Admiral Insurance v. Abshire

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 2, 2009

No. 09-30121 Charles R. Fulbruge III
Clerk

ADMIRAL INSURANCE CO.,

Plaintiff - Appellant Cross-Appellee
v.

DONALD W. ABSHIRE; BETTY JOAN NIX BUZZANCA; JESSE CHARLES
ADAMS; GESELE DIAMOND ADAMS; DARROW A. ADAMS, ET AL.,

Plaintiffs - Appellees Cross-Appellants
v.

STATE OF LOUISIANA, THROUGH THE OFFICE OF FINANCIAL
INSTITUTIONS; STATE OF LOUISIANA, THROUGH THE OFFICE OF
RISK MANAGEMENT,

Defendants - Appellants Cross-Appellees

Appeal from the United States District Court
for the Middle District of Louisiana

Before WIENER, STEWART, and CLEMENT, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Admiral Insurance Company (“Admiral”) and
Defendant-Appellant State of Louisiana, through the Office of Financial
Institutions and through the Office of Risk Management (collectively,
“Louisiana”) appeal from the order of the district court remanding this case to
state court. Louisiana claims that the Plaintiffs-Appellees (collectively, “Abshire
 No. 09-30121

et al.”) commenced this putative class action – in which the proposed class
includes at least 100 plaintiffs, the parties are minimally diverse, and the
amount in controversy exceeds $5,000,000 exclusive of interest and costs – after
the effective date of the Class Action Fairness Act of 2005 (“CAFA”),1 entitling
Louisiana to removal. Abshire et al. disagree, contending that they commenced
this suit long before CAFA’s effective date. They also cross-appeal the district
court’s denial of fees and costs associated with seeking remand. We affirm the
district court’s remand of the case to state court and its denial of fees and costs
to Abshire et al.
I. FACTS AND PROCEEDINGS
Abshire and the other plaintiffs purchased life insurance policies,
annuities, and corporate notes from three Louisiana companies: Public
Investors Life Insurance Co. (“PILCO”), Public Investors, Inc. (“PI”), and
Midwest Life Insurance Co. (“MLI”). After all three companies failed, Abshire
et al. sued Louisiana, alleging negligent, intentional, and criminal acts
(regulatory and otherwise) that they claim contributed to these failures. A total
of 1,383 plaintiffs were named as parties in three petitions 2 filed during the early
1990s in two different Louisiana courts. These actions were ultimately
consolidated in Louisiana’s 19th Judicial District Court for the Parish of East
Baton Rouge (the “19th JDC”).
After prolonged discovery and writ applications, and an earlier effort by
Louisiana to remove to federal court, Abshire et al. filed an eighth amended
complaint on March 24, 2003, which added claims against Louisiana’s excess
insurance carriers — like Admiral — and repleaded several claims. Then, as the
most recent trial date approached in 2007, an advisory opinion from the Ethics

1
Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).
2
Louisiana law refers to a complaint as a petition; they serve the same purpose. See
LA . CODE CIV . PROC . ANN . art. 854 (2008).

2
 No. 09-30121

Advisory Service Committee of the Louisiana State Bar Association determined
that Abshire et al.’s attorneys would violate the Rules of Professional Conduct
if they tried or settled the claims of plaintiffs with whom they had lost contact,
using only the powers of attorney that these plaintiffs had executed at the time
of retainer. Abshire et al.’s attorneys therefore filed motions to withdraw as to
the 243 plaintiffs with whom they had lost contact.
These ethics and communication issues were hampering efforts to settle,
so the 19th JDC, which believed that the parties could benefit from mediation,
granted Abshire et al. leave to amend their complaint a ninth time to seek class
certification. That court concluded, and Abshire et al.’s attorneys apparently
agreed, that only class certification could give the attorneys the authority needed
to participate in mediation and to settle the case if possible.3
Abshire et al. filed the ninth amended complaint on May 30, 2008. It
defined the proposed class as:
All persons or entities in the United States who filed suit
against the State of Louisiana and/or its Department of Insurance
or Office of Financial Institutions for damages caused by the State’s
conduct in connection with the failure of [the three companies], and
whose claim was consolidated into Civil Action No. 377,713 or No.
412,265.
....
. . . Excluded from the Class are any persons or entities to the
extent their claims in Civil Action No. 377,713 or No. 412,265 have
been resolved by a final, unappealable judgment, including those
claims dismissed as a result of the rulings of the United States
District Court, Western District of Louisiana, No. 06-1368.

