Patterson, et al v. Dean Morris LLP, et al

United States Court of Appeals
Fifth Circuit
F I L E D
May 3, 2006
Charles R. Fulbruge III
Clerk
REVISED MAY 23, 2006
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-30215
_______________
MARY PATTERSON; BRIAN BATTISTE; THOMAS THIBODEAUX;
ALEX HARTLEY; EDNA B. TAYLOR; EDWARD CARTER; HELEN CARTER; DEMETURIE
SIMMONS; MELVIN FRANKLIN; RONALD SINGLETON;
HELEN RATCLIFF; WILLIE BROWN; CHARLES K. BATTISTE;
LEONARD ACKLIN; JAWANA ACKLIN; DEBRA ELLZEY-HERRON,
Plaintiffs-Appellees,
VERSUS
DEAN MORRIS, L.L.P., ET AL.,
Defendants,
DEAN MORRIS, L.L.P.; LEADER MORTGAGE COMPANY, L.L.C.;
LONG BEACH MORTGAGE COMPANY;
MORTGAGE ELECTRONICS REGISTRATION SYSTEMS, INC.;
COUNTRYWIDE HOME LOANS, INC.; JOHN C. MORRIS, III; GEORGE B. DEAN, JR.;
CANDICE A. COURTEAU; CHARLES H. HECK, JR.; WASHINGTON MUTUAL BANK;
CHASE HOME FINANCE, L.L.C.
AS SUSSESSOR BY MERGER TO CHASE MANHATTAN MORTGAGE CORPORATION;
NATIONAL CITY BANK,
AS SUCCESSOR BY MERGER TO THE PROVIDENT BANK;
U.S. BANK, NATIONAL ASSOCIATION,
Defendants-Appellants.

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ROBERT BAUER; SALOME LUCINEO BOYD; JIM T. BRIGHT;
DEBRA BRIGHT; LIONELL J. COLEMAN; LYNN L. COLEMAN;
KEENAN DUCKWORTH; KAREN DUCKWORTH; MERCEDES DUTTON;
MATTHEW DAVID DYER; TERRY HARDY, SR.; TERESE LABEAUD;
ALTON PIERCE; WILLIE LEE RAULS; ROSALYN VELEARY-DODGE,
Plaintiffs-Appellees,
VERSUS
DEAN MORRIS, L.L.P.; BANKER’S TRUST OF CALIFORNIA;
CHASE MANHATTAN MORTGAGE CORPORATION; WASHINGTON MUTUAL;
MORTGAGE ELECTRONICS REGISTRATION SYSTEMS, INC.;
COUNTRYWIDE HOME LOANS, INC.;
BANK ONE CORPORATION; SUN FINANCE COMPANY, L.L.C.;
OCWEN LOAN SERVICING, L.L.C.,
SUCCESSOR IN INTEREST TO OCWEN FEDERAL BANK, F.S.B.;
JOHN C. MORRIS, III; GEORGE B. DEAN, JR.;
CANDICE A. COURTEAU; CHARLES H. HECK, JR.;
CHASE HOME FINANCE, L.L.C.,
AS SUCCESSOR BY MERGER TO
CHASE MANHATTAN MORTGAGE CORPORATION AND BANK ONE CORPORATION;
DEUTSCHE BANK TRUST COMPANY AMERICAS,
FORMERLY KNOWN AS BANKERS TRUST COMPANY,
Defendants-Appellants.
* * * * * * * * * * * * * * *

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* * * * * * * * * * * * * * *
MARY PATTERSON; LARRY PATTERSON; BRIAN BATTISTE;
DEBRA ELLZEY-HERRON; THOMAS THIBODEAUX; ALEX HARTLEY;
EDNA B. TAYLOR; EDWARD CARTER; HELEN CARTER; DEMETURIC SIMMONS;
MELVIN FRANKLIN; RONALD SINGLETON; HELEN RATCLIFF; WILLIE BROWN;
CHARLES K. BATTISTE; LEONARD ACKLIN; JAWANA ACKLIN,
Plaintiffs-Appellees,
VERSUS
DEAN MORRIS, L.L.P., ET AL.,
Defendants,
DEAN MORRIS, L.L.P.; LEADER MORTGAGE COMPANY, L.L.C.;
LONG BEACH MORTGAGE COMPANY;
CHASE HOME FINANCE, L.L.C.,
AS SUCCESSOR BY MERGER TO CHASE MANHATTAN MORTGAGE CORPORATION;
WASHINGTON MUTUAL BANK;
MORTGAGE ELECTRONICS REGISTRATION SYSTEMS, INC.;
COUNTRYWIDE HOME LOANS, INC.; JOHN C. MORRIS, III;
GEORGE B. DEAN, JR.; CANDICE CORTEAU;
CHARLES H. HECK, JR.; U.S. BANK, NATIONAL ASSOCIATION;
NATIONAL CITY BANK, N.A.,
SUCCESSOR BY MERGER TO PROVIDENT BANK,
Defendants-Appellants.
* * * * * * * * * * * * * * *

