Docket Entries Since Last Update
NOTE: This court's RSS feed does not list MOTION entries, so Bloomberg Law cannot detect them and thus they will not be listed here. However, motions will be included if you update the docket.
WELLMARK INC, d.b.a. Wellmark Blue Cross and Blue Shield of Iowa, WELLMARK HEALTH PLAN OF IOWA, INC., an Iowa corporation, BLUE CROSS BLUE SHIELD ASSOCIATION, Petitioners, versus BRADLEY A. CHICOINE, D.C. BRADLEY A. CHICOINE, D.C., P.C., MARK A. NILES, D.C., NILES CHIROPRACTIC, INC., ROD R. REBARCAK, D.C., BEN WINECOFF, D.C., et. al., Respondents. LOUISIANA HEALTH SERVICE & INDEMNITY CO, d.b.a. Blue Cross and Blue Shield of Louisiana, BLUE CROSS BLUE SHIELD ASSOCIATION, Petitioners, versus OPELOUSAS GENERAL HOSPITAL AUTHORITY, d.b.a. Opelousas General Health System, Respondent.
January 10, 2019, Decided
Appeals from the United States District Court for the Northern District of Alabama.
For Wellmark Inc, doing business as: Wellmark Blue Cross and Blue Shield of Iowa, WELLMARK HEALTH PLAN OF IOWA, INC., an Iowa corporation, Blue Cross And Blue Shield Association, Petitioners (18-90018): Daniel E. Laytin, Zachary D. Holmstead, David J. Zott, Kirkland & Ellis, LLP, Chicago, IL; Hayward Draper, Nyemaster Goode, PC, Des Moines, IA; Michael C. Drew, Jones Walker LLP, New Orleans, LA.
For Bradley A. Chicoine, Bradley A. Chicoine, D.C., P.C., Mark A. Niles, D.C., Niles Chiropractic, Inc., Rod R. Rebarcak, D.C., Respondents (18-90018): Harley C. Erbe, Glenn L. Norris, Hawkins & Norris, PC, Des Moines, IA; Jeffrey Edwin Friedman, Friedman Dazzio Zulanas & Bowling, PC, Birmingham, AL; Kara Marie Simons, Steven P. Wandro, Wandro & Associates, PC, Des Moines, IA.
For Louisiana Health Service & Indemnity Co, doing business as: Blue Cross Blue Shield Of Louisiana, Blue Cross And Blue Shield Association, Petitioners (18-90019): Daniel E. Laytin, Zachary D. Holmstead, David J. Zott, Kirkland & Ellis, LLP, Chicago, IL; Hayward Draper, Nyemaster Goode, PC, Des Moines, IA; Michael C. Drew, Jones Walker LLP, New Orleans, LA; Charles A. O'Brien III, Allison Nunley Pham, Blue Cross and Blue Shield of Louisiana, Baton Rouge, LA; Gary J. Russo, Jones Walker, Lafayette, LA.
For Opelousas General Hospital Authority, Respondent (18-90019): Charles H. Van Horn, Berman Fink Van Horn, PC, Atlanta, GA; Thomas A. Filo, Cox Cox Filo & Camel, LLP, Lake Charles, LA; Patrick C. Morrow, Morrow Morrow Ryan & Bassett, Opelousas, LA; Arthur M. Murray, Stephen B. Murray Jr., Murray Law Firm, New Orleans, LA; James P. Ryan, Morrow Morrow Ryan & Bassett, Opelousas, LA.
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges. BRANCH, Circuit Judge, concurring.
Pursuant to 28 U.S.C. § 1453(c)(1) , Blue Cross Blue Shield Association; Wellmark, Inc.; Wellmark Health Plan of Iowa, Inc.; and Louisiana Health Service & Indemnity Co. (collectively, the "Petitioners") petition this Court for leave to appeal two district-court orders remanding cases to state courts. For the reasons explained below, we deny Petitioners' petitions.
Beginning in 2012, numerous class-action lawsuits were filed in federal court against Blue Cross Blue Shield Association ("Blue Cross") and its licensees raising antitrust challenges to Blue Cross's licensing agreements. In 2013, these lawsuits were transferred to the Northern District of Alabama and consolidated for resolution in multidistrict litigation ("the MDL"). See [*2] In re Blue Cross Blue Shield Antitrust Litigation, MDL 2406, No. 2:13-cv-20000-RDP (N.D. Ala.).1 Since then, other lawsuits have been filed against Blue Cross licensees in state courts. These petitions involve two such cases. In those cases, Blue Cross filed motions to intervene, the actions were removed to federal court, and the cases were transferred to the MDL.