In the ninth amended complaint, Abshire et al. also sought to recoup their
“costs of suit, including reasonable attorneys’ fees as provided by law.” The

3
For discussions of the problems with resolving dispersed or complex, multiparty
litigation, the utility of the class action device, and CAFA, see Edward F. Sherman, The MDL
Model for Resolving Complex Litigation If a Class Action Is Not Possible, 82 TUL . L. REV . 2205,
2206-09 (2008).

3
 No. 09-30121

eighth amended complaint had requested “[j]udgment against the Defendants
jointly, severally, and in solido for attorneys’ fees, judicial interest, costs, and all
expenses of these proceedings and for any and all other general equitable relief.”
Other case management problems inherent in such lengthy litigation arose
during the 17 years that this suit has been pending in state court. For example,
a number of plaintiffs have died. The 19th JDC allowed ex parte substitutions
of survivors until Louisiana objected. That court then entered an order in 2004
conditionally dismissing the claims of the deceased plaintiffs unless counsel for
Abshire et al. made proper substitution requests. Although the record is unclear
on the point, it appears that at least five of the deceased plaintiffs had no
survivor who could be substituted in 2004, so their claims presumably were
dismissed. Louisiana claims that the same held true for at least 16 deceased
plaintiffs at that time.
In addition to hearing the motions practice regarding substitutions for
deceased plaintiffs, the 19th JDC dismissed the claims of all 281 plaintiffs who
were only insureds or beneficiaries of a PILCO, PI, or MLI life insurance policy
or annuity. These dismissals, as Louisiana concedes, are final and
unappealable. The same order also held that “[a]ll rights possessed by any
plaintiff in this litigation are preserved, and shall not in any way be affected by
this order, save for those rights a plaintiff may possess as an insured or
beneficiary under a life insurance policy or annuity.” Louisiana contends that
this portion of the order related to 219 “dual-capacity plaintiffs,” each of whom
was both (1) an insured or a beneficiary and (2) owned an investment at issue,
the claims relating to which were not dismissed. Louisiana argues that the
order is not final and unappealable as to those 219 dual-capacity plaintiffs
because (1) those plaintiffs were not fully dismissed and (2) the order was not
certified as a final judgment pursuant to Article 1915(B)(1) of the Louisiana
Code of Civil Procedure for purposes of an appeal. These two additional

4
 No. 09-30121

management issues — the substitution problems arising out of the deaths of
some of the plaintiffs and the management of the “dual-capacity” plaintiffs’
claims — are part of Louisiana’s argument that, by seeking class certification for
the first time, the ninth amended complaint commenced a new suit for purposes
of CAFA.
Immediately after Abshire et al. filed the ninth amended complaint,
Louisiana again removed the action to federal court, this time claiming that,
under CAFA, subject-matter jurisdiction exists over Abshire et al.’s putative
class action. Abshire et al. do not contest that if CAFA applies, the case satisfies
CAFA’s minimum-diversity and amount-in-controversy requirements. Instead,
Abshire et al. sought remand on grounds that (1) this action was not
“commenced” after CAFA’s effective date (February 18, 2005), so CAFA is
inapplicable, and (2) if CAFA applies, at least one mandatory exception to
federal jurisdiction under CAFA requires remand. The magistrate judge
concluded that the instant action commenced prior to CAFA’s effective date and
recommended that the case be remanded to state court. Because of that
conclusion, the magistrate judge’s report and recommendations did not address
the two CAFA exceptions to jurisdiction that are presented in this appeal,
namely, the “local controversy” and “primary state actor” exceptions.
Abshire et al. also requested that, pursuant to 28 U.S.C. § 1447(c),
attorneys’ fees and costs associated with seeking remand be awarded, arguing
that Louisiana’s attempt to remove the case was “objectively unreasonable.” The
magistrate judge determined that even though Abshire et al. prevailed on their
motion to remand, Louisiana had not acted unreasonably because case law in the
area was unsettled at the time of removal. The district court adopted the
magistrate judge’s report and recommendations in full and remanded the case
to state court.

5
 No. 09-30121

Both Louisiana’s notice of appeal of the district court’s remand order and
Abshire et al.’s notice of appeal of the denial of attorneys’ fees and costs were
timely filed pursuant to 28 U.S.C. § 1453(c)(1).4 We granted permission to
appeal and cross-appeal. As permitted by § 1453(c)(3)(A), all the parties agreed
to a 120-day extension of 28 U.S.C. § 1453(c)(2)’s sixty-day time limit to
“complete all action on [the] appeal.”
II. ANALYSIS
A. The Remand Order
1. Standard of Review
We review de novo a district court’s order remanding a case to state court.5
2. Merits
CAFA applies to “‘any civil action commenced on or after’” February 18,
2005. 6 It does not apply retroactively. 7 We must therefore determine whether

