but felt it was bound by the plain meaning of the text, citing Justice Scalia and Brian Garner’s book Reading Law: The Interpretation of Legal Texts. The majority suggested Congress would have to fix this if they intended otherwise.

Unless Congress fixes this or the Supreme Court takes the issue and reaches a different result, those defending class actions in the Eleventh Circuit better hope that if a jurisdictional issue arises, the plaintiff files a motion to remand. If the court questions its own jurisdiction, you might try suggesting that a briefing schedule be set on a motion to remand the plaintiff might wish to file. Otherwise you could have no chance to appeal.

Judge Rosenbaum dissented, finding the majority’s reading of CAFA “hypertechnical,” inconsistent with the surrounding statutory context and expressed Congressional purpose, and leading to an absurd result. “I can conceive of no logical reason,” she wrote, “why the same action should be exposed to two opposite results, depending on whether a party made a motion before the court issued its order.” Judge Rosenbaum identified a circuit split, citing a decision by the Ninth Circuit, holding that CAFA allowed an appeal of a sua sponte remand, and cases where the Seventh and Eighth Circuits had reviewed sua sponte remands without raising the jurisdictional issue.

Perhaps the Supreme Court will take this case, if a petition for certiorari is filed. It would not be heavy lifting for them. Assuming Judge Jackson is confirmed, this one could be a good candidate for her first opinion, which are traditionally “easy” ones that are of little interest to anyone other than lawyers in a particular practice area.

 

Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.