NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-2199
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GARY PROBOLA; BETH PROBOLA,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED
v.
LONG & FOSTER REAL ESTATE, INC.,
Appellant.
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 11-cv-6334)
District Judge: Hon. Anne E. Thompson
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Submitted Under Third Circuit LAR 34.1(a)
May 31, 2012
Before: AMBRO, JORDAN, and VANASKIE, Circuit Judges.
(Filed: June 1, 2012)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Gary and Beth Probola filed suit against Long & Foster Real Estate, Inc. (“L&F”)
in the Superior Court of New Jersey, Law Division, on behalf of a class of people whom
L&F allegedly charged unlawful fees in connection with real estate transactions. L&F
removed the Probolas’ case to the United States District Court for the District of New
Jersey, but the District Court remanded the matter to state court upon the Probolas’
motion. We, in turn, granted L&F leave to appeal that ruling. Having now reviewed the
record, including information that has come to light since L&F sought leave to appeal, we
will vacate that order as improvidently granted and dismiss L&F’s appeal.
I. Background
The Probolas are New Jersey residents who were assessed a $345 “Document Fee”
by L&F when they purchased New Jersey real estate and used L&F, a Virginia company,
as a real estate broker. (Joint App. at 8.) The Probolas believe the fee in question “is an
entirely duplicative and phony charge” (id. at 10) for which L&F performs no services,
and they seek to represent a class of “several thousand persons” who were also charged
that fee in buying or selling New Jersey real estate, (id. at 23). On behalf of that class,
they assert state-law claims under the New Jersey Consumer Fraud Act, the New Jersey
Truth-in-Consumer Contract, Warranty and Notice Act, and also plead a claim for breach
of fiduciary duty.
L&F removed the Probolas’ complaint to the District Court, claiming that their
state-law claims presented a federal question over which the District Court had
jurisdiction under 28 U.S.C. § 1331 and that the Court also had diversity jurisdiction
2
under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2). The Probolas
disagreed and asked the District Court to remand their case to state court. The District
Court did that, and, upon remand, the Probolas filed an amended complaint. Shortly
thereafter, L&F timely sought leave to appeal that ruling.1 While its request to appeal
was pending before us, L&F filed in state court a motion to dismiss the Probolas’ new
complaint. The Superior Court of New Jersey granted that motion and dismissed the
complaint with prejudice. The Probolas timely appealed that decision to the Appellate
Division of the Superior Court, which issued a scheduling order shortly thereafter.
Subsequently, albeit without the benefit of knowing the status (or existence) of the state
court proceedings, we granted L&F leave to appeal the District Court’s remand order.2
II. Discussion
We permitted this appeal in accordance with 28 U.S.C. § 1453(c)(1), which,
notwithstanding the general rule against appellate review of remand orders,3 allows us to
accept appeals of orders remanding class actions to state court. The purpose of that
statute is to allow courts to “develop a body of appellate law interpreting [CAFA] without
unduly delaying the litigation of class actions.” S. Rep. No. 109-14, at 49 (2005).
1
As we discuss infra, 28 U.S.C. § 1453(c)(1) permits “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 … if application is made to the court of appeals not more than 10 days after
entry of the order.”
2
The first mention either party made of the state court proceedings was in the
statement of the case in the briefing submitted after we had granted leave to file this
appeal.
3
As explained in greater detail infra in note 6, there is a “strong congressional
policy against review of remand orders.” Sykes v. Tex. Air Corp., 834 F.2d 488, 490 (5th
Cir. 1987).
3
Congress placed a time limitation on that discretionary authority, however, requiring an
appeal from a remand order to be disposed of within 60 days of the date on which leave
to appeal is granted. See 28 U.S.C. § 1453(c)(2) (stating that, unless an extension is
granted, “all action on such appeal … [must be completed] not later than 60 days after the
date on which such appeal was filed”); Morgan v. Gay, 471 F.3d 469, 472 (3d Cir. 2006)
(interpreting the 60-day period to run from the date leave to appeal is granted). As a
result of that limitation, courts have declined to address non-CAFA issues when
presented with § 1453(c)(1) appeals. See Alvarez v. Midland Credit Mgmt., Inc., 585
F.3d 890, 894 (5th Cir. 2009) (“As a result of the elimination of the unique issues under
CAFA and the desire not to resolve complex issues of federal versus state jurisdiction on
a limited record with abbreviated briefing and decisional deadlines, we conclude that our
original permission [to appeal under § 1453(c)(1)] was improvidently granted.”); Coffey
v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1247-48 (10th Cir. 2009)
(“Although this court has discretion to exercise its appellate jurisdiction to review the
CERCLA issue, it does not fit with the reasons behind § 1453(c)(1) to do so, and we
conclude that this is an appropriate case in which to decline to exercise that discretion.”).