4
The requirement that the petition be filed “not less than 7 days after entry of the
order” granting or denying remand has been interpreted, counter-textually, to read “not more
than 7 days.” E.g., Estate of Pew v. Cardarelli, 527 F.3d 25, 27-28 (2d Cir. 2008) (collecting
Third, Ninth, Tenth, and Eleventh Circuit cases). Contra Spivey v. Vertrue, Inc., 528 F.3d 982,
984 (7th Cir. 2008) (Easterbrook, J.) (“Turning ‘less’ into ‘more’ would be a feat more closely
associated with the mutating commandments on the barn’s wall in Animal Farm than with
sincere interpretation.”). Even if we were tempted to rewrite a statute to mean exactly the
opposite of its text, we resist that temptation, choosing instead to join the Seventh Circuit by
concluding that this appeal was timely filed, even though the petition was filed fewer than
seven days after the remand order. See Spivey, 528 F.3d at 984 (“To the extent that our
colleagues in other circuits hold that a petition filed within seven days of the district court’s
order should be accepted, rather than thrown out with instructions to submit another once a
week has passed, we concur. . . . An affirmative answer tracks FED . R. APP . P. 4(a)(2), which
says that a premature notice of appeal remains on file and springs into effect when the
decision becomes appealable.”). We leave open the timeliness of a petition filed after seven
days and note that Congress might wish to correct this apparent error in drafting.
5
Preston v. Tenet Healthsys. Mem’l Med. Ctr., Inc., 485 F.3d 793, 796 (5th Cir. 2007).
Ordinarily, we review a remand order for abuse of discretion, but that is a product of 28 U.S.C.
§ 1447(d)’s bar to review of most non-discretionary remand orders. See Certain Underwriters
at Lloyd’s, London v. Warrantech Corp., 461 F.3d 568, 572 (5th Cir. 2006).
6
Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801, 803 (5th Cir. 2006).
7
Id.

6
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the filing of Abshire et al.’s ninth amended complaint “commenced” a new suit
for purposes of CAFA.8 If not, CAFA does not apply and removal under its
provisions was improper.
We have held, as have all other circuits that have addressed the issue, that
the date on which a civil action is “commenced” for purposes of CAFA is
determined by state law.9 We have further held that Louisiana considers a suit
“commenced by filing of a pleading presenting the demand to a court of
competent jurisdiction.” 10 Thus, our default rule under Louisiana law is that,
absent special circumstances, a suit is commenced only at the time the original
petition is filed in a court of competent jurisdiction (“the default rule”).
Therefore, Abshire et al. “commenced” this suit long before CAFA’s effective date
— on or about December 11, 1991, when at least one of the petitions for damages
was filed in a Louisiana court competent to hear it.11
We have recognized, however, that at least one exception applies to the
default rule, viz., when there are special circumstances, a suit may be
“commenced” more than once. In Braud v. Transport Service Co. of Illinois, we
held that, for purposes of CAFA, the addition of a new defendant to a case
commences a new civil action as to that defendant.12 Louisiana now asks us to
extend our holding in Braud by recognizing an additional exception to the
default rule: specifically, that Abshire et al. commenced a new civil action when

8
For an excellent discussion of CAFA’s commencement provision, see James M.
Garner, Congressional Welcome to Federal Court — The Class Action Fairness Act: Has the
Party Just Begun?, 80 TUL . L. REV . 1669, 1670-87 (2006).
9
Braud, 445 F.3d at 803.
10
Id. at 804 (citing LA . CODE CIV . PROC . art. 421 (2008)).
11
The precise dates on which the two other petitions were filed does not appear in the
record. No party disputes that the petitions were filed long before CAFA’s effective date,
which is all that is relevant.
12
445 F.3d at 804.

7
 No. 09-30121

they filed the ninth amended complaint. Louisiana reasons that the latest
complaint seeks class treatment for the first time and exposes Louisiana to
additional liability via (1) a claim for attorneys’ fees and costs, (2) the
“resurrection” of claims held by deceased, substitution-less plaintiffs, and (3) the
“resurrection” of the dual-capacity plaintiffs’ previously dismissed claims.
Noting that no new parties or claims have been added, Abshire et al. counter
that merely adding class allegations is insufficient to constitute the
commencement of a new suit. We address each contention in turn, cognizant
that all appear to present questions of first impression in this circuit.
We may quickly dispose of Louisiana’s contention that the mere addition
of class allegations commences a new civil action for purposes of CAFA.
Louisiana asserts that the term “civil action” in § 9 of CAFA must be read to
mean “class action,” meaning that any effort to seek class certification not sought
before CAFA’s effective date permits removal. This reading is in tension with
the plain language of the statute; “civil action” is not synonymous with “class
action.” Conceptually, a “civil action” is a more extensive, more inclusive
proceeding than a “class action,” which is a subset of all civil actions.13 A “civil
action” may commence before it becomes a “class action,” and Congress selected
the commencement of the “civil action” as the relevant event under CAFA’s
effective-date provision.
Louisiana’s reading is also in tension with the Tenth Circuit’s decision in
Pritchett v. Office Depot, Inc., which held that “Congress signaled an intent to
narrow the removal provisions of [CAFA] to exclude currently pending suits” by

