Wingo v. State Farm Fire and Casualty Company

Filing 41

ORDER granting 33 defendant's expedited motion to reopen case and for order staying effect of Court's Remand Order and 31 defendant's Rule 59(e) expedited motion for reconsideration of order of remand. Case shall be reopened. All motions previously denied as moot 14 and 20 shall be considered re-opened; and the Court will reexamine those motions in the near future. Signed on 7/25/13 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
JARED WINGO, on behalf of himself
and all others similarly situated,
Plaintiff,
v.
STATE FARM FIRE AND CASUALTY
COMPANY,
Defendant

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Case No. 13-3097-CV-S-FJG

ORDER

Pending before the Court are (1) Defendant’s Expedited Motion to Reopen Case
and For an Order Staying the Effect of the Court’s Remand Order (Doc. No. 33), and (2)
Defendant’s Rule 59(e) Expedited Motion for Reconsideration of the Order of Remand
(Doc. No. 31). The Court considers both, below.
I.

Motion to Reopen Case and Stay Effect of Remand Order (Doc. No. 33)
In large part, the relief requested by this motion was granted by the Court’s Order

dated June 7, 2013, which indicated that the “effect of the Remand Order (Doc. No. 29)
is hereby STAYED pending disposition of the Motion for Reconsideration (Doc. No.
31).” For the reasons stated by defendant in its motion and suggestions in support
(Doc. Nos. 33 and 34), the Court finds that it has jurisdiction to stay the effect of its prior
remand order, given that this is a CAFA case and 28 U.S.C. § 1453 grants a right for
defendants to seek an appeal of the remand order. See Webb v. Riceland Foods, Inc.,
No. 4:08-CV-1048-WRW, 2008 WL 4960464, at *1 (E.D. Ark. Nov. 17, 2008). See also
Raskas v. Johnson & Johnson, No. 4:12-CV-2307-CDP, 2013 WL 1818133, at *1 (E.D.
Mo. Apr. 29, 2013) (staying order remanding the case while appeal was pending).

Therefore, for the foregoing reasons, defendant’s motion to stay the effect of the
remand order (Doc. No. 33) is GRANTED.
II.

Defendant’s Motion for Reconsideration of Remand Order (Doc. No. 31)
Defendant seeks reconsideration of the Court’s Order remanding this case. The

motion presents two questions which the Court must answer: (1) Does the Court have
jurisdiction to rule on a motion for reconsideration in a CAFA remand? and (2) Should
the motion for reconsideration be granted?
A.

Jurisdiction over Motions for Reconsideration in CAFA Cases

Defendant argues the Court retains jurisdiction over a remanded putative class
action so that it may entertain a motion for reconsideration, given that CAFA gives
defendants a right to seek an appeal from an order of remand. 28 U.S.C. § 1453(c)(1).
Plaintiff argues otherwise, stating that 28 U.S.C. § 1447(d) specifically precludes review
of an order remanding a case pursuant to 28 U.S.C. § 1447(c). See 28 U.S.C. §
1447(d) (providing “An order remanding a case to the state court from which it was
removed is not reviewable on appeal or otherwise, except that an order remanding a
case to the State court from which it was removed pursuant to § 1442 or 1443 of this
title shall be reviewable by appeal or otherwise.”).

Plaintiff indicates that the “or

otherwise” language forecloses reconsideration by the district court, and argues that the
limited appellate review provided for by 28 U.S.C. § 1453(c) does not grant district
courts jurisdiction to reconsider their prior orders of remand. See 28 U.S.C. § 1453(c),
which provides “except that notwithstanding § 1447(d), a court or 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 ten days after entry of the order.”
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Very little case law exists on the issue of whether a district court has jurisdiction
to reconsider a CAFA remand order.

Plaintiff cites to non-CAFA cases for the

proposition that remand strips this Court of jurisdiction. The Eighth Circuit has not
directly addressed the question of whether a district court retains jurisdiction to
reconsider its remand order in a CAFA case. However, the Seventh Circuit has treated
reconsideration by district courts in a CAFA case as a proper exercise of jurisdiction.
See Natale v. General Motors Corporation, No. 06-8011, 2006 WL 1458585, at *1 (7th
Cir. May 8, 2006); In re Burlington Northern Santa Fe Railway Company, 606 F.3d 379,
380 (7th Cir. 2010) (treating a 28 U.S.C. § 1453(c) request for appeal as premature until
the district court ruled on a motion for reconsideration). Upon its consideration, this
Court finds the cases from the Seventh Circuit to be persuasive authority that it retains
jurisdiction to reconsider the remand order. Accordingly, the Court will proceed to the
merits of the motion for reconsideration.
B.

Reconsideration of Order Remanding Case

Upon review of the motion for reconsideration, the parties’ suggestions in support
and opposition of the motion, and a searching review of the prior record before the
Court, the Court finds that defendant’s motion for reconsideration should be GRANTED.
Plaintiff’s only arguments that this case should be remanded were that the class did not
have at least 100 putative class members and the amount in controversy had not been
proven to exceed $5,000,000.00. See Doc. Nos. 18, 19. Plaintiff alleges in his first
amended complaint, however, that his asserted class “is believed to number in
thousands of persons in the State of Missouri.”

See Doc. No. 1-5, ¶ 24. This is

sufficient to demonstrate by a preponderance of the evidence that CAFA’s numerosity
requirement has been met. See Peralta v. Countrywide Home Loans, Inc. No. C093 

3288 PJH, 2009 WL 3837235, *3 (N.D. Cal. Nov. 16, 2009); Hartis v. Chicago Title Ins.
Co., 694 F.3d 935, 945-46 (8th Cir. 2012). Plaintiff appears to allege individual damages
in the amount of $17,322.72. See Doc. No. 1-5, p. 64. Accordingly, if one were to
multiply the named plaintiff’s claimed individual damages ($17,322.72) by a properly
supported and conservative estimate of the number of class members (1,000), the
amount in controversy is $17,322,720.00. As discussed by defendant, this amount is
over three times the CAFA threshold.
In its original analysis of this issue, the Court did not give proper consideration to
the allegations contained in the first amended petition. Under Rule 59(e) of the Federal
Rules of Civil Procedure the Court may correct such manifest errors of law or fact. See
Innovative Home Health Care, Inc. v. P.T.-O.T. Associates of the Black Hills, 141 F.3d
1284, 1286 (8th Cir. 1998). Accordingly, defendant’s motion for reconsideration (Doc.
No. 31) is GRANTED.
III.

Conclusion
Therefore, for the foregoing reasons, Defendant’s Expedited Motion to Reopen

Case and For an Order Staying the Effect of the Court’s Remand Order (Doc. No. 33),
and Defendant’s Rule 59(e) Expedited Motion for Reconsideration of the Order of
Remand (Doc. No. 31) are GRANTED. This case shall be reopened. All motions which
previously were denied as moot (Doc. Nos. 14 and 20) shall be considered re-opened,
and the Court will reexamine those motions in the near future.
IT IS SO ORDERED.

Date: July 25, 2013
Kansas City, Missouri

/FERNANDO J. GAITAN, JR./
Fernando J. Gaitan, Jr.
Chief United States District Judge
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