Here, the primary dispute before us is whether the District Court had jurisdiction
under CAFA, which affords district courts “original jurisdiction of any civil action in
which the matter in controversy exceeds … $5,000,000, exclusive of interest and costs,
and is a class action in which … any member of a class of plaintiffs is a citizen of a State
4
different from any defendant.”4 28 U.S.C. § 1332(d)(2)(A). While the Probolas
acknowledge that they themselves are citizens of a state different from L&F, they claim
that federal jurisdiction under that statute is unwarranted because L&F has not met its
burden of establishing, while seeking removal, that the amount in controversy exceeds
$5,000,000. L&F disagrees, arguing that, because the Probolas’ pleading is ambiguous
as to the amount in controversy,5 the District Court should have exercised jurisdiction
unless it “appear[ed], to a legal certainty, that the [Probolas were] never entitled to
recover the jurisdictional amount.” (Appellant’s Opening Br. at 6.) In sum, then, the
dispute in this case turns on the appropriate standard for ascertaining whether or not a
case should be remanded when, following removal, the parties dispute whether the
relevant amount in controversy is satisfied.
Several of our cases have addressed how to conduct that analysis, see, e.g.,
Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007); see also Samuel-Bassett v. Kia
Motors Am., Inc., 357 F.3d 392 (3d Cir. 2004), and we have made clear that district
courts should apply the same standard regardless of whether or not the contested amount
in controversy flows from CAFA, see Morgan, 471 F.3d at 473 (“We see no reason to
create an exception for CAFA to the well-settled practice in removal actions.”). In other
4
The parties also dispute whether federal jurisdiction under 28 U.S.C. § 1331 is
appropriate, inasmuch as the Probolas’ state law claims rely, at least in part, on federal
law.
5
The closest the Probolas’ complaint comes to addressing the amount in
controversy is an averment, upon information and belief, that “the amounts collected by
[L&F] from buyers and sellers in New Jersey during the class period from class members
… is less than $5,000,000.” (Joint App. at 12.)
5
words, “whether we had one plaintiff or one thousand,” the jurisdictional question
presented in this case “would be the same.” Alvarez, 585 F.3d at 894; see id. (rejecting
the contention that the “interplay between CAFA and Rooker-Feldman” presented a
unique CAFA issue, and therefore declining to consider it (internal quotation marks
omitted)). Although we recognize that Ҥ 1453(c) does not limit our discretionary
appellate jurisdiction to matters unique or peculiar to CAFA,” id., we no longer think it
prudent to exercise that jurisdiction in this case, given that it has already proceeded to
judgment in state court. That judgment does not divest us of our ability to hear L&F’s
appeal, but it does pose practical problems that would have prompted us to reject the
request to hear its appeal – which, as a practical matter, asked us to consider the matter
on an expedited basis at the expense of our other cases – had we been apprised of the
status of the state court proceedings when we were considering it.6
6
While Congress has crafted an exception to the general policy against appellate
review of remand orders with respect to the type of order the District Court entered in this
case, the state court proceedings that occurred while L&F’s petition for leave to appeal
was pending are precisely the kinds of concerns upon which the “strong congressional
policy against review of remand orders” rest. Sykes, 834 F.2d at 490. As the United
States Court of Appeals for the Fifth Circuit aptly explained it:
If months or years later a federal Court of Appeals decides that the remand
was improper, matters are thrown into confusion and the effort expended by
the parties on the state court proceeding (along with a good deal of state
judicial resources) is in jeopardy. And if the state case has proceeded to
judgment, the subsequent re-removal is for naught as the parties are bound
by res judicata.
Id.
6
III. Conclusion
As a result, we will vacate as improvidently granted our order granting L&F leave
to appeal, and will dismiss this appeal.
7