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* * * * * * * * * * * * * * *
MARY PATTERSON; LARRY PATTERSON; BRIAN BATTISTE;
DEBRA ELLZEY-HERRON; THOMAS THIBODEAUX; ALEX HARTLEY;
EDNA B. TAYLOR; EDWARD CARTER; HELEN CARTER; DEMETURIC SIMMONS;
MELVIN FRANKLIN; RONALD SINGLETON; HELEN RATCLIFF; WILLIE BROWN;
CHARLES BATTISTE; LEONARD ACKLIN; JAWANA ACKLIN,
Plaintiffs-Appellees,
VERSUS
DEAN MORRIS, L.L.P., ET AL.,
Defendants,
DEAN MORRIS, L.L.P.; LEADER MORTGAGE COMPANY, L.L.C.;
LONG BEACH MORTGAGE COMPANY;
CHASE HOME FINANCE, L.L.C.,
AS SUCCESSOR BY MERGER TO CHASE MANHATTAN MORTGAGE CORPORATION;
WASHINGTON MUTUAL BANK; U.S. BANK, NATIONAL ASSOCIATION;
MORTGAGE ELECTRONICS REGISTRATION SYSTEM, INC.;
COUNTRYWIDE HOME LOANS, INC.; JOHN MORRIS, III;
GEORGE B. DEAN, JR.; CANDICE A. COURTEAU; CHARLES H. HECK, JR.;
NATIONAL CITY BANK, N.A.,
SUCCESSOR BY MERGER TO PROVIDENT BANK,
Defendants-Appellants.

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_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:05-CV-2191
m 2:05-CV-2189
m 2:05-CV-2178
m 2:05-CV-2177
_________________________
Before SMITH, GARZA , and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Defendants appeal an order remanding these
class actions to state court for want of jurisdic-
tion under the Class Action Fairness Act of
2005 (“CAFA”), Pub. L. No. 109-2, 119
Stat. 4 (2005), and on the ground of equitable
remand in bankruptcy. Finding the remand
order proper in all respects, we affirm it in
regard to CAFA, and we dismiss, for want of
jurisdiction, the remand order in the Bauer
matter and the equitable remand order in the
Patterson matter.
I.
We may review orders of remand for as-
serted errors in the application of CAFA.1 As
an initial matter, defendants allege that the dis-
trict court erred by assigning the burden of
proof to them to show that removal was appro-
priate.2 It is uncertain from the court’s opin-
ion, however, how it assigned the burden of
proof. It relied primarily on undisputed doc-
uments in the record, such as a fee schedule,
fax confirmations, receipts, and a written
notice, to determine the commencement date
of the suit, and hence, the applicability of
CAFA. Because this evidence suffices to an-
swer the jurisdictional question, the allocation
of the burden of proof is not relevant to the
resolution of this case.
CAFA provides for original jurisdiction in
federal court of certain class actions “com-
menced on or after the date of enactment,”
which is February 18, 2005. Id. Plaintiffs al-
lege that their actions commenced on February
17, 2005, the date they fax-filed their com-
plaints. Defendants allege plaintiffs failed to
pay required fees at the time of filing, and
1 See 28 U.S.C. § 1453(c)(1); Wallace v. La. 1
Citizens Prop. Ins. Corp., 2006 WL 848585, at *2 2
(5th Cir. Mar. 31, 2006). 3
2 But see Brill v. Countrywide Home Loans, 1
Inc., 427 F.3d 446, 447-48 (7th Cir. 2005) (apply- 2
ing the “well established” rule that the proponent of 3
removal bears the burden of persuasion, noting that 4
none of CAFA’s language “is even arguably 5
relevant” to the question, and refusing to give the 6
force of law to legislative history purporting to 7
shift the burden to the proponent of remand). 8

