11th Circuit Says "Just Kidding" and Reverses a Really Cappuccitti Decision
You've gotta respect someone who can say flatly, "I was wrong" -- particularly when he or she is a federal judge. And so this blog gives a tip of the hat to the Honorable Gerald Bard Tjoflat, the Honorable Charles Wilson, and the Honorable David Ebel -- the panel who had issued a decision this summer inexplicably holding that in order to have federal jurisdiction under the Class Action Fairness Act, at least one of the putative class members must have damages that meet the amount in controversy threshold for diversity jurisdiction. Both the plaintiff and the defendant sought rehearing en banc. The jurisdiction question had not even been raised in the court below or on appeal. The decision sparked a firestorm of criticism, and a forest of trees must have been slain to accommodate all of the amicus briefs arguing for reversal.
Rather than going to the trouble of having the entire Eleventh Circuit decide the question anew en banc, the original panel, in a per curiam opinion, reversed itself yesterday, saying simply:
On July 19, 2010, we issued an opinion in this case. We based our decision on our interpretation of the jurisdictional requirements of the Class Action Fairness Act of 2005 . . . which elsewhere we have called a "statutory labyrinth." Subsequent reflection has led us to conclude that our interpretation was incorrect. Specifically, CAFA's text does not require at least one plaintiff in a class action to meet the amount in controversy requirement of 28 U.S.C. sec. 1332(a). Accordingly, we construe both parties' petitions for rehearing en banc to include petitions for panel rehearing, vacate our opinion, and replace it with this one.
Elsewhere in the opinion, the panel made clear:
There is no requirement in a class action brought originally or on removal under CAFA that any individual plaintiff's claim exceed $75,000. Eleventh Circuit precedent does not contradict this proposition.
Id. at 6 (citation omitted).
One item is of note, however. There has been controversy in the Eleventh Circuit about removal of cases under the diversity statute where the complaint does not describe the amount in controversy or expressly disclaims damages in excess of the jurisdictional threshold. Specifically, who bears the burden of proof, and what sort of evidence is enough to establish the jurisdictional minimum?
The panel's per curiam decision suggests that there may be some controversy to come on the similar issue of the $5,000,000 jurisdictional minimum for CAFA jurisdiction, particularly given that CAFA jurisdiction can be invoked by plaintiffs or defendants. The panel observes in a footnote:
In his amended complaint, Cappuccitti states that "the matter in controversy exceeds the value of $5,000,000 exclusive of interests and costs," and DirecTV does not challenge this assertion. "If the jurisdictional amount is either clearly stated on the face of the documents before the court, or readily deducible from them, then the court has jurisdiction." Lowery, 483 F.3d at 1211. We assume that the sum claimed here by Cappucccitti was made in good faith, and it therefore controls. . . . We note, however, that discovery may uncover certain facts -- such as an insufficient number of Georgia subscribers, and therefore an insufficient number of class members, to allow for a recovery of $5,000,000 -- that would destroy the district court's jurisdiction over the case and require the court to dismiss the case under Federal Rule of Civil Procedure 12(b)(1). See id. at 289 (discussing the "legal certainty" test).
Slip op. at n.8 (citation omitted).
I owe acknowledgements to Andrew Trask at Classactioncountermeasures and my friends at the Washington Legal Foundation, who alerted me to this opinion.
