Braud, et al v. Transport Svc Co

United States Court of Appeals
Fifth Circuit
F I L E D
April 6, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-30088
_______________
PAMELA BRAUD; IBRAHIM AUTAMARI; NICOLE CALVIN; DAVID JACKSON; DJUANNA
KNAPPER; DERRYL DUNN, SR.; TROY LAMBERT,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;
Plaintiffs-Appellees,
VERSUS
TRANSPORT SERVICE COMPANY OF ILLINOIS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________

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2
Before SMITH, GARZA, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This case presents an issue of first impres-
sion for this court: whether amending a com-
plaint to add a defendant “commences” a new
suit under the Class Action Fairness Act of
2005 (“CAFA”), Pub. L. 109-2, 119 Stat. 4.
We answer in the affirmative and, for that rea-
son, we reverse the district court’s order of re-
mand, and we remand to that court for further
proceedings..
I.
On August 30, 2004, Pamela Braud and
certain other plaintiffs (the “Braud plaintiffs”)
filed a “Class Action Petition for Damages” in
state court. On April 8, 2005, the Braud plain-
tiffs amended their petition to name as an ad-
ditional defendant Ineos Americas, LLC (“In-
eos”), which plaintiffs contend was the owner
and co-shipper of the chemical that allegedly
spilled. Ineos was served with the original and
supplemental class action petition on April 19,
2005.
On May 19, 2005, Ineos timely removed the
action to federal court, basing removal juris-
diction on CAFA. The Braud plaintiffs are citi-
zens of Louisiana, and Ineos is a foreign cor-
poration authorized to do business in Louisiana.
On June 17, 2005, the Braud plaintiffs
moved to remand to state court, and on July 12,
2005, they filed a purported unopposed motion
to dismiss Ineos. By order entered on Decem-
ber 9, 2005, the district court remanded, finding
that CAFA does not apply because the Braud
plaintiffs had filed their initial complaint before
CAFA’s effective date, despite the fact that In-
eos was not named as a defendant until after the
effective date, which is February 18, 2005.
Transport Service Company of Illinois
(“Transport”), pursuant to 28 U.S.C.
§ 1453(c), filed on December 16, 2005, a
timely application for leave to appeal,1 which
we granted on January 27, 2006.2
II.
Section 9 of CAFA 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.” 119 Stat. at
1 CAFA’s interlocutory appeal provision per-
mits a court of appeals to “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 less than 7 days after
entry of the order.” 28 U.S.C. § 1453(c)(1) (2005
Supp.). This provision creates an exception to the
general rule that remand orders are not appealable.
See Patterson v. Dean Morris, L.L.P., No. 06-
30215, 2006 U.S. App. LEXIS 7174, at *2-*3 (5th
Cir. Mar. 22, 2006).
2 CAFA, in 28 U.S.C. § 1453(c)(2), provides
that once we accept an appeal, we must “complete
all action . . . not later than 60 days after the date
on which such appeal was filed, unless an exten-
sion is granted under paragraph (3).” Section
1453(c)(3)(B), in turn, allows us to grant an ex-
tension of the 60-day period for up to 10 days “for
good cause shown and in the interests of justice.”
By order of March 7, 2006, we granted plaintiffs’
motion for a 10-day extension of the final disposi-
tion date to April 7, 2006.
Our disposition thus meets CAFA’s require-
ment of expedited consideration. The period for
consideration of an appeal is measured from the
date (January 27) on which we granted the appli-
cation for leave to appeal. Patterson, 2006 U.S.
App. LEXIS, at *5-*10. The 70th day after Janu-
ary 27 is April 7.

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3
14. To determine whether a lawsuit was com-
menced on or after February 18, 2005, the dis-
trict court relied on Federal Rule of Civil Pro-
cedure 3, which, as plaintiffs correctly point
out, reads that “[a] civil action is commenced
by filing a complaint with the court.” Despite
the logical of this argument, the courts of ap-
peals that have examined the issue have un-
animously held that when a lawsuit is initially
“commenced” for purposes of CAFA is deter-
mined by state law.3 We agree.