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therefore the actions did not commence until
May 6, when plaintiffs amended their com-
plaints, or June 14, when they paid the balance
of the fees. It is undisputed that, if plaintiffs’
actions commenced on or after February 18,
CAFA would apply, and remand would be
inappropriate.
Louisiana law provides that a party may file
an action by fax provided that, within five days
of filing, it forwards “[t]he applicable filing fee,
if any[, and a] transmission fee of five dollars”
to the clerk of court. LA. R.S. 13:850 § B(2),
(3). If the filing party fails to comply, the fax
transmission “shall have no force or effect.” Id.
§ C.
Plaintiffs received a fax confirmation of their
filing on February 18, which listed the fees for
the Patterson suit as $5,127.00 and the fees for
the Bauer suit as $4,689.00. On February 22,
plaintiffs paid the clerk of court $3,039.00 for
each of these cases. On May 12, 2005, they
received a letter indicating they owed an addi-
tional $2,145.50, which they tendered on June
14. Defendants conclude from this late pay-
ment that plaintiffs did not comply with the
five-day deadline of LA. R.S. 13:850, so the
effective date of their suit’s commencement
was postponed until after February 18.
Plaintiffs, by contrast, argue that they paid
all the fees requested by the clerk when they
arrived at court on February 22, and became
aware they owed additional money only when
the court notified them on May 12 of the
clerk’s error. Plaintiffs aver that they could not
have paid the clerk additional fees earlier, even
if they were so inclined, because all money paid
to the court is non-refundable, and the court is
not authorized to hold money on account.
Therefore, plaintiffs contend they paid the
“applicable filing fee” as required by statute at
the relevant time, i.e., the amount requested by
the clerk on February 22.
Based on the record, plaintiffs timely paid
the “applicable filing fee” as defined in Hall v.
Reber, 870 So. 2d 424 (La. App. 3d Cir.), writ
denied, 876 So.2d 809 (La. 2004). There, the
plaintiff paid $175.00 within five days of fax-
filing to cover the filing fee and transmission
fee. The clerk’s office later sent a notice that
an additional $125.00 was required to com-
plete processing of the suit, and plaintiff did
not pay the additional amount until after the
suit had prescribed. The breakdown of fees
was as follows:
Base Deposit of Suit (one service
included): $ 200.00
Additional Service (at $50.00 each):
$100.00 . . . .
Total amount required for filing of suit:
$300.00
Total amount already paid by your office:
$175.00
TOTAL AMOUNT STILL OWED BY
YOUR OFFICE: $125.00
Id. at 427. The court reasoned that because
the total filing fee was $150.00 (the $200.00
base deposit minus $50.00 for one service),
the plaintiff had tendered enough money to
cover both the filing and transmission fees
($175.00 > $150.00 + $5.00) as required by
LA. R.S. 13:850. Therefore, the suit com-
menced as of the filing date despite plaintiff’s
failure immediately to provide funds to effect
service. See id. at 427-28.
When plaintiffs received notice on May 12
that they owed additional fees, the breakdown
read as follows:
Extra Plaintiffs (12 V $84.00): $1,008.00

