FILED
United States Court of Appeals
Tenth Circuit
November 9, 2007
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MEL JEAN WEBER, Special
Representative of the Estate of Tom
Ruble, Individually; DONALD
CLAUSSEN, Individually and as Alleged
Class Representative; ZELMA BEERS, No. 06-6337
Individually and as Alleged Class
Representative; COLEEN MANNERING,
Individually and as Alleged Class
Representative; CHARLES KENNETH
DODSON, Trustee of the Charles Kenneth
Dodson Revocable Trust, Individually and
as Alleged Class Representative; DON
GARNER, Individually and as Alleged
Class Representative,
Plaintiffs-Intervenors -
Appellees,
v.
MOBIL OIL CORPORATION, a
corporation; EXXON MOBIL OIL
CORPORATION, a corporation; MOBIL
EXPLORATION & PRODUCING
SERVICES, INC.; MOBIL
EXPLORATION & PRODUCING U.S.,
INC., a corporation; MOBIL NATURAL
GAS, INC., a corporation,
Defendants-Petitioners -
Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D. Ct. No. CIV-05-1175-L)
Jonathan D. Hacker, O’Melveny & Myers, LLP, Washington, D.C. (Charles E.
Borden, O’Melveny & Myers, LLP, Washington, D.C., and Brian S. Engel,
McGinnis, Lochridge & Kilgore, Austin, Texas, with him on the briefs),
appearing for Appellants.
Robert D. Tomlinson, Tomlinson & O’Connell, P.C., Oklahoma City, Oklahoma
(Kenneth N. McKinney, Mary E. Nelson, and Toby M. McKinstry, Tomlinson &
O’Connell, P.C., Oklahoma City, Oklahoma; Jeremy Thurman, Napoli Bern Ripka
LLP, Oklahoma City, Oklahoma; and Paul Napoli and Marc Jay Bern, Napoli
Bern Ripka LLP, New York, New York, with him on the brief), appearing for
Appellees.
Before TACHA, Chief Circuit Judge, McKAY, and TYMKOVICH, Circuit
Judges.
TACHA, Chief Circuit Judge.
Defendants-Petitioners Mobil Exploration & Producing, U.S. (“MEPUS”)
and Mobil Natural Gas, Inc. (“MNGI”) removed a putative class action filed in
Oklahoma state court to federal court under the Class Action Fairness Act
(“CAFA”), Pub L. No. 109-2, 119 Stat. 4 (2005) (codified as amended in
scattered sections of 28 U.S.C.). The District Court remanded the case to state
court. MEPUS and MNGI then filed a petition in this Court for leave to appeal
the remand order. Because we conclude that this action commenced prior to the
effective date of CAFA, we do not have jurisdiction to hear the defendants’
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appeal and therefore deny their petition for review.
I. BACKGROUND
This case originated in May 2001, when J.C. Dobbins filed a class action
petition in Oklahoma state court against Mobil Oil Corporation, Inc. 1 and Mobil
Exploration & Producing, North America. 2 The current class definition 3 includes
owners of a “royalty interest” in the oil and gas underlying certain Oklahoma land
on which ExxonMobil Oil Corporation operates oil and gas wells. The putative
class sought damages for breach of contract, breach of plan unitization,
conversion, fraud, breach of fiduciary duties, and for a violation of the Oklahoma
Production Revenue Standards Act. It also sought equitable relief in the form of
an accounting and a constructive trust.
More than three years later, in October 2004, Colleen Mannering and two
other individuals—all of whom were apparently included in the class definition
outlined in the state action—filed a similar, though not identical, class action in
federal district court against the same two defendants. That putative class also
included royalty interest owners of oil and gas in the same Oklahoma land, but it
1
Approximately one month after this case was filed, Mobil Oil Corporation,
Inc. changed its name to ExxonMobil Oil Corporation.
2
The petition also named Whiting Petroleum Corporation as a defendant.