As the court in Bush explained, CAFA
broadens diversity jurisdiction for certain qual-
ifying class actions and authorizes their re-
moval, and thus, “given its context, CAFA’s
‘commenced’ language surely refers to when
the action was originally commenced in state
court.” Bush, 425 F.3d at 688. Furthermore,
when an action is commenced in state court is
determined based on the state’s own rules of
procedure.4 In most states “commencement”
occurs either when the suit is filed or when the
complaint or summons is served, but in Con-
necticut the action commences by service.5 In
Louisiana, a suit is commenced by filing of a
pleading presenting the demand to a court of
competent jurisdiction. LA. C.C.P. art. 421.
Therefore, the Braud plaintiffs’ original action
commenced on August 30, 2004.
A distinct issue, however, is whether an
amendment of the complaint through the
addition of a new defendant “commences” a
new suit for purposes of CAFA. The defen-
dants urge us to employ the reasoning of
Knudsen I, 411 F.3d at 807, and Schillinger v.
Union Pac. R.R., 425 F.3d 330 (7th Cir.
2005), to hold that the post-CAFA amendment
of a pre-CAFA complaint by adding a new
defendant “commences” a new suit. Plaintiffs
respond that (1) CAFA was not meant to be
retroactive; (2) Knudsen I is inapposite, and
any language that may support appellants’
position is “mere dicta;” (3) even applying
Knudsen I’s reasoning, no new suit would
commence here, because the addition of Ineos
“related back” to the original complaint; and
(4) in any event, Ineos’s dismissal after re-
moval and before the ruling on the motion to
remand ousted the court of subject matter
jurisdiction.
A.
Plaintiffs’ argument regarding “retroactiv-
ity” is without merit. Although CAFA is
meant to apply only to suits “commenced” af-
ter the effective date, and courts apply a pre-
3 See Bush v. Cheaptickets, Inc., 425 F.3d 683,
689 (9th Cir. 2005); Natale v. Pfizer, Inc., 424 F.3d
43, 44 (1st Cir. 2005); Plubell v. Merck & Co., 434
F.3d 1070, 1071-72 (8th Cir. 2006); Pritchett v.
Office Depot, Inc., 420 F.3d 1090 (10th Cir. 2005);
Knudsen v. Liberty Mut. Ins. Co. (“Knudsen I”),
411 F.3d 805 (7th Cir. 2005).
4 Pace v. DiGuglielmo, 544 U.S. 408 (2005)
(looking to state law to determine when a pleading
has been “properly filed” for purposes of a federal
time limit). See also Herb v. Pitcairn, 324 U.S.
117, 120 (1945) (“Whether any case is pending in
the Illinois courts is a question to be determined by
Illinois law”); Bush, 425 F.3d at 688 (noting 28
U.S.C. § 1446(b)’s similar reference to “commence-
ment” of a suit and stating that “a federal court
must honor state court rules governing commence-
ment of civil actions when an action is first brought
in state court and then removed to federal court”)
(continued...)
4(...continued)
(quoting Cannon v. Kroger Co., 837 F.2d 660,
664 (4th Cir. 1988)).
5 See Bush, 425 F.3d at 688, and cases cited
therein.

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4
sumption against the retroactivity of a statute
absent a plain congressional intent to the con-
trary, Landgraf v. USI Film Prods., Inc., 511
U.S. 244, 280 (1994), the issue is not whether
CAFA should apply to suits “commenced” be-
fore February 18, 2005, but whether the addi-
tion of a new defendant “commences” a new
suit. That is, if under the applicable decisional
law, Ineos’s addition “commenced” a new suit
on April 8, 2005, the removal would not be
retroactive, because the suit would be consid-
ered “commenced” on or after February 18,
2005.
B.
Plaintiffs’ argument that Knudsen I and the
other cases cited by defendants are inapposite
and provide mere “dicta” is also misplaced.
Even if the statements are dicta, they are per-
suasive; moreover, the court in Schillinger ex-
plained that the defendants “correctly observe
that in general, ‘a defendant added after Febru-
ary 18 could remove because suit against it
would have been commenced after the effective
date[.]’” Schillinger, 425 F.3d at 333 (quoting
Schorsch v. Hewlett-Packard Co., 417 F.3d
748, 749 (7th Cir. 2005)). The Schillinger
court noted that this principle was inapplicable
to the defendant in that case because his addi-
tion to the amended complaint was a “scriv-
ener’s error.” Id.