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Extra Defendants (13 V $90.00):
$1,170.00
Petition Fee: $3,006.50
Total Fee Due: $5,184.50
Payment Received: $3,039.00
Balance Due: $2,145.50
Plaintiffs’ initial payment on February 22 was
sufficient to cover the petition fee and transmis-
sion fee ($3,039.00 > $3,006.50 + $5.00);
therefore, Hall is precisely on point. Plaintiffs’
failure to pay fees to cover the costs of addi-
tional parties does not affect the commence-
ment date of the suit under Louisiana law. In
fact, though Hall provides no explanation of
the plaintiff’s failure to pay in full, plaintiffs
here provide the valid excuse that they timely
paid all money requested on February 22.3
The cases cited by defendants deal with situ-
ations in which the plaintiff failed to provide
sufficient funds to cover the statutorily required
filing and transmission fees,4 so those decisions
are inapplicable to the facts of this case. CAFA
does not apply and cannot serve as a basis for
federal jurisdiction.5
II.
A.
The underlying claim is that defendants
overcharged plaintiffs in connection with col-
lection and foreclosure proceedings initiated
by defendants. Plaintiffs filed two class action
lawsuits, Patterson and Bauer, which were
later consolidated. The Patterson class con-
sists of “only those persons whose bankruptcy
filing would or might support removal to fed-
eral court and or federal jurisdiction for their
claim.” The Bauer class represents all other
Louisiana residents.
Defendants maintain that, even if CAFA
does not provide the district court with juris-
diction, it would still have power to hear this
case under the general bankruptcy removal
statute. See 28 U.S.C. § 1452. The court
found that it lacked bankruptcy jurisdiction
over Bauer, because the class had no members
in bankruptcy and therefore had only state law
claims.6 Although bankruptcy jurisdiction over
3 That the $3,006.50 “petition fee” represents the 1
“applicable filing fee” in this case becomes more 2
evident when one examines plaintiffs’ receipt of 3
February 22, which lists a charge of $2,996.50 for 4
“class action lawsuits” and a $10.00 “indig[ent] 5
leg[al] fee.” The receipt also includes $32.50 for 6
“miscellaneous” charges, which would suffice to 7
cover the cost of transmission. 8
4 See, e.g., Brown v. Am. Nat’l Prop. & Cas. 1
Co., 720 So. 2d 1278, 1289 (La. App. 4th Cir. 2
1998); Antoine v. McDonald’s Restaurant, 734 So. 3
2d 1257, 1260 (La. App. 3d Cir. 1999); Tenney v. 4
Burlington N. & Santa Fe Ry., 863 So. 2d 526, 529 5
(La. 2004). 6
5 Defendants also argue that their May 6 1
amended complaints recommenced their actions, 2
making CAFA jurisdiction appropriate. Because 3
they offer no evidence that they presented this 4
specific claim to the district court, we consider it 5
waived on appeal. See Little v. Liquid Air Corp., 6
37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc). 7
6 The Bauer class originally included two 1
named plaintiffs, Keenan and Karen Duckworth, 2
who sought bankruptcy protection. Plaintiffs 3
moved to dismiss their claims, without prejudice, 4
from the Bauer class, but lender defendant 5
Deutsche Bank Trust Company opposed the mo- 6
tion based on a previous motion to compel arbitra- 7
tion with respect to the Duckworths. The court 8
granted Deutsche Bank’s motion and remanded 9
(continued...)

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Patterson was conceded, the court equitably
remanded the action, applying Browning v.
Navarro, 743 F.2d 1069, 1077 n.21 (5th Cir.
1984). A court may remand a cause of action
in bankruptcy on any equitable ground, and
“[a]n order entered under [the relevant section]
remanding a claim or cause of action, or a de-
cision to not remand, is not reviewable by ap-
peal or otherwise by the court of appeals under
section 158(d), 1291, or 1292 of this title.” 28
U.S.C. § 1452(b).
B.
Despite the fact that the plain language of
this section divests us of appellate jurisdiction
over the equitable remand order, we must de-
cide whether CAFA provides an independent
basis for review. It does not.
CAFA explicitly limits the power of removal
of class actions to “case[s] under this section,”
i.e., § 1453. 28 U.S.C. § 1453(c)(1). “The
application of § 1453(c)(1) is therefore limited
to the context of CAFA.” Wallace, 2006 WL
848585, at *2. Though CAFA also provides
that we “may accept an appeal from an order of
a district court granting or denying a motion to
remand a class action,” this precatorylanguage
cannot serve as a mandate for us to reach
otherwise non-reviewable remand decisions
once we determine that CAFA is inapplicable.
Ordinarily, “once a matter related to a
bankruptcy case is equitably remanded, it is
not subject to federal appellate review on any
basis.” Arnold v. Garlock, Inc., 278 F.3d 426,
438 (5th Cir. 2001). CAFA provides only for
review of a remand order premised on the
prerequisites of § 1453 or on claims with an
adequate nexus to CAFA. See Wallace, 2006
WL 848585, at *2. There is no such nexus
here.
We do not need to consider the Browning
equitable factors to determine whether juris-
diction under CAFA obtains; we need only
consider the commencement date of plaintiffs’
claims. Furthermore, nothing in the text of
CAFA suggests that Congress intended to sup-
plant its policy of prohibiting appellate review
of equitable remand orders in bankruptcy for
class actions that do not satisfy CAFA’s re-
quirements.
Because these actions commenced on Feb-
ruary 17, 2005 (one day before CAFA took ef-
fect), CAFA cannot provide the basis for our
review of the equitable remand. To hold oth-
erwise would be to treat plaintiffs differently
from every other bankrupt class subject to
equitable remand before the enactment of
CAFA.
Defendants urge that we apply the rule of
Yamaha Motor Corp., U.S.A. v. Calhoun, 516
U.S. 199, 205 (1996), which stated, in the
context of the interlocutory appeal statute, 28
U.S.C. § 1292(b), that “appellate jurisdiction
applies to the order certified to the court of
6(...continued)
Bauer, concluding that no federal questions re- 10
mained following the dismissal of the Duckworths 11
from the suit. Defendants argue that the Duck- 12
worths’ claims were merely stayed, not dismissed, 13
pending arbitration, and that a post-removal event 14
cannot defeat jurisdiction. 15
“Jurisdictional remands premised on post-re- 16
moval events are not reviewable.” Linton v. Airbus 17
Indus., 30 F.3d 592, 599 (5th Cir. 1994); see also 18
Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1028- 19
29 (5th Cir. 1991); In re Merrimack Mut. Fire Ins. 20
Co., 587 F.2d 642, 647-49 (5th Cir. 1978). As we 21
have explained, because CAFA does not apply to 22
Bauer, it cannot provide the basis for review of the 23
order of remand. 24