13
This is evidenced by CAFA’s definition of “class action.” In 28 U.S.C. § 1332(d)(1)(B),
“class action” is defined as “any civil action filed under rule 23 of the Federal Rules of Civil
Procedure or similar State statute or rule of judicial procedure authorizing an action to be
brought by 1 or more representative persons as a class action.” Louisiana’s proffered reading
would treat CAFA’s definition of “class action” as the definition of “civil action” as well, which
is clearly incorrect.

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deleting language that would have extended CAFA to “cases in which a class
certification order is entered on or after the enactment date.” 14 If “civil action”
were treated as congruent with “class action” for purposes of § 9, then a class-
certification order would commence a new suit. Pritchett, however, does not
completely resolve the matter because, even though the certification order there
post-dated CAFA, class allegations had been included in the complaint, which
was filed pre-CAFA. We find this of no moment, however, because, as we have
said, the date on which a civil action commences is determined according to state
law, and Louisiana has not invited our attention to any authority holding that
controlling state law deems a civil action to have been re-commenced when a
complaint is amended to seek class treatment.
To convince us that the default rule under the forum state’s law – here,
that a suit is commenced only at the time the original petition is filed in a court
of competent jurisdiction – should not be applied in this context, Louisiana
would have to make the same kind of persuasive showing that the newly added
defendant made in Braud. There, we explained that it would be “a novel and
unjust principle to make the defendants responsible for a proceeding of which
they had no notice.” 15 Louisiana cannot make a similarly persuasive showing
here because the notice and due-process concerns that motivated our Braud
holding are wholly absent from this suit. Abshire et al.’s ninth amended
complaint adds not a single plaintiff of whose claim Louisiana was not already
aware (the claim for attorneys’ fees is the only arguable exception, which we
address below). The proposed class definition is carefully tailored to limit the
class to persons who were individual parties to the suits filed in the early 1990s.
Even though some of those parties have died, requiring substitution of

14
420 F.3d 1090, 1094-95 (10th Cir. 2005).
15
445 F.3d at 805 (internal quotation marks omitted)).

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successors to preserve their claims in the absence of class treatment, Louisiana
cannot argue that it lacked notice that the now-deceased plaintiffs for whom
there are no successors to substitute were, at some point, claimants.
Neither is this a case like Plummer v. Farmers Group, Inc., which
presented a close call.16 In Plummer, the initial complaint “involved one claim,
one theory of recovery, and one Oklahoma plaintiff.” 17 The Plummer plaintiffs
amended their pleadings after CAFA’s effective date, turning the suit into “a
three count case with several theories of recovery asserted by thousands of
potential plaintiffs spanning the United States.” 18 The Plummer court thought
that such an amendment presented a “unique circumstance in which some action
other than filing a complaint in court is deemed to commence a lawsuit.” 19 That
is a doubtful proposition as to the mere addition of class allegations standing
alone, especially when, as here, the class comprises only individuals or
successors of individuals who were parties to the suits filed in the early 1990s.20
So, even if we were to adopt the Plummer court’s analysis, Abshire et al.’s
ninth amended complaint is not a “drastic modification to a petition by way of
amendment which initiates a class action” that would present a “unique
circumstance in which some action other than filing a complaint in court is

16
388 F. Supp. 2d 1310, 1313-14 (E.D. Okla. 2005). Neither is this case analogous to
Senterfitt v. SunTrust Mortgage, Inc., 385 F. Supp. 2d 1377, 1378-79 (S.D. Ga. 2005), which
involved an amendment adding an additional 16 years to the class period and “significantly
increas[ing] the size of the potential class.”
17
388 F. Supp. 2d at 1313.
18
Id.
19
Id. at 1314 (internal quotation marks omitted).
20
The Seventh Circuit has rejected the notion that the addition of class members to a
suit involves the addition of new plaintiffs, implicitly repudiating the Plummer court’s
approach. Schillinger v. Union Pac. R.R. Co., 425 F.3d 330, 334 (7th Cir. 2005); Schorsch v.
Hewlett-Packard Co., 417 F.3d 748, 750, 752 (7th Cir. 2005).