C.
We agree with the Seventh Circuit that
amendments that add a defendant “commence”
the civil action as to the added party.6 We
reach this conclusion based on two considera-
tions, of which only the latter has been dis-
cussed by that court.
First, the district court’s remark that
“there’s no specific language in the CAFA
legislation itself . . . that would support that
position that if a new party was added [post-
CAFA to a pre-CAFA case then] CAFA
would apply” misses the mark.7 Precisely
because CAFA does not define “commence-
ment” of an action, it is obvious that CAFA is
not intended to replace caselaw deciding
when a lawsuit is considered “commenced” as
to a new defendant.
The caselaw holds that generally “a party
brought into court by an amendment, and who
has, for the first time, an opportunity to make
defense to the action, has a right to treat the
proceeding, as to him, as commenced by the
process which brings him into court.” United
States v. Martinez, 195 U.S. 469, 473 (1904)
((citing Miller v. M’Intyre, 31 U.S. 61
6 See Schorsch, 417 F.3d at 749 (noting that “a
defendant added after February 18 could remove be-
cause suit against it would have been commenced
after the effective date”).
7 Further, as explained in Werner v. KPMG
LLP, 2006 WL 295394 (S.D. Tex. Feb. 7, 2006),
which undertook an exhaustive analysis of the
caselaw on this issue, “most courts examining
post-CAFA pleading amendments in a suit pending
pre-CAFA recognize that such amendments can
commence a ‘new’ lawsuit and create federal re-
moval jurisdiction. Moreover, the court in Weekley
v. Guidant Corp., 392 F. Supp. 2d 1066 (E.D.
Ark. 2005), which held, like the district court in the
instant case, that a class action is “commenced”
only once, when the original complaint is filed, has
been rejected by implication by the circuit court
from that jurisdiction. In Plubell v. Merck & Co.,
434 F.3d 1070 (8th Cir. 2006), the court adopted
the reasoning employed by the Seventh Circuit and
examined whether the amended pleading related
back to the filing of the original complaint. Some
authorities (none at the circuit level) support plain-
tiffs’ position. E.g., Robb v. Stericycle, Inc., 2005
WL 2304475 (W.D. La. Aug. 19, 2005).

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5
(1832)). As the Miller Court explained, this is
because it “would be a novel and unjust princi-
ple to make the defendants responsible for a
proceeding of which they had no notice.”
Miller, 31 U.S. at 64.8 Therefore, if a defen-
dant was added post-CAFA, the suit com-
mences post-CAFA as to him.
Second, we agree with the Knudsen I court
that the addition of a new defendant “opens a
new window of removal” under 1446(b).9 Sec-
tion 1446(b) indicates that a case that was pre-
viously non-removable can become removable
when a new party is added. As explained in
WRIGHT, MILLER & COOPER, supra, § 3732 at
311-48, § 1446(b) “supplements the thirty-day
removal period described in the first paragraph
of the provision,” which covers only the period
for effecting removal to federal court following
the “receipt or filing” of the initial pleading.
That is, if an original complaint is not
amended, removal must be determined based
only on the law and facts as to removability at
the time of filing or receipt of the initial plead-
ing under § 1446(b) ¶ 1. If the complaint is
amended, however, § 1446(b) ¶ 2 provides that
the new defendant has a new window to re-
move as of the date of receipt of service of the
amended complaint:
[I]f the case stated by the initial pleading is
not removable, a petition for removal may
be filed within thirty days after receipt by
the defendant, through service or other-
wise, of a copy of an amended pleading,
motion, order or other paper from which it
may first be ascertained that the case is one
which is or has become removable.
28 U.S.C. § 1446(b). Therefore, as to the new
defendant, removability is determined as of the
date of receipt of service of the amended
complaint, not as of the date on which the
original suit was filed in state court.
Furthermore, under CAFA a new defendant
may remove regardless of whether it was add-
ed more than one year after the original com-
plaint was filed in state court. Therefore, the
district court incorrectly pointed out that the
addition of a new party does not commence a
new suit because (as the district court improp-
erly reasoned) Congress “give[s] you a specific
time period within which you must remove or
forever lose your right to remove without re-
gard to if you happen to add a partySSif the
plaintiff decides to add a party a year and a
half from now, your time period doesn’t run
again.”