That entity is no longer a party to this suit.
3
The current class definition was modified from the original proposed
definition by the Second Amended Petition, which was filed in state court in
December 2004.
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was defined more broadly than the putative class in state court. Furthermore, in
addition to raising the same claims for damages and equitable relief as the state
action, the federal action also sought damages for breach of the implied duty to
market and tortious breach of contract, as well as for declaratory judgment and a
resulting trust.
In December 2004, the plaintiffs in the state-court class action filed a
second amended petition adding MEPUS and MNGI as defendants. These entities
were never named in the federal action.
The following year, in September 2005, the federal plaintiffs and the state
plaintiffs reached an agreement whereby the plaintiffs in the federal class action
voluntarily dismissed their complaint and filed a petition to intervene in the state-
court action. The plaintiff intervenors sought to assert class claims under its
expanded class definition and to assert the additional claims for damages and
equitable relief it raised in its federal petition. After hearing arguments, the state-
court judge allowed the intervention, but required the intervenors to accept the
class definition and claims as pleaded in the second amended petition.
MNGI and MEPUS then removed the case to the Western District of
Oklahoma under CAFA, which was enacted on February 18, 2005, and which
extends the subject matter jurisdiction of the federal courts to encompass putative
class actions in which at least one plaintiff class member is diverse from one
defendant and where the amount in controversy exceeds $5 million. 28 U.S.C. §
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1332(d); Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1092 (10th Cir. 2005).
The plaintiffs then moved to remand to Oklahoma state court, arguing that CAFA
did not apply to the action. 4 The District Court agreed and granted the motion.
Weber v. Mobil Oil Corp., 2006 WL 2045875, at *3, *5 (W.D. Okla. July 20,
2006).
MEPUS and MNGI filed a timely petition with this Court for leave to
appeal the District Court’s remand order. See 28 U.S.C. § 1453(c). A panel of
this Court provisionally granted the petition but reserved the final disposition of
the petition to this merits panel. We now deny the petition for lack of
jurisdiction.
II. DISCUSSION
Generally, an order remanding a case to the state court from which it
originated is not reviewable on appeal. See 28 U.S.C. §1447(d). MEPUS and
MNGI, however, filed their petition seeking leave to appeal under 28 U.S.C.
§ 1453(c)(1), a provision of CAFA that gives the federal appellate courts
discretionary jurisdiction to consider appeals of remand orders in certain types of
class actions. Pritchett, 420 F.3d at 1093. The provisions of CAFA, including
1453(c)(1), apply “to any civil action commenced on or after the date of
enactment of this Act.” 119 Stat. at 14; Pritchett, 420 F.3d at 1094. Our
4
There is no dispute among the parties that if CAFA applies to this action,
it is properly removable.
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first—and, as it turns out, our last—task in this case is to determine whether this
case “commenced” on or after the effective date of CAFA such that we may assert
jurisdiction over this case pursuant to § 1453(c)(1). See Pritchett, 420 F.3d at
1094 (“[F]ederal courts always have jurisdiction to consider their own
jurisdiction.”). As we explain below, we conclude that this action was
commenced prior to the effective date of CAFA. Section 1453(c)(1) therefore
does not provide a jurisdictional basis for considering the District Court’s remand
order.
As noted, CAFA applies “to any civil action commenced on or after the
date of enactment of this Act,” which was February 18, 2005. 119 Stat. at 14.
This class action originated well before then, when Mr. Dobbins filed his class-
action petition in Oklahoma state court in 2001. Under the general rule, filing the
petition in state court commenced the action. See Pritchett, 420 F.3d at 1094
(“[T]he general federal rule [is] that a lawsuit is commenced at a discrete moment
in time: the filing of the original complaint in a court of competent jurisdiction.”);
Okla. Stat. Ann. tit. 12, § 2003 (“A civil action is commenced by filing a petition
with the court.”). The one-time federal plaintiffs, however, intervened in this
action in September 2005—several months after the enactment of CAFA.