The first case involved in these petitions concerns what we will call the Chicoine Case. In October 2015, Respondent Bradley Chicoine and other chiropractors filed a class action in Iowa state court against Wellmark, Inc., and Wellmark Health Plan of Iowa, Inc., two Blue Cross licensees. The action raised a single state-law claim for restraint of trade (challenging licensing practices) and, although it did not name Blue Cross as a party, it asserted that Blue Cross was a non-party co-conspirator. All parties were alleged to be citizens of Iowa.
The Iowa state court stayed the Chicoine Case, pending the outcome of the MDL. In April 2017, however, following an interlocutory appeal by the chiropractors, the Iowa Supreme Court vacated the stay, concluding that the case presented issues different from those raised in the MDL. See Chicoine v. Wellmark, Inc., 894 N.W.2d 454 (Iowa 2017).
Shortly after the stay was lifted, on June 14, 2017, Blue Cross filed a motion to intervene in the Chicoine Case under Iowa Rules of Civil Procedure 1.407(1) and 1.407(2) , asserting it was implicated as a co-conspirator in the case and claiming it had an interest in protecting its licensing agreements with the Wellmark defendants.
On the same day Blue Cross filed its motion to intervene, the Wellmark defendants filed a Notice of Removal, removing the case to the Southern District of Iowa before the state court had an opportunity to rule on the motion to intervene. The Wellmark defendants based removal of the action on 28 U.S.C. §§ 1453(b) and 1446(b)(3) . They asserted removal was appropriate because the Notice of Removal was filed within 30 days of receipt of Blue Cross's motion to intervene and because the district court had jurisdiction under the Class Action Fairness Act ("CAFA") 2 since Blue Cross was an Illinois corporation located in Chicago, so minimal diversity requirements were met.
In the meantime, in August 2016, Respondent Opelousas General Hospital Authority ("Opelousas") filed the second case involved in these petitions—a similar class action in Louisiana state court against Louisiana Health Service & Indemnity Company, a Blue Cross licensee (the "Opelousas Case"). All parties were alleged to be citizens of Louisiana. Nearly one year later, on June 27, 2017, Blue Cross filed a motion to intervene in the Opelousas Case pursuant to Louisiana Code of Civil Procedure Article 1091 , claiming it had an interest in the licensing agreements and asserting it was implicated as a co-conspirator in the action. The motion to intervene was filed just two days before a class-certification motion was set to be heard.
On the same day Blue Cross filed its motion to intervene, defendant Louisiana Health Service & Indemnity Company and Blue Cross joined in [*3] filing a Notice of Removal, removing the Opelousas Case to the Western District of Louisiana before the state court had an opportunity to rule on the motion to intervene. Defendant stated its removal of the action was based on 28 U.S.C. §§ 1453(b) and 1446(b)(3) . As in the Chicoine Case, the Opelousas defendant asserted removal was appropriate because the Notice of Removal was filed within 30 days of receipt of Blue Cross's motion to intervene and because the district court had jurisdiction under CAFA since Blue Cross was an Illinois corporation located in Chicago, so minimal diversity requirements were met.
The Chicoine and Opelousas plaintiffs filed motions in their respective cases to remand the actions to state court.
The Chicoine plaintiffs argued that the district court lacked jurisdiction under CAFA since all parties were citizens of Iowa and because CAFA's "home state" and "local controversy" exceptions applied.3 They also contended that the notice of removal was untimely under § 1446(b)(3) because it was not filed within thirty days of the complaint, which was filed in October 2015. In addition, the Chicoine plaintiffs noted that they filed an amended complaint, striking the allegation that Blue Cross was a non-party co-conspirator with the Wellmark defendants. And, according to the Chicoine plaintiffs, the amended complaint was filed prior to the Notice of Removal.
For its part, the Opelousas plaintiff also argued, among other things, that the parties were not diverse, so the district court lacked jurisdiction. It emphasized that Blue Cross was not a party in the case, and the state court had not granted Blue Cross leave to intervene.
In October 2017, both cases were transferred to the MDL in the Northern District of Alabama, where the plaintiffs were directed to file supplemental briefs regarding remand that relied on Eleventh Circuit law. The parties made arguments similar to those in their filings in the Iowa and Louisiana district courts and the Opelousas plaintiff further asserted that the action was not removable under § 1446(b)(3) because it was not based on a voluntary act of the plaintiff but rather, on the filing of Blue Cross's motion to intervene.