Instead, a new defendant can remove even
if the plaintiff decided to add it more than one
year after the initial suit. Therefore, there is
no indication that the time when the initial suit
was filed has any relevance as to when an ac-
tion “commences” under CAFA for an amend-
ment adding a new defendant. Rather, the cor-
rect approach is that used in Adams, Martinez,
and Miller, which, because of concerns re-
garding notice and limitations, looked at com-
mencement as to a new defendant as of the
date of service of the amended pleading (or
receipt of that pleading under 1446(b)).
8 See also Adams v. Fed. Materials Co., No.
5:05-CV-90-R, 2005 WL 1862378 (W.D. Ky. July
28, 2005) (relying on, inter alia, Martinez and
Miller to hold that adding a defendant after CAFA’s
effective date allows that defendant to remove,
because the civil action has newly commenced as to
it).
9 Knudsen I, 411 F.3d at 807 (citing 28 U.S.C.
§ 1446(b) and CHARLES ALAN WRIGHT,ARTHUR R.
MILLER & EDWARD H. COOPER, 14C FEDERAL
PRACTICE AND PROCEDURE § 3732, at 311-48 (3d
ed.1998)).

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Thus, although “an amendment of the com-
plaint will not revive the period for removal if a
state court case previously was removable but
the defendant failed to exercise his right to do
so,” a different result generally is reached if the
pleading amendment provides (1) a “new basis
for removal” or (2) “changes the character of
the litigation so as to make it substantially a
new suit.” 14C WRIGHT, MILLER & COOPER,
supra, § 3732 at 311-48.10
Ineos’s addition “changes the character of
the litigation so as to make it substantially a
new suit,” because as we explained, the addi-
tion of the new defendant commences the law-
suit as to it. This permits removal even absent
any discussion of “relation back,” provided, of
course, that the defendant is indeed a “new”
defendant.11
This distinction for new defendants, as op-
posed to new claims, is a distinction without a
difference, because the same result is reached as
though the relation back test were used: Under
federal law, adding a new defendant generally
does not relate back to the filing of the original
complaint unless Federal Rule of Civil Pro-
cedure 15(c)(3) applies.12 Also, under
10 An amendment provides a “new basis” for re-
moval where, in a previously non-removable case,
the only non-diverse defendant is dismissed, or
where the amount in controversy is increased so as
to exceed the diversity jurisdictional threshold. In
contrast, the “substantially new suit” analysis looks
to whether the amendment of a previously remov-
able suit makes it a substantially new suit so as to
restart the removal window.
11 Knudsen I and the other Seventh Circuit cases
do not employ any relation-back analysis with re-
spect to the addition of a new defendant. See, e.g.,
Knudsen I, 411 F.3d at 808 (“If in the future Lib-
erty Mutual Fire Insurance Company should be
added as a defendant, it could enjoy a right to re-
move under the 2005 Act, for suit against it would
have been commenced after February 18, 2005.”)
12 Werner, 2006 WL 295394, at *10 & n.14.
In its text, rule 15(c)(3) appears to refer only to the
changing or substitution of defendants, not to the
addition of new defendants without any substitution
of the old ones. The Advisory Committee Notes
make plain, however, that a case involving misno-
mer of a defendant is an exception to the more
general rule that the addition of a new defendant
commences a new proceeding:
Relation back is intimately connected with the
policy of the statute of limitations. The policy
of the statute limiting the time for suit against
the Secretary of HEW would not have been of-
fended by allowing relation back in the situ-
ations described above. For the government
was put on notice of the claim within the stated
periodSSin the particular instances, by means of
the initial delivery of process to a responsible
government official (see Rule 4(d)(4) and (5)).
In these circumstances, characterization of the
amendment as a new proceeding is not respon-
sive to the realty [sic], but is merely ques-
tion-begging; and to deny relation back is to de-
feat unjustly the claimant’s opportunity to
prove his case.
Advisory Committee Notes to FED. R. CIV. P. 15.
