Alvarez et al v. Midland Credit Management, Inc. et al, 585 F.3d 890 (5th Cir., October 19, 2009). 

The plaintiffs should not have tried it. Did they really think the judges of the United States Fifth Circuit Court of Appeals would not see right through it? What were they thinking? [Ok, ok, maybe it was all an innocent change of circumstances, but it is more fun to think of it this way.] 

When the Fifth Circuit grants permission for an interlocutory appeal of the denial of a motion for remand, based on certain representations about the reason for the appeal, the Fifth Circuit will expect to see those reasons in the substantive briefing. If the reason the Fifth Circuit granted permission to appeal is not briefed, the Fifth Circuit can be expected to evaluate whether it should permit the appeal to proceed.

This is the lesson of Alvarez et al v. Midland Credit Management. The defendants removed the case to federal court, alleging jurisdiction under CAFA.  The plaintiffs moved for remand, but the district court denied the motion. Normally, denial of a motion to remand would not be subject to an immediate interlocutory appeal. However, appellate courts have discretion under CAFA to accept an appeal of such a decision, on an accelerated basis, in order to “facilitate the development of a body of appellate law interpreting CAFA without unduly delaying the litigation of class actions.” 585 F.3d at 894 (internal quotations omitted).

The plaintiffs sought permission to appeal based on four grounds, two of which concerned the existence of jurisdiction under CAFA, two of which did not. [There’s the bait.] The Fifth Circuit granted permission for the appeal, and the plaintiffs submitted their brief shortly thereafter.

The plaintiffs only briefed one of the arguments presented in their petition for permission to appeal, and it had nothing to do with CAFA. [There’s the switch.] 

The Fifth Circuit recognized that the elimination of the CAFA arguments eliminated the basis upon which permission for the appeal had been granted, and stated “in exercising our discretion to hear such appeals we must weigh the time taken from earlier-filed appeals to tend to the CAFA appeal against the benefit of hearing such an appeal at this juncture. Part of this weighing necessarily involves consideration of the unique nature of the issues presented in the proposed appeal.” 585 F.3d at 894. As a result, the court vacated its order granting permission to appeal and remanded the matter to the district court.   Disclaimer: results may vary [but I would not recommend this strategy. What a waste of resources.].