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deemed to commence a lawsuit.” 21 Even if there were some question whether,
to use Louisiana’s colorful analogy, the claims of the now-deceased, substitution-
less plaintiffs that it contends would be “resurrected” by class treatment are
“new” claims or plaintiffs, we are nevertheless certain that any resurrection
worked here does not work a “drastic modification” in the case by “significantly
increas[ing] the size of the potential class.” 22 Satisfied that merely melding the
plaintiffs previously joined to a suit into a class for case management purposes
is not itself sufficient to commence a new suit under CAFA, we move on to
Louisiana’s second argument, viz., that a new civil action is commenced under
CAFA when parties or claims are added in an amended complaint.
In Braud, we limited our holding – that changes made to a complaint after
filing may commence a new suit for purposes of CAFA – to a change that added
new defendants, noting that “[w]e do not decide when or whether the addition
of new claims to a pre-CAFA case provides a new removal window.” 23 Other
circuits have addressed the issue, however. In Knudsen I, the Seventh Circuit
wrote in dicta that adding “a novel claim for relief or add[ing] a new party”
commences a new suit for purposes of CAFA.24 Knudsen I also suggested a
method by which courts should determine whether an amendment to a
complaint asserts a “novel claim for relief,” cautioning: “We imagine, though we
need not hold, that . . . when a claim relates back to the original complaint (and
hence is treated as part of the original suit),” it does not commence a new suit,
but when a claim is “sufficiently independent of the original contentions[,] . . .

21
388 F. Supp. 2d at 1313-14 (internal quotation marks omitted).
22
Id.; Senterfitt, 385 F. Supp. 2d at 1379.
23
445 F.3d 801, 808 n.16 (5th Cir. 2006).
24
Knudsen v. Liberty Mut. Ins. Co. (Knudsen I), 411 F.3d 805, 807 (7th Cir. 2005)
(Easterbrook, J.).

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 No. 09-30121

it must be treated as fresh litigation.” 25 Knudsen I made explicit that its
relation-back analysis was modeled on the federal relation-back rule found in
Federal Rule of Civil Procedure15(c).26 In Knudsen II, after reviewing the
defendants’ second attempt to remove the action when the plaintiffs made new
claims for which the original pleadings did not provide notice, the court adopted
this approach, but looked to state (Illinois) as well as federal relation-back law.27
The Tenth Circuit has also addressed the contention advanced here by
Louisiana that a new civil action is commenced under CAFA when parties or
claims are added in an amended complaint. In Prime Care of Northeast Kansas,
LLC v. Humana Insurance Co., that court adopted a modified version of the
relation-back approach that the Seventh Circuit had endorsed in Knusden I, one
that we discussed but did not adopt in Braud.28 Prime Care held that the
relation-back analysis applies to new claims and (contrary to Braud) that the
addition of a defendant after CAFA’s effective date did not necessarily commence
a new civil action if state law would view the addition of the new defendant as
relating back to the filing of the original complaint.29 The Eighth Circuit
approached the problem of a new named party similarly in Plubell v. Merck &
Co., a case in which the plaintiff amended the complaint to substitute the class
representative after CAFA’s effective date.30 These cases present two options for

25
Id.
26
Id.
27
Knudsen v. Liberty Mut. Ins. Co. (Knudsen II), 435 F.3d 755, 757 (7th Cir. 2006)
(Easterbrook, J.).
28
447 F.3d 1284, 1286, 1288 (10th Cir. 2006).
29
Id. at 1288-89. (“[W]hether a post-CAFA amendment triggers a substantive right
of removal under CAFA by the affected parties depends on whether the amendment relates
back to the pre-CAFA pleading that is being amended.”).
30
434 F.3d 1070, 1071-73 (8th Cir. 2006).

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purposes of CAFA: (1) Only the addition of a new defendant re-commences a
suit; or (2) the addition of a new plaintiff or a new claim re-commences a civil
action under CAFA, but only if the amended pleadings do not “relate back” to the
original, pre-CAFA complaint. We need not consider choosing between these
options on the facts of this case, however, as Abshire et al.’s ninth amended
complaint relates back to the original complaint or, at the least, to one or more
pre-CAFA complaints, such as the eighth amended version.
We begin our analysis by noting that the relation-back approach to
commencement that other circuits employ, to the extent that it is ever
analytically relevant, is particularly unilluminating in this case. 31 CAFA’s
commencement provision is a non-retroactivity provision, presumably motivated
by the typical concerns that caution against retroactively applying a rule or
statute, viz., the unjust disturbance of settled legal expectations on which a
party has relied.32 “Relation back is intimately connected with the policy of the
statute of limitations.” 33 The policies underlying statutes of limitations —
evidentiary concerns and repose — require that a plaintiff (1) commence suit
(preserving the evidence) and (2) furnish the defendant notice of the suit and its