Furthermore, because as the Notes make plain,
relation back is intimately connected with the stat-
ute of limitations, it is apparent that the addition of
a new defendant suffers from the same
notice/limitations problems as does the substitution
of a defendant. Therefore, only the addition of a
defendant that satisfies the notice criteria in rule
15(c)(3) relates back to the original complaint. See
also Godfrey v. E. Gas & Fuel Assocs, 71 F.
Supp. 175 (D. Mass. 1947) (“However, if the ef-
fect of the amendment was to bring into the case a
new party defendant that was not served with a
(continued...)

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Louisiana law the addition of a new defendant
does not relate back to the original complaint
unless a misnomer situation as described in rule
15(c)(3) applies.13
Although plaintiffs argue that Ineos’s addi-
tion related back to the original complaint be-
cause it arose out of the same transaction or
occurrence, this assertion is, at best, careless.
Even if the “misnomer” exception described in
Ray, 434 So. 2d at 1087 (or the identical rule
15(c)(3)) were to apply, plaintiffs discussed
only the same-transaction-or-occurrence prong
for relation back.14 Both federal and Louisiana
12(...continued)
summons or complained against in the original
action, the amendment will not relate back to the
time of the original complaint . . . .”); Royal Wor-
cester Corset v. White, 40 F. Supp. 267 (D. Mass.
1941) (same); Williams v. Pa. R.R., 91 F. Supp.
652 (D. Del. 1950) (“If the amendment is granted
and its effect is merely to correct a misnomer, there
is no doubt that the amendment would relate back in
time to the date of the original complaint. But if its
effect is to make a new party to the suit, the
amendment would not relate back . . . .”); Messelt v.
Sec. Storage Co., 14 F.R.D. 507 (D.C. Del. 1953);
Schram v. Poole, 97 F.2d 566 (9th Cir. 1938);
Davis v. L.L. Cohen & Co., 268 U.S. 638 (1925);
United States v. Martinez, 195 U.S. 469, 473
(1904) (explaining that the general rule for statute
of limitations purposes is that “a party brought into
court by an amendment, and who has, for the first
time, an opportunity to make defense to the action,
has a right to treat the proceeding, as to him, as
commenced by the process which brings him into
court”). Rule 15(c)(3) allows relation back of a
change of a party only where (i) “the claim or
defense asserted in the amended pleading arose out
of conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading;”
(ii) the party to be brought in “has received such
notice of the institution of the action that the party
will not be prejudiced in maintaining a defense on
the merits;” (iii) the party to be brought in “knew or
should have known that, but for a mistake con-
cerning the identity of the proper party, the action
would have been brought against the party;” and
(iv) the requirements in (ii) and (iii) were met within
the applicable statutory limitations period.
13 See Ray v. Alexandria Mall, 434 So. 2d 1083,
1087 (La. 1983) (noting that Louisiana procedural
law with respect to relation back is modeled after
(continued...)
13(...continued)
the federal rule and that relation back does not “ap-
ply where the amendment seeks to add new and
unrelated defendants, since this would be
tantamount to assertion of a new cause of action”).
Louisiana law nonetheless allows relation back for
a misnomer case, under the same circumstances as
those under rule 15(c)(3):
(1) The amended claim must arise out of the
same transaction or occurrence set forth in the
original petition; (2) The purported substitute
defendant must have received notice of the in-
stitution of the action such that he will not be
prejudiced in maintaining a defense on the mer-
its; (3) The purported substitute defendant must
know or should have known that but for a mis-
take concerning the identity of the proper party
defendant, the action would have been brought
against him; (4) The purported substitute de-
fendant must not be a wholly new or unrelated
defendant, since this would be tantamount to
assertion of a new cause of action which would
have otherwise prescribed.
Id.
14 It is less certain whether state law provides
the applicable rules for the relation back analysis.
Compare Schillinger, 425 F.3d at 335 (noting that
CAFA may make state rules about statutes of limi-
tation irrelevant to the type of commencement that
is necessary for federal removal and expressly de-
ferring resolution of the issue) with Schorsch, 417
(continued...)

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8
procedural law also require, among other
things, that the new defendant “knew or should
have known that, but for a mistake concerning
the identity of the proper party, the action
would have been brought against the party.”15
There is no indication that Ineos had that
knowledge. Accordingly, the addition of Ineos
does not relate back to the original complaint,
because Ineos was an additional defendant, not
a misnamed defendant.16
D.
