[PUBLISH]
us. COUI~.i~L~F
APPEALS
ELEVENTH CIRCUiT
IN THE UNITED STATES COURT OF APPEA~O 2006
FOR THE ELEVENTH CIRC1~IT THOMAS K KAHN
CLERK
No. 06-90016-D
D.C. Docket No. 05-00300-CV-2-MHT
TMESYS, INC.,
Petitioner,
versus
EUFAULA DRUGS, INC.,
Respondent.
Appeal from the United States District Court
for the Middle District of Alabama
Before BIRCH, CARNES and HULL, Circuit Judges.
BY THE COURT:
Tmesys, Inc. (“Tmesys”) petitions for permission to appeal a district court
decision remanding to Alabama state court the case filed against it by respondent,
Eufaula Drugs, Inc. (“Eufaula Drugs”). Although we entertain the petition for the
limited purpose of clarifying certain law for our circuit with regard to the Class
Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1453(c)(l), the petition is
DENIED.
I. BACKGROUND
Eufaula Drugs filed a complaint in the Barbour County, Alabama, Circuit
Court clerk’s office on 14 February 2005. Summons were not issued until 28
February 2005, Tmesys removed the case to federal court pursuant to CAFA, and
Eufaula Drugs moved to remand. The district court found that “[w]hen Eufaula
Drugs filed its complaint on February 14, 2005, it had the specific intent that the
complaint be served on that day.” Eufaula Drugs. Inc. v Tmesys. Inc., 432 F.
Supp. 2d 1240, 1249 (M.D. Ala. 2006) (applying Alabama law and citing Ex parte
E. Ala. Mental Health-Mental Retardation Bd.. Inc., So.2d , 2006 WL 672685
(Ala. March 17, 2006). Accordingly, the court found that, because under Alabama
law that meant that the case had commenced prior to CAFA’s effective date, 18
February 2005, it lacked subject matter jurisdiction and was required to remand the
case to state court. See CAFA, Pub. L. No. 109-2, § 9, 119 Stat. 4, 14 (2005)
(setting effective date for CAFA amendments as the date of enactment, 18
February 2005).
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IL DISCUSSION
Under 28 U.S.C. § 1447(d) we are generally deprived of appellate
jurisdiction over remand orders. As to qualifying cases “commenced” on the day
of or after CAFA’s enactment, however, CAFA provides us discretionary appellate
jurisdiction to review such orders. 28 U.S.C. § 1453(c)(1); § 9, 119 Stat, at 14.
Here, we entertain the petition to appeal for the limited purpose of reviewing the
threshold issues of first impression in our circuit’ of(1) whether we have
jurisdiction to review an order remanding a case based on a finding that CAFA
does ~ apply and (2) what law controls as to when an action has “commenced”
for purposes of CAFA.
As to the first issue, we find that we do have jurisdiction to review a district
court’s order to remand when that order is based on a determination that CAFA
does not apply, at least to the extent of reexamining that jurisdictional issue. S~
Ecee, Inc. v. Fed. Energy Regulatory Comm’n, 611 F.2d 554, 555 (5th Cir. 1980)
(“[W]e always have jurisdiction to determine our jurisdiction.”); see ~ Patterson
v. Dean Morris, L.L.P., 448 F.3d 736, 738 (5th Cir. 2006) (“We may review orders
of remand for asserted errors in the application of CAFA.”).
As to the second issue, the consensus among circuits is that state law
~Thecourt has already received briefing from all parties on the jurisdictional issue and is
ruling only on that threshold issue.
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determines when an action is commenced for purposes of CAFA. Braud v.
Transport Serv. Co of Ill., 445 F.3d 801, 803 (5th Cir 2006); Plubell v. Merck &
Co., Inc., 434 F.3d 1070, 1071 (8th Cir. 2006); Bush v. Cheaptickets, Inc., 425
F.3d 683, 686 (9th Cir. 2005); see also Natale v. Pfizer, 424 F.3d 43, (1st Cir.
2005); Pfizer, Inc. v. Lott, 417 F.3d 725 (7th Cir. 2005). We agree.
III. CONCLUSION
Accordingly, because the district court’s application of Alabama law
established that the action was commenced prior to the effective date of the act and
it is clear that the district court properly applied Alabama law to the uiIdisputed
underlying facts, both the district court and our court are without jurisdiction under
CAFA.. Thus, we DENY the petition for permission to appeal.
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