MEPUS and MNGI argue that the federal plaintiffs’ intervention “commenced” a
new lawsuit.
In determining whether the intervening plaintiffs commenced a new action
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that would trigger application of CAFA, we begin by noting that in order to
preserve our constitutional role as limited tribunals, we narrowly construe statutes
conferring jurisdiction on federal courts. Id. at 1094–95. “[I]f there is ambiguity
as to whether the instant statute confers federal jurisdiction over this case, we are
compelled to adopt a reasonable, narrow construction.” Id. at 1095.
In support of their position that this action commenced anew when the state
court granted the petition in intervention, MEPUS and MNGI rely heavily on this
Court’s decision in Prime Care of Northeast Kansas, LLC v. Humana Insurance
Co., 447 F.3d 1284 (10th Cir. 2006). In Prime Care, the plaintiffs filed a class
action in state court four days before CAFA was enacted. 447 F.3d at 1285. Two
months later, the plaintiffs amended the pleadings to add three new defendants.
Id. The newly added defendants removed the case, and the plaintiffs filed a
motion to remand, which the district court granted. Id. We accepted the
defendants’ petition for leave to appeal to address “whether CAFA permits the
removal of a class action filed before the Act’s effective date if the removing
defendant was first added by amendment after the effective date.” Id. We
ultimately held that “whether 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.” Id. at
1289. If the amendment relates back, the commencement date is the date of the
original filing of the action notwithstanding the amendment; if the amendment
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does not relate back, the action commences at the time of the amendment.
MEPUS and MNGI argue that a petition in intervention never relates back
to the original complaint, and, accordingly, under Prime Care the instant action
commenced when the new plaintiffs intervened. We disagree for several reasons.
First, Prime Care does not control this case. Prime Care addressed the extent to
which an amendment that added a new defendant altered the commencement date
of a lawsuit. Prime Care did not address the issue we face here—the extent to
which intervention might impact the commencement date. Thus, Prime Care’s
instruction to look to relation-back principles simply has no application on these
facts because the plaintiffs in this case have not amended the pleadings.
Second, MEPUS and MNGI paint with too broad a brush when they
contend that a petition in intervention never relates back to the filing of the
original complaint. In support of their contention, MEPUS and MNGI cite to
various cases holding that an intervening plaintiff “commences” a new action for
purposes of the statute of limitations. See, e.g., United States v. Randall & Blake,
817 F.2d 1188, 1192 (5th Cir. 1987) (noting “almost unanimous agreement among
the district courts addressing the question: the filing of the motion for
intervention . . . determines the commencement of the action for the purposes of
the statute of limitations”); Wright v. United States Rubber Co., 69 F. Supp. 621,
624 (S.D. Iowa 1946) (stating that “it is a general rule that the date of the filing
of a petition of intervention is the commencement of a new cause of action” for
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purposes of the statute of limitations). But see Greater N.Y. Health Care
Facilities Ass’n v. DeBuono, 697 N.E.2d 589, 592 (N.Y. 1998) (applying relation-
back principles to determine whether an intervening plaintiff’s complaint was
barred by statute of limitations). MEPUS and MNGI, however, make no
compelling argument why we must apply a statute-of-limitations rule in this
context. In our view, even if an intervening plaintiff always commences a new
action for purposes of the statute of limitations—an issue we do not decide
here—we see no reason why such a rule leads inevitably to the conclusion that an
intervening plaintiff commences a new action for purposes of a newly enacted
statute expanding federal subject matter jurisdiction such as CAFA.
The purpose of the statute of limitations is “to promote justice by
preventing surprises through the revival of claims that have been allowed to
slumber until evidence has been lost, memories have faded, and witnesses have
disappeared.” Order of R.R. Tels. v. Ry. Express Agency, Inc., 321 U.S. 342,
348–49 (1944). In other words, “even if one has a just claim it is unjust not to
put the adversary on notice to defend within the period of limitation.” Id. at 349.