We reject plaintiffs’ contention that Ineos’s
dismissal after removal ousted the district court
of subject matter jurisdiction. Under Louisiana
law, the Braud plaintiffs commenced their suit
against Ineos several months after the effective
date of CAFA. Because the amended pleading
satisfied CAFA’s jurisdictional provisions, at
that point the federal court had jurisdiction un-
der 28 U.S.C. § 1332, as amended by CAFA.
We agree with the court in Dinkel v. General
Motors Corp., 400 F. Supp. 2d 289, 294 (D.
Me. 2005), that it is the “action,” not claims
against particular defendants, that is remov-
able, so the subsequent dismissal of the remov-
ing defendant cannot render the entire lawsuit
improperly removed.
The language of CAFA is plain that any
single defendant can remove (without the con-
sent of other defendants) the entire class action
(not merely the claims against that defendant):
“A class action may be removed to a district
court of the United States . . . without regard
to whether any defendant is a citizen of the
State in which the action is brought, except
that such action may be removed by any
defendant without the consent of all defen-
dants.” 28 U.S.C. § 1453(b). Further, as the
Senate Report on CAFA notes,
The law is clear that, once a federal court
properly has jurisdiction over a case re-
moved to federal court, subsequent events
generally cannot “oust” the federal court of
jurisdiction. While plaintiffs undoubtedly
possess some power to seek to avoid feder-
al jurisdiction by defining a proposed class
in particular ways, they lose that power
once a defendant has properly removed a
class action to federal court.
Id. (citing Judiciary Committee Report on
Class Action Fairness Act, S. Rep. No. 109-14
(1st Sess. 2005), reprinted in 2005
U.S.C.C.A.N. 3, 2005 WL 627977, at *43).
A federal court nonetheless may properly
remand if the amendment dismissing the re-
moving defendant was made for legitimate
purposes, provided, of course, that CAFA’s
14(...continued)
F.3d at 749 (holding that relation back with respect
to the addition of a new claim is to be decided under
state law). The result in this case is the same under
either of those opinions, however.
15 The four-prong federal and Louisiana tests for
relation back are identical. See supra notes 11 and
12.
16 This conclusion is limited to the addition of
new defendants. We do not decide when or whether
the addition of new claims to a pre-CAFA case
provides a new removal window. See Knudsen v.
Liberty Mut. Ins. Co. (“Knudsen II”), 435 F.3d 755
(7th Cir. 2006) (holding that the post-CAFA change
in claims amounted to a substantially new suit and
that there was no relation back because the old
pleading did not furnish defendants with notice that
plaintiffs contested any decision made by its associ-
ates/subsidiaries, which used a different adjustment
system).

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9
minimal diversity requirement is not satisfied
after the dismissal of the removing defendant.
As the Schillinger court explained,
When a plaintiff amends his complaint after
removal in a way that destroys diversity, a
district court must consider the reasons
behind the amendment in determining
whether remand is proper. If the plaintiff
amended simply to destroy diversity, the dis-
trict court should not remand. See 14B
CHARLES ALAN WRIGHT, ARTHUR R. MIL-
LER, & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE (1998 and
Supp.), § 3723, at p. 591 (citing district
court cases). But an amendment that is
made for legitimate purposes may be a prop-
er ground for a remand to state court.
Schillinger, 425 F.3d at 334. Absent the prof-
fer of any reason for Ineos’s dismissal, it ap-
pears that its dismissal was intended solely to
destroy diversity, so there is no justification for
remand. Dismissal is inappropriate for the fur-
ther reason that there is still minimal diversi-
tySSthe plaintiffs are citizens of Louisiana, and
Transport is a foreign corporation authorized to
do business in Louisiana.17
The remand order of the district court is
REVERSED, and this matter is REMANDED
to the district court for further proceedings.
The mandate shall issue forthwith.
17 The Braud plaintiffs argued before the district
court that the exception to CAFA in 28 U.S.C.
§ 1332(d)(4)(A) applies. Because they do not raise
this argument in their briefs on appeal, it is waived.

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