Froud v. Anadarko E & P Company Limited Parntership, 2010 WL 2196015 (8th Cir.(Ark.), Jun 03, 2010)(NO. 10-8010)
The Eighth Circuit Court of Appeals recently told litigants they could appeal district court removal orders under 28 U.S.C. § 1453, but only if they ask nicely for permission. This action arose following a district court’s denial of a plaintiff’s motion to remand back to state court a case which had been previously removed to federal court under CAFA. The issue before the Eighth Circuit was whether to grant the petitioners the ability to appeal the denial. (Editors’ Note: See the CAFA Law Blog analysis of the district court’s decision in Froud posted on May 21, 2010).
The first issue the court faced was whether an appeal from a denial to remand was an appeal as of right governed by Rule 4 or a permissive appeal governed by Rule 5. The Court reasoned that 28 U.S.C. § 1453 had permissive language and therefore found that any appeal from a denial or remand would thus be governed by Rule 5.
The court continued by explaining the petitioners had met all procedural requirements of a Rule 5 appeal and then moved on to the seminal issue, if they should actually grant the appeal.
While the plaintiffs met all procedural requirements, the court noted one important flaw to the plaintiffs’ motion; they forgot to explain why the appeals court should grant their appeal!
The court focused on the fact that a rule 5 permissive appeal relies heavily on the discretion of the appeals court. The court though would have no ability to have discretion if there is nothing listed in the appeal petition for the court to base its decision upon. Since the petitioners did not list out any reason for the appeal, then the court had no other option but than to deny their request for a permissive appeal.
The court distinguished the case before it from other cases in which it used its discretion to grant an appeal. In one case, an appeal was granted 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. In another case, a discretionary appeal was granted based upon whether a state-law deceptive practices claim predicated on the sale of a security is removable under CAFA. The important difference though between those cases and the case before the court was that those petitioners had actually explained to the court why they needed an appeal!
By: Jack Stanley