31
See Garner, supra note 8, at 1683-86 (“Knudsen I speculated that a Rule 15 analysis
could form the basis for evaluating an amendment that commenced a new action for CAFA
applicability purposes. A Rule 15 analysis is primarily concerned, however, with providing a
balance between allowing a plaintiff the ability to interrupt statutes of limitations and
equitable considerations of protecting a defendant from stale claims. In contrast to the
purposes underlying relation-back analysis, jurisdictional analyses have principally been
concerned with constitutional issues and ease of application. It therefore appears that a
jurisdictional rule dependent upon Rule 15 fairness considerations is not conceptually
consistent with traditional jurisdictional analysis and can create inconsistent results.”
(footnotes omitted)).
32
See Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971) (explaining that a rule may
be denied retroactive application if its application would work an injustice), overruled by
Harper v. Va. Dep’t of Taxation, 509 U.S. 86 (1993) (limiting Chevron Oil’s approach for
judicial decisions, but not repudiating the general policy behind non-retroactivity as explained
in Chevron Oil).
33
FED R. CIV . P. 15 advisory committee’s notes.

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claims (preventing repose from vesting).34 When Rule 15(c) is satisfied, neither
of these policies is impinged because the plaintiff commenced suit before the
limitations period lapsed and the defendant knew or should have known of the
suit and the claims, allowing him to preserve his evidence. In such a
circumstance, at least according to the drafters of the Rules, it would work an
injustice to time-bar a plaintiff’s claim against a particular defendant not earlier
named or a specific claim not earlier pleaded. Yet, an amendment to assert a
new claim that “arose out of the conduct, transaction, or occurrence set out — or
attempted to be set out — in the original pleading,”35 which thus satisfies Rule
15(c), might disturb settled legal expectations if such claim is based on a statute
enacted after the defendant’s conduct. And, an amendment to assert a claim
that does not arise out of the transaction or occurrence described in the original
complaint will not disturb settled legal expectations if brought within the
statute-of-limitations period. Relation-back and non-retroactivity might overlap,
but, given their logical independence, it is far from pellucid why the relation-
back test should control our analysis of CAFA’s non-retroactivity provision.
In fact, the concerns balanced by the relation-back doctrine are virtually
non-existent in this case. Louisiana was sued long ago on all of the claims,
except, possibly, on the below-addressed claims for attorneys’ fees and costs, by
all of the members of the putative class. Even if we were to grant that some of
those claims ran aground over the past 17 years and that a class action might
revive them,36 Louisiana lost any expectation of repose for claims brought by the

34
See Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 427 (1965).
35
FED . R. CIV . P. 15(c)(1)(B).
36
It is unclear how deceased, substitution-less plaintiffs are in a position to recover
anything, even from a class action. It is also unclear how the previously dismissed claims of
the dual-capacity plaintiffs can be revived by the trial court in light of its earlier rulings on
those claims. Of course, if the district court’s holdings on substitution or the beneficiary-only
claims are reversed on appeal, then Louisiana could be exposed to “additional” liability for

14
 No. 09-30121

named plaintiffs in this litigation concerning Louisiana’s acts or omissions in the
underlying matters when Abshire et al. filed this action in the early 1990s. And,
at this point, any evidentiary concerns result from the length of the litigation,
not from Abshire et al. sleeping on their rights. Neither are there notice
concerns arising from the strategic choices made by Louisiana prior to the filing
of the ninth amended complaint. Irrespective of whether it knew that this suit
exposed it to class liability, Louisiana could not have removed this case prior to
CAFA, so notice could not have affected its tactical decisions, at least not its
choice of forum: It had none. Simply put, this is not a situation in which
Louisiana could say, “Well, if I had known it was going to be a class action at the
time it was filed, I’d have removed.”
Even if we assume, arguendo, that it is appropriate to engage in the
relation-back test found in either Louisiana law or the Federal Rules, we would
conclude that the “resurrected” plaintiffs and claims clearly satisfy both. In
Giroir v. South Louisiana Medical Center, the Louisiana Supreme Court held
that the addition of plaintiffs relates back to the filing of the original petition if
(1) the amended claim arises out of the same conduct, transaction,
or occurrence set forth in the original pleading; (2) the defendant
either knew or should have known of the existence and involvement
of the new plaintiff; (3) the new and the old plaintiffs are sufficiently
related so that the added or substituted party is not wholly new or
unrelated; (4) the defendant will not be prejudiced in preparing and
conducting his defense.37
The only “newly added” plaintiffs, i.e., those whom one could arguably suggest
were not already parties to the litigation at some point prior to the ninth
amended complaint, are the survivors of the earlier deceased plaintiffs who were
not properly substituted before class certification was sought. If any such

those claims, but Louisiana faces that risk with or without class certification.
37
475 So. 2d 1040, 1044 (La. 1985).