To effectuate this purpose, those jurisdictions that have adopted the rule have
necessarily reasoned that an intervening plaintiff should not be permitted to
“piggyback” on the claims of an earlier plaintiff in order to escape the statutory
bar that would normally shield the defendant from liability as to the intervenor.
The same rationale simply does not apply here: MEPUS and MNGI are not
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subject to new liabilities by way of the intervening plaintiffs because the new
plaintiffs all appear to fall within the original class definition and because they do
not assert any additional claims against MEPUS and MNGI.
We further note that more recent authority permits application of relation-
back principles in a situation more analogous to the one at hand—specifically,
when a plaintiff amends his complaint to add new plaintiffs and the defendant
argues the amendment commenced a new action under CAFA. See, e.g., Phillips
v. Ford Motor Co., 435 F.3d 785 (7th Cir. 2006); Plubell v. Merck & Co., Inc.,
434 F.3d 1070 (8th Cir. 2006); Plummer v. Farmers Group, Inc., 388 F. Supp. 2d
1310 (E.D. Okla. 2005); see also Fed. R. Civ. P. 15 advisory committee’s note
(1966) (“[T]he attitude taken in revised Rule 15(c) toward change of defendants
extends by analogy to amendments changing plaintiff.”); Olech v. Village of
Willowbrook, 138 F. Supp. 2d 1036, 1041–44 (N.D. Ill. 2000) (applying relation-
back principles to determine whether newly added plaintiff’s claim was barred by
statute of limitations); Tessier v. Moffatt, 93 F. Supp. 2d 729, 736–37 (E.D. La.
1998) (same).
Finally, MEPUS and MNGI point to no authority, and we have not located
any, suggesting that intervening plaintiffs asserting identical causes of action
against the same defendants as named in the original complaint change the
commencement date of the suit for purposes of CAFA or any other jurisdictional
statute. Rather, the weight of the case law supports the opposite conclusion. See
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Dubois v. United States Dep’t of Agric., 102 F.3d 1273, 1295 n.27 (1st Cir. 2006)
(noting that, for purposes of a jurisdictional provision in the Clean Water Act, the
intervening plaintiff “did not ‘commence’ this action; it intervened in an existing
action”); see also Phillips, 435 F.3d at 786–88 (substituting class representative
does not alter date of commencement under CAFA); Plubell, 434 F.3d at 1071
(same); Gall v. Gov’t Employees Ins. Co., 2006 WL 2092611, at *3 (D. Colo. July
27, 2006) (severing claims does not alter date of commencement under CAFA);
Lally v. Country Mut. Ins. Co., 2006 WL 2092610, at *3 (D. Colo. July 27, 2006)
(same); Briggs v. Geico Gen. Ins. Co., 2006 WL 1897210, at *1–*2 (D. Colo. July
10, 2006) (same); cf. Pritchett, 420 F.3d at 1094 (“Although there exist some
unique circumstances in which some action other than filing a complaint in court
is deemed to ‘commence’ a lawsuit, we view these as exceptions to the general
federal rule that a lawsuit is commenced at a discrete moment in time: the filing
of the original complaint in a court of competent jurisdiction.” (internal citation
omitted)).
Given the authority on the matter, we hold that this action commenced with
the filing of the original pleading in May 2001 and that the petition in
intervention did not alter this commencement date. Therefore, CAFA does not
apply here, and without CAFA’s extension of federal jurisdiction over appeals of
remand orders, see 28 U.S.C. § 1453(c)(1), we do not have the authority to accept
MEPUS’s and MNGI’s petition for leave to appeal the order of the District Court
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remanding this case to state court. The petition is denied.
IV. CONCLUSION
For the reasons explained above, we DENY the petition for leave to appeal.
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