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appeals, and is not tied to the particular ques-
tion formulated by the district court.” The Ya-
maha Court also stated, however, that “[t]he
court of appeals may not reach beyond the cer-
tified order to address other orders made in the
case.” Id.
The judgment entered by the district court
states in full as follows:
IT IS ORDERED THAT plaintiffs’ Mo-
tion to Remand is hereby GRANTED pur-
suant to 28 U.S.C. § 1452(b), and Civil Ac-
tion No. 05-2177, consolidated with Civil
Action Nos. 05-2189 and 05-2191, are all
hereby equitably REMANDED to the Civil
District Court for the Parish of Orleans. IT
IS FURTHER ORDERED THAT Civil Ac-
tion No. 05-2178 is likewise equitably RE-
MANDED.
Because jurisdiction under CAFA is improper,
this is not a “case under . . . section” § 1453 for
purposes of further appellate review. All that
remains is an order equitably remanding these
actions under § 1452(b), which we cannot
reach without contravening a plain statutory
command.
In Brill, 427 F.3d at 451-52, the court re-
viewed a remand order under the Telephone
Consumer Protection Act because the district
court had also rejected removal under CAFA.
The Brill court, however, did not confront stat-
utory text proscribing appellate jurisdiction
over remand orders other than the general lan-
guage of 28 U.S.C. § 1447(d), which CAFA
explicitly amended. Neither Yamaha nor Brill
dealt with competing statutory provisions, one
purporting to grant jurisdiction over a remand
order and one purporting to take it away,
without any indication how they ought to be
reconciled.7 Thus, the best way to harmonize
these commands is to heed the text of
§ 1452(b), depriving us of jurisdiction over the
equitable remand order, at least where CAFA
does not provide an independent basis for
jurisdiction.8
In summary, the remand order with respect
to CAFA is AFFIRMED, and the appeals of
the remand order in Bauer and the equitable
remand order in Patterson are DISMISSED
for want of jurisdiction. The mandate shall
issue forthwith.
7 The court in Brill did reason that it was “free 1
to consider any potential error in the district court’s 2
decision, not just a mistake in application of the 3
Class Action Fairness Act.” Brill, 427 F.3d at 4
451. To the extent that the reasoning in Brill is in 5
tension with today’s opinion, we decline to adopt it, 6
because it conflicts with the reasoning of Williams, 7
which limits our jurisdiction over remand orders to 8
the context of CAFA. See Williams, 2006 WL 9
848585, at *2. 10
8 We also note that § 1453(c)(1) uses permis- 1
sive language to define the scope of our authority 2
on appeal: “[A] court of appeals may accept an 3
appeal from an order of a district court granting or 4
denying a motion to remand a class action.” It is 5
appropriate to decline to exercise this discretion 6
where, as here, granting the appeal would contra- 7
vene specific statutory text. 8

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