Louis Froud, et al v. Anadarko E&P Company, etc., et al

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, DIANA E. MURPHY and KERMIT E. BYE (PUBLISHED) [3670690] [10-8010]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-8010
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Louis Froud, Individually and on
behalf of all others similarly situated;
Shannon Froud, Individually and on
behalf of all others similarly situated;
Dean Staggs, Individually and on
behalf of all others similarly situated;
Linda Staggs, Individually and on
behalf of all others similarly situated;
Brett Mason, Individually and on
behalf of all others similarly situated;
Lynnda Mason, Individually and on
behalf of all others similarly situated,

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Petitioners,
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v.
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Anadarko E&P Company Limited
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Partnership; Anadarko Land
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Corporation; Upland Industries
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Corporation; Upland Industrial
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Development Company; Secco, Inc.;
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XTO Energy, Inc.; Chesapeake
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Exploration, LLC, successor by merger *
to Chesapeake Exploration Limited
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Partnership,
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Respondents.
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Appellate Case: 10-8010

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Appeal from the United States
District Court for the
Eastern District of Arkansas.
[PUBLISHED]

Date Filed: 06/03/2010 Entry ID: 3670690

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Submitted: April 8, 2010
Filed: June 3, 2010
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Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
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PER CURIAM.
Louis Froud and other class representative plaintiffs, petitioners, request
permission to appeal from an order of the district court1 denying a motion to remand
their class action against Anadarko E&P and other entities, respondents.
The Class Action Fairness Act, 28 U.S.C. § 1453 (CAFA) sets forth special
rules for review of removal in class actions. Section 1453(c)(i) states, in relevant part,
[s]ection 1447 shall apply to any removal of a case under this section,
except that notwithstanding section 1447(d), a court of appeals may
accept an appeal 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 if application is made to the court of appeals not more than 10
days after entry of the order.
Courts have construed the permissive language of the provision to mean that
an appeal under CAFA is discretionary and therefore governed by the requirements
for permissive appeals found in Fed. R. App. P. 5, as opposed to the procedures laid
out in Fed. R. App. P. 4 for appeals as of right. See, Amalgamated Transit Union
Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1142-45 (9th Cir. 2006);
Hart v. FedEx Ground Package Sys., Inc., 457 F.3d 675, 678-79 (7th Cir. 2006); Main
1

The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
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Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1230 (11th Cir. 2007).
Though we have not expressly addressed this issue, we have treated such appeals as
properly brought under the procedures set forth in Rule 5. See, e.g., Plubell v. Merck
& Co., Inc., 434 F.3d 1070 (8th Cir. 2006) (involving an appeal initiated by filing
request for permission to appeal in compliance with Rule 5). We now expressly adopt
the position of our sister circuits that an appeal of a district court's order on the
question of remand under 28 U.S.C. § 1453(c)(i) must comply with the requirements
of Rule 5.
Fed. R. App. P. 5(b)(1) states, in relevant part:
(1) The petition must include the following:
(A) the facts necessary to understand the question presented;
(B) the question itself;
(C) the relief sought;
(D) the reasons why the appeal should be allowed and is
authorized by a statute or rule; and
(E) an attached copy of:
(i) the order, decree, or judgment complained of and any
related opinion or memorandum, and
(ii) any order stating the district court's permission to
appeal or finding that the necessary conditions are met.
Petitioners filed a request for permission to appeal in this court, which is the
correct procedure under Rule 5. However, the petition itself does not give any reason
why the appeal should be allowed. Petitioners merely set forth the procedural events
leading up to the denial of their request for remand and then cite to 28 U.S.C.
§ 1453(c)(i) as the statutory basis for the request.
In Plubell, 434 F.3d at 1070, we granted a petition for permission to appeal
under CAFA. Although the court did not discuss the reasons for granting the petition
in its opinion, a review of the petition itself shows it contained a full briefing on the

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merits of the important issue of timing under CAFA presented by the prospective
appeal. While full briefing of the merits may not be necessary to allow the court to
exercise its discretion to permit the appeal under Rule 5, the petitioners in the instant
case did not provide any discussion of the merits or the nature or importance of the
issues presented by their requested appeal.
In order to accept a permissive appeal under 28 U.S.C. § 1453(c)(i) and Rule
5, this court must exercise its discretion. Petitioners have not provided us with a basis
on which to exercise such discretion with regard to this appeal. Contrast Hart, 457
F.3d at 678 (granting permission so the court “could address the important question
of which party has the burden of establishing jurisdiction when the home-state and
local controversy provisions of CAFA are implicated”); Estate of Pew v. Cardarelli,
527 F.3d 25, 29 (2d Cir. 2008) (entertaining appeal “because the question of whether
a state-law deceptive practices claim predicated on the sale of a security is removable
under CAFA is important and consequential, and a decision of the question will
alleviate uncertainty in the district courts”).
We therefore deny the petition for permission to appeal.
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