UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-12
ALBERT ADAMS; ET AL,
Plaintiffs,
V.
GEORGIA GULF CORP; ET AL,
Defendants.
JERRY A. OLDHAM; ALLEN CARLTON; RAIFORD WINSTEAD; JOHN CAPONE, JR.;
DALE A. WALSH; JOSEPH STELLY, also known as Jesse Stelly; CAROL L.
JONES
Plaintiffs - Petitioners
v.
LOUISIANA INTRASTATE GAS CO., LLC; LOUISIANA LIG LIQUIDS COMPANY
INTRASTATE GAS CORPORATION; AMOCO PRODUCTION COMPANY; AMOCO
PIPELINE COMPANY; AMOCO ENERGY TRADING CORPORATION; EQUITABLE
RESOURCES, INC.; ASSOCIATED ELECTRIC & GAS INSURANCE SERVICES, LTD
Defendants - Respondents
Application for Leave to Appeal
from an Interlocutory Order
(98-CV-1066)
May 18, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
This is a motion for leave to appeal from an interlocutory
order denying certification of class status under Federal Rule of
Civil Procedure 23(f). Because this court does not have
jurisdiction over this motion, we VACATE the order of the district
court and REMAND with instructions.
Plaintiffs brought a civil action in the Louisiana Eighteenth
Judicial District Court in 1998. Plaintiffs filed a motion to
certify a class, but the state district court denied the motion.
Plaintiffs timely appealed this judgment to the Louisiana First
Circuit Court of Appeals. Soon thereafter, the case was removed to
federal court under the Convention of the Recognition of Foreign
Arbitral Awards, 9 U.S.C. § 205. After losing a motion to remand
the case to state court, the plaintiffs filed a motion to certify
the class in federal court under Federal Rule of Civil Procedure
23. The district court, after referral to a magistrate, adopted
the state record and denied the class certification for essentially
the same reasons as the state district court. Plaintiffs then
filed a motion for permission to appeal under the recently enacted
Federal Rule of Civil Procedure 23(f).
Federal courts have a duty to address issues of federal
jurisdiction, sua sponte if necessary. See Castaneda v. Falcon,
166 F.3d 799, 801 (5th Cir. 1999). When a state court case is
*
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opinion should not be published and is not precedent except under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.
removed to federal court, all orders and rulings of the state court
remain in effect in federal court until modified by the district
court. See 28 U.S.C. § 1450; Granny Goose Foods, Inc. v.
Brotherhood of Teamsters, 415 U.S. 423 (1974). This circuit has
held that while state court orders and rulings remain in effect
upon removal, they do not become appealable orders of the district
court until the district court adopts them as its own. See Federal
Deposit Insurance Corp. v. Meyerland Co. (In re Meyerland Co.), 960
F.2d 512, 520 (5th Cir. 1992) (en banc); Federal Deposit Insurance
Corp. v. Kahlil Zoom-In Markets, Inc., 978 F.2d 183 (5th Cir. 1992).
For example, if a timely notice of appeal has been filed in state
court, the notice of appeal is valid as if it were filed in federal
court and complied with the Federal Rules of Civil Procedure;
before the case may be taken by the court of appeals, however, the
district court must “take the state judgment as it finds it,
prepare the record as required for appeal, and forward the case to
a federal appellate court for review.” In re Meyerland, 960 F.2d
at 520; cf. Pollock v. Federal Deposit Insurance Co., 17 F.3d 798,
801 (5th Cir. 1994). Thus, the district court may not transfer such
a case to the court of appeals for lack of jurisdiction pursuant to
28 U.S.C. § 1631 prior to entering the state court order as its
own, even though a valid notice of appeal had been filed, as there
would be no final appealable judgment for the court of appeals to
review. See Kahlil, 978 F.2d at 184.
In the present case, the district court did not expressly
adopt the state court judgment as its own, nor did it make its own
individual findings on the propriety of Rule 23 certification.
Rather, the district court adopted the ruling of a magistrate judge
employing the reasoning, but not adopting the ruling, of the state
court. Accordingly, by neither: (1) entering an order expressly
adopting the ruling of the state court, or (2) making its own
finding that a class action under Fed.R.Civ.P. 23 could not
proceed, the district court failed to create an appealable order
which this court has jurisdiction to review.
The appropriate remedy in such a case is to vacate the order
of the district court and remand the case so the district court may
formally adopt the ruling of the state court denying class
certification, causing an interlocutory order to be entered by the
district court that may be appealable under Rule 23(f). See
Kahlil, 978 F.2d at 184 (citing 5300 Memorial Investors, Ltd. v.
Resolution Trust Corp. (In re 5300 Memorial Investors, Ltd.), 973
F.2d 1160, 1163 (5th Cir. 1992) (holding the district court
correctly ruled that “[t]he July 26, 1990, order of the Court of
Appeals will be adopted as an order of this court so that the
parties may have the opportunity to pursue their appeals in the
federal courts.”)). Upon the entry of such order, the Plaintiffs
may either attempt to pursue the appeal by demonstrating that under
Meyerland the state court notice of appeal was sufficient to grant
appellate jurisdiction to this court or, in the alternative, by
filing a proper Rule 23(f) motion for permission to appeal.2
Because the district court failed to enter the state court’s
denial of class certification as its own, no order of the district
court under Rule 23 exists and thus this court does not have
jurisdiction to entertain a motion for permission to appeal such an
order under Rule 23(f). Accordingly, the district court’s order
entered on March 1, 2000 is VACATED and this matter is REMANDED to
the federal district court for the entry of the state court’s order
denying class certification as a Rule 23 order.
2
If the state court notice of appeal is not sufficient,
Plaintiffs may also file a motion for reconsideration of the denial
of class certification before the district court. The Rule 23(f)
ten-day limitations period would be tolled during the pendency of
any such properly filed motion for reconsideration. See
FED.R.CIV.P. 4(a)(4); Blair v. Equifax Check Services, Inc., 1818
F.3d 832, 837 (7th Cir. 1999).