Case: 09-40918 Document: 00511145197 Page: 1 Date Filed: 06/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2010
No. 09-40918 Lyle W. Cayce
Clerk
JOHN C. CLOWER, Individually and on behalf of all other persons similarly
situated; KAY HENDRICKSON CLEVENGER, Individually and on behalf of
all other persons similarly situated; NANCY HENDRICKSON STALEY,
Individually and on behalf of all other persons similarly situated; BILL
HENDRICKSON, JR., Individually and on behalf of all other persons
similarly situated,
Plaintiffs - Appellees
v.
WELLS FARGO BANK, N.A., a National Banking Association,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 2:07-CV-510
Before GARWOOD, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-40918 Document: 00511145197 Page: 2 Date Filed: 06/17/2010
No. 09-40918
Plaintiffs-Appellees (Plaintiffs), trust beneficiaries, initially filed suit
against Defendant-Appellant Wells Fargo Bank, N.A. (Wells Fargo) on grounds
that Wells Fargo has not been, and its predecessors were not, the proper trustees
of over two hundred trusts for the past twenty-five years. Plaintiffs then filed
motions to certify a class. Wells Fargo filed a Rule 12(b)(6) motion to dismiss the
complaint.
After a hearing, the district court granted class certification and later
denied Wells Fargo’s subsequent motion for reconsideration. We granted
Wells Fargo’s petition for permission to appeal under Rule 23(f). Wells Fargo
then filed a motion with the district court to stay its proceedings pending the
appeal of the class certification order, which was granted. After granting the
stay, however, the district court granted Wells Fargo’s motion to dismiss and
granted Plaintiffs leave to amend their complaint.
Generally, the district court cannot “alter the status of the case as it rests
before the Court of Appeals.” Dayton Indep. Sch. Dist. v. U.S. Mineral Prods.
Co., 906 F.2d 1059, 1063 (5th Cir. 1990). “The filing of a notice of appeal is an
event of jurisdictional significance—it confers jurisdiction on the court of appeals
and divests the district court of its control over those aspects of the case involved
in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58
(1982) (per curiam). However, “the district court may still proceed with matters
not involved in the appeal.” Alice L. ex rel. R.L. v. Dusek, 492 F.3d 563, 564–65
(5th Cir. 2007) (per curiam). We do not doubt that the district court had
authority to “proceed with matters not involved in the appeal” and therefore to
dismiss the complaint after we granted permission to appeal. See Alaska Elec.
Pension Fund v. Flowserve Corp., 572 F.3d 221, 233 (5th Cir. 2009) (holding that
the district court had jurisdiction to grant summary judgment to defendants
after the Rule 23(f) class certification appeal was filed).
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Case: 09-40918 Document: 00511145197 Page: 3 Date Filed: 06/17/2010
No. 09-40918
Because the complaint was dismissed, however, we are asked to resolve
the merits of a class certification order untethered to any live claims. We cannot
do so. Article III of the U.S. Constitution empowers the federal courts to hear
only live cases and controversies. U.S. C ONST. art. III § 2. If an appellate court
is unable to grant any remedy for an appellant, its opinion would be merely
advisory and it must dismiss the appeal as moot. In re Blast Energy Servs., Inc.,
593 F.3d 418, 423 (5th Cir. 2010). Without a live complaint, it is impossible for
this court—or the district court—to consider whether Plaintiffs have met the
requirements for a Rule 23 class action. See Bell Atl. Corp. v. AT&T Corp., 339
F.3d 294, 302 (5th Cir. 2003) (“Determining whether the plaintiffs can clear the
predominance hurdle set by Rule 23(b)(3) also requires us to consider how a trial
on the merits would be conducted if a class were certified.”) (citation omitted).
Accordingly, we dismiss this appeal as moot, vacate the class certification
order, and remand the case to the district court for further proceedings. We
express no opinion on the merits of the parties’ arguments for or against class
certification, or on the district court’s rulings regarding class certification.
APPEAL DISMISSED AS MOOT; CLASS CERTIFICATION ORDER
VACATED without regard to the merits and REMANDED.
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