Blue Cross opposed remand, filing identical briefs in both cases. It asserted it was a proper party in both cases and had a right to intervene. Blue Cross argued that its presence in the case supported removal even though the motions to intervene had not been granted by the state court. In support of its position, Blue Cross relied on this Court's decisions in Farina v. Mission Investment Trust, 615 F.2d 1068 (5th Cir. 1980),4 and Castleberry v. Goldome Credit Corp., 408 F.3d 773 , 783-84 (11th Cir. 2005). And, as relevant here, Blue Cross countered Opelousas's argument that only a voluntary act of the plaintiff can trigger the removal clock.
In April 2018, the MDL district court entered separate but very similar orders in the two cases, granting the motions to remand. The district court noted that the defendants had removed the cases under § 1446(b)(3) and concluded that the propriety of the removal turned on the applicability [*4] of the voluntary-involuntary rule, which states that only a voluntary act of the plaintiff may convert a non-removable case into a removable one. Ultimately, the district court rejected the defendants' and Blue Cross's arguments that the voluntary-involuntary rule did not apply under the circumstances. It also disagreed that Blue Cross's motion to intervene provided a proper basis for removal. In doing so, the district court distinguished Farina and Castleberry, since those cases involved the FDIC, which is subject to special statutory provisions concerning jurisdiction and removal. While the district court observed that Blue Cross might be entitled to intervene, it nonetheless noted the plaintiffs in each of the cases opposed both intervention and removal, and the voluntary-involuntary rule precluded removal since "nothing about [Blue Cross's] inclusion in this case could possibly be construed as voluntary with regard to [the plaintiffs]."
The defendants and Blue Cross moved for reconsideration of the orders granting remand. In nearly identical orders, the district court denied these motions. Among other points, the district court stood by its conclusion that the voluntary-involuntary rule applies to removals based on § 1446(b)(3) , even when they rely on CAFA grounds.
Following the denial of the motion for reconsideration, the defendants in both cases, together with Blue Cross, filed identical petitions for permission to appeal the remand orders pursuant to 28 U.S.C. § 1453(c)(1) . Petitioners noted that this Court lacked any precedent establishing the standard for accepting an appeal under § 1453(c) but urged us to grant their petitions because they raised "important, unsettled, and recurrent CAFA-related issues." According to Petitioners, the case presents matters of first impression, including "whether CAFA's minimal-diversity requirement can be satisfied by intervention of a strategically omitted, but necessary and indispensable party," and "whether the voluntary-involuntary rule applies to CAFA removals."
In support of their request to appeal, Petitioners claim that the district court's remand orders are inconsistent with CAFA's purpose, structure, and text, which they contend, enable diversity jurisdiction based on intervention. They further point to the decisions in Farina and Castleberry in support of their assertion that removal is permissible even without the state court's grant of Blue Cross's motion for intervention. Finally, Petitioners argue that the voluntary-involuntary rule is inapplicable here.
The Chicoine Respondents oppose the petition in their case, arguing that the remand orders were not based on CAFA but rather, on procedural grounds. And the Chicoine Respondents reason, because the remand orders were based on a procedural defect, this Court lacks jurisdiction under 28 U.S.C. § 1447(d) . The Chicoine Respondents reiterate that Blue Cross was not a party to the underlying lawsuit since the motion to intervene was never granted. In the Chicoine Respondents' view, the case lacks the requisite diversity [*5] necessary for it to fall within CAFA. Moreover, they claim Farina and Castleberry do not stand for the proposition that the motion to intervene allowed for removal. With respect to the substance of Petitioners' claim, the Chicoine Respondents contend the voluntary-involuntary rule applies with equal force to CAFA cases, so the defendants in the respective cases had no right to remove the case.
The Opelousas Respondent also opposes the petition in its case, arguing that this Court lacks jurisdiction to review the remand orders, since they were based on a procedural defect and not CAFA-related grounds. In this regard, it claims that § 1447(d) precludes appellate review here. In support of its position, the Opelousas Respondent relies on this Court's decision in Hunter v. City of Montgomery, 859 F.3d 1329 (11th Cir. 2017).5 It also claims here, where the remands were based on a procedural defect and not CAFA grounds, § 1453(c)(1) does not apply to allow this Court's discretionary review of the remand orders.
We sought additional briefing regarding this Court's jurisdiction to review the remand orders in light of the Respondents' arguments. With the benefit of this additional briefing, we conclude we do have jurisdiction. But for the reasons explained below, we decline to exercise our discretion to grant the petitions to appeal.