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persons are in fact included in the class definition — and that is hardly clear,
as the class definition is limited to those persons who were already parties to the
three state-court petitions — they satisfy Giroir. As for federal law, the Seventh
Circuit has held that class members are not new plaintiffs even when they were
not previously joined to the action as individuals, a rule that we find persuasive
and completely dispositive of Louisiana’s argument here.38 This reasoning also
applies to the claims of the dual-capacity plaintiffs.
As for Louisiana’s protestations that Abshire et al.’s request for attorneys’
fees commences a new “civil action” against it, we need not address the dispute
between the parties concerning the meaning of our holding in Grant v. Chevron
Phillips Chemical Co.39 Regardless whether Louisiana itself or a common fund
might be on the hook for Abshire et al.’s fees at some future point, and
regardless whether Louisiana could have been liable for attorneys’ fees under
state law before Abshire et al. sought class certification, Louisiana has invited
our attention to no authority that holds a request for attorneys’ fees does not
relate back to an original filing. To the contrary, our research reveals just the
opposite, given that attorneys’ fees obviously arise out of the same transaction
or occurrence that led to the filing of the original complaint, which is the test for
relating back under both federal and Louisiana law.40
Thus, whether we apply the Louisiana or the federal relation-back
analysis to Abshire et al.’s ninth amended complaint, we are convinced that
they obviously have not commenced a new “civil action.” Likewise, when we

38
Schorsch v. Hewlett-Packard Co., 417 F.3d 748, 750, 752 (7th Cir. 2005).
39
309 F.3d 864, 874-75 (5th Cir. 2002).
40
See FED . R. CIV . P. 15(c)(1)(B); LA . CODE CIV . PROC . ANN . art. 1153 (2008) (announcing
a “transaction[] or occurrence” test substantially similar to the federal standard); cf. Ford v.
Murphy Oil, U.S.A., Inc., 710 So. 2d 235, 235 (La. 1997) (per curiam) (Calogero, C.J.,
concurring) (noting that an amendment to a petition to assert an individual claim after a class
has been decertified relates back to the original petition).

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apply our current default rule under Louisiana law, we are convinced that the
ninth amended complaint does not commence a new civil action, because the
petition was filed pre-CAFA in a court of competent jurisdiction and the Braud
exception does not apply. As we reach the same result under either analysis, we
decline to create another exception to the default rule under Louisiana state law.
We therefore apply Louisiana law, which provides that a civil action commences
only on the filing of the initial pleading in a competent court, and we hold that
Abshire et al. commenced this civil action only once, and then long before
CAFA’s effective date. Remand to state court is appropriate because Abshire et
al. commenced their suit before CAFA’s effective date, and no other basis of
jurisdiction appears from Louisiana’s notice of removal. This conclusion obviates
the need to address CAFA’s mandatory exceptions to jurisdiction urged by
Abshire et al.
We end our discussion of this issue by correcting the parties’ error
regarding Braud, which error is responsible for much of the confusion in this
case. We made two separate holdings in Braud. First, we held that the addition
of a defendant commences a new suit as to that defendant for purposes of CAFA.
Second, we held that when a new suit is commenced by the addition of a new
defendant, a new window of removability opens under 28 U.S.C. § 1446(b). Here,
the parties erred by focusing their analyses on Braud’s second holding, sparring
over whether the ninth amended complaint “provides (1) a new basis for removal
or (2) changes the character of the litigation so as to make it substantially a new
suit.” 41 That, however, is the test for a new removal window under § 1446(b); in
Braud we spoke of § 1446(b) as governing removability only after we had first
determined that the addition of a new defendant commenced a new civil action
as to that defendant. Given that precursor, we logically concluded that

41
445 F.3d 801, 806 (5th Cir. 2006) (internal quotation marks omitted).

