Pritchett v. Office Depot, Inc., 420 F. 3d 1090, No. Civ. 05-0501, 2005 WL 1994020 (10th Cir. August 18, 2005).
The Tenth Circuit handed down its explanatory opinion on August 18, 2005, following a summary denial of Office Depot’s appeal of the district court’s order remanding a state class action removed by Office Depot under the Class Action Fairness Act of 2005. The Colorado Federal District Court had remanded the Colorado class action on the basis that the federal jurisdiction created by CAFA did not apply to actions already pending in state courts prior to CAFA’s enactment on February 18, 2005. The Tenth Circuit agreed, and used this opportunity to explain its reasoning.
Judge Ebel, writing for the Court, first set out the procedural history of the litigation, originally filed as a state class action on April 2, 2003 in Denver County state court. The class was certified by the state court on June 21, 2004. On March 1, 2005, after CAFA was enacted on February 18, 2005, and just two weeks before the trial was scheduled to begin, the defendant, Office Depot, removed the lawsuit to federal court, claiming federal jurisdiction pursuant to CAFA’s new provisions. The plaintiff immediately moved to remand, arguing that CAFA did not apply to actions already pending in state court at the time of CAFA’s enactment, and the Federal District Court agreed, remanding on March 9, 2005.
On March 10, 2005, Office Depot requested that the state court stay the proceedings so that it could perfect its appeal of the remand order, a new right granted by CAFA. (Prior to CAFA, remand orders were largely not subject to appeal.) The state court delayed the trial by one week, and on March 14, 2005, Office Depot filed its petition with the Tenth Circuit Court of Appeals, seeking leave to appeal the lower court’s remand order. The Tenth Circuit denied the petition on March 18, 2005 for lack of subject matter jurisdiction, holding that CAFA was not applicable to actions filed before its effective date, according to the language set out in the Act.
The Tenth Circuit’s jurisdiction to hear the appeal of the remand order came under the provision of CAFA which gives courts of appeal the discretionary jurisdiction to consider appeals of remand orders in certain class actions. CAFA provides a seven day window to perfect an appeal and a sixty day period within which the appeals court should render a judgment. Judge Ebel pointed out that while this particular provision, 28 U.S.C. § 1453(c)(1), actually states “not less than 7 days,” he believed that to be merely a typographical error in the statute.
CAFA itself provides that “[t]he amendments made by this Act shall apply to any civil action commenced on or after the date of enactment of this Act.” The date of signature of the Act by President Bush was February 18, 2005. The Pritchett class action began on April 2, 2003, and was not removed until March 1, 2005. Office Depot argued that the action was “commenced” when it was removed to federal court while Pritchett argued that the class action was “commenced” when it was initially filed in state court. Office Depot did not attempt to argue retroactivity of CAFA. The Tenth Circuit examined the statutory language and the legislative history, and attempted to draw analogies with other federal jurisdiction statutes, and finally concluded that the term “commenced, ” as used in CAFA, refers to the date of initial filing, not the removal date.