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commencement of a new suit for purposes of CAFA was necessarily a substantial
change in the character of the litigation, meaning that a new window of
removability was opened under § 1446(b).42 Indisputably then, whether an
amendment to a complaint satisfies § 1446(b)’s test for removability is not
determinative of whether a new suit has been commenced for purposes of CAFA.
To read Braud otherwise would result in what the Tenth Circuit has described
as “absurd consequences.” 43 The parties’ reading of Braud achieves these
“absurd consequences” by improperly conflating the question under CAFA (Has
a new suit been commenced so that CAFA applies?) and the question under §
1446(b) (If jurisdiction exists, may the case be removed?). Even though §
1446(b)’s one-year time bar to the removal of suits based on diversity does not
apply under CAFA,44 there are still suits for which jurisdiction exists but for
which removal is improper. Section 1446(b) and § 9 of CAFA ask different
questions because they protect different policies: Section 1446 protects a
plaintiff’s choice of forum from a defendant’s untimely effort to remove unless
the defendant could not have removed the case before or did not have the same
incentives to remove it; Section 9 of CAFA protects a plaintiff’s choice of forum
from Congress’s post hoc expansion of the federal courts’ subject matter

42
Id. at 805-06.
43
See Prime Care of Ne. Kan., LLC v. Humana Ins. Co., 447 F.3d 1284, 1289 (10th Cir.
2006) (“Moreover, the confusion of a removal window [governed by § 1446(b)] with the
substantive right to remove would lead to absurd consequences, which can be illustrated by
a simple example. Because § 1446(b) grants the defendant thirty days to remove a case
following service of the complaint, if a removal window after CAFA's effective date is enough
to trigger application of CAFA, then CAFA actually applies to all civil actions commenced after
or up to thirty days before its designated effective date — a bizarre result contrary to the plain
wording of the Act’s effective date.”). But see Garner, supra note 8, at 1684 (“It stands to
reason that because the defendants raised a potential jurisdictional problem [,viz., § 9 of
CAFA], a court would look for answers in jurisdictional statutes. Knudsen I did as much by
looking to 28 U.S.C. § 1446(b) . . . .”).
44
28 U.S.C. § 1453(b) (2006).

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jurisdiction unless the plaintiff attempts to use an old suit insulated from
removal to bring new claims.
B. Fees and Costs
1. Standard of Review
We review for abuse of discretion a decision by the district court to grant
or deny attorneys’ fees and costs pursuant to 28 U.S.C. § 1447(c).45
2. Merits
As an initial matter, Louisiana claims that we lack jurisdiction to review
the order of the district court denying attorneys’ fees and costs. Although
CAFA’s limited exception to § 1447(d)’s bar to reviewing orders of remand does
not mention reviewing orders relating to fees and costs, such orders would be
reviewable even if the district court’s remand order were not; § 1447(d) does not
strip us of jurisdiction to review orders collateral to a remand order.46 We
therefore have jurisdiction.47
On the merits of the district court’s decision to deny fees and costs, we
cannot say that there was an abuse of discretion. We apply the test announced
by the Supreme Court in Martin v. Franklin Capital Corp., which held that
“absent unusual circumstances, attorney’s fees should not be awarded [under §
1447(c)] when the removing party has an objectively reasonable basis for

45
Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004).
46
See id.
47
In fact, Abshire et al. need not have petitioned for leave to cross-appeal this issue;
they need only have cross-appealed it after we granted Louisiana permission to appeal the
remand order. The prohibition against reviewing “[a]n order remanding a case . . . on appeal
or otherwise,” 28 U.S.C. § 1447(d), might create thorny issues when fees and costs have been
denied and we do not (or cannot) grant permission to appeal the underlying remand order, but
we need not pass on that issue today.

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removal.”48 The statute does not embody either a strong preference for or a
strong preference against fee awards.49
Even though there is some evidence in the record (e.g., Louisiana’s prior
effort to remove) that the instant removal had the “purpose of prolonging [the]
litigation and imposing costs on” Abshire et al., it is equally true that, given the
complexity of the instant commencement question, an award of fees might
“undermin[e] Congress’ basic decision to afford defendants a right to remove as
a general matter, when the statutory criteria are satisfied.” 50 After CAFA’s
effective date, Louisiana received an amended complaint that for the first time
included class allegations. Louisiana had only our decision in Braud as guidance
on our views, and Braud expressly withheld judgment on at least one issue
dispositive of the instant case. Although it may have been “objectively
unreasonable” for Louisiana to conclude that the changes in Abshire et al.’s
ninth amended complaint, at least in terms of their legal (as opposed to
strategic) effect, would suffice to constitute an entirely new civil action, we
cannot say that reaching the opposite conclusion was an abuse of discretion.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court
remanding this case to the state court from which it had been removed by
Louisiana and denying the claims of Abshire et al. for attorneys’ fees and costs.

48
546 U.S. 132, 136 (2005).
49
Id. at 140.
50
Id.

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