A. This Court has jurisdiction to consider the petitions for appeal.
In general, when a district court remands a case following removal, the remand order is "not reviewable on appeal." See 28 U.S.C. § 1447(d) ; see also Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635 , 129 S. Ct. 1862 , 173 L. Ed. 2d 843 (2009). But the jurisdictional bar set forth in § 1447(d) is "tightly circumscribed to cover only remand orders within the scope of 28 U.S.C. § 1447(c) ." Corp. Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294 , 1296 (11th Cir. 2009) (citation omitted). Indeed, the ban on reviewability in § 1447(d) does not apply where the district court set forth a reason for remanding the case that is not found in § 1447(c) . See In re Shell Oil, 631 F.2d 1156 (5th Cir. Unit A, Oct. 30, 1980). As we have acknowledged, "we do have jurisdiction to decide [an] appeal, unless the remand order in [the] case (1) followed a timely motion for a defect other than subject matter jurisdiction, or (2) was based on the district court's lack of subject matter jurisdiction." Hunter, 859 F.3d at 1333 (citing Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336 , 345-46 , 96 S. Ct. 584 , 46 L. Ed. 2d 542 (1976), abrogated on other grounds by Quackenbush v. Allstate Ins. Co., 517 U.S. 706 , 116 S. Ct. 1712 , 135 L. Ed. 2d 1 (1996)).
The remand orders in both the Chicoine Case and the Opelousas Case appear to fall within § 1447(d) 's bar because the orders could fairly be characterized as following a motion setting forth a defect in removal procedure—due to the voluntary-involuntary rule—or because they were based on the district court's lack of subject-matter jurisdiction. But we need not resolve the issue of how the remand orders should be categorized because an exception to § 1447(d) 's jurisdictional bar exists, regardless.
Title 28, United States Code, § 1453 (c)(1) —the statute under which Petitioners seek review—creates an exception to § 1447(d) 's jurisdictional bar for class actions, including CAFA cases. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744 , 751 (11th Cir. [*6] 2010). Section 1453(c)(1) provides,
Section 1447 shall apply to any removal of a case under this section, except that notwithstanding section 1447(d) , a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not more than 10 days after entry of the order.28 U.S.C. § 1453(c)(1) (emphasis added). Therefore, § 1453(c)(1) , on its face, gives us the discretion to accept appeals of remand orders in CAFA cases. While Respondents contend that the remand orders here are not reviewable because they were based on a procedural defect and fall under § 1447(d) , we disagree; § 1453(c)(1) carves out an exception to the jurisdictional bar for class actions like the ones involved here.
As we have noted, Respondents rely on our decision in Hunter to argue that, despite the exception set forth in § 1453(c)(1) , § 1447(d) still precludes review of remand orders that are based on procedural grounds. Again, we disagree. The language of § 1453(c)(1) makes clear that "notwithstanding section 1447(d) " a court of appeals may accept an appeal from an order denying a motion to remand a class action to state court if the application for appeal is made within the requisite amount of time. So it is within our discretion to grant review of the remand orders. The plain terms of § 1453(c)(1) do not place any additional conditions on our discretion to accept an appeal under the statute. See BP America, Inc. v. Oklahoma ex rel. Edmondson, 613 F.3d 1029 , 1033 (10th Cir. 2010). Where a statute's language is plain and unambiguous, our inquiry ends. United States v. Silva, 443 F.3d 795 , 797-98 (11th Cir. 2006) (per curiam). That is so because "[t]he plain language is presumed to express congressional intent and will control a court's interpretation." United States v. Fisher, 289 F.3d 1329 , 1338 (11th Cir. 2002).
We also find respondents' reliance on Hunter to be misplaced. While Hunter involved our review of a remand order in a case removed to federal court under CAFA, our review was not based on our discretionary jurisdiction under § 1453(c)(1) . Rather, Hunter was a direct appeal under 28 U.S.C. § 1291 . Hunter, 859 F.3d at 1333-34 . There, we analyzed the relationship between §1447(d) and § 1291 , concluding that § 1447(d) 's jurisdictional bar on appellate review did not apply because the remand order was based on CAFA's local-controversy and home-state exceptions. Id . We held that these two exceptions did not "affect the existence of subject matter jurisdiction," so appellate review of the remand order was not foreclosed by § 1447(d) . Id. at 1334 .
Significantly, we did not address the interplay between § 1453(c)(1) and § 1447(d) . We expressly acknowledged that the appeal was not brought under § 1453(c) and recognized that § 1453(c) established a separate "permissive appeal procedure." Id. at 1334 n.3. Unlike in Hunter, jurisdiction over this appeal is premised upon §1453(c)—discretionary review.
Our decision in Scimone v. Carnival Corp., 720 F.3d 876 , 880 (11th Cir. 2013), also supports the conclusion that discretionary review under § 1453(c)(1) is not limited by § 1447(d) 's jurisdictional bar. There, we exercised our discretion and reviewed a district court's decision [*7] to remand a case to state court for lack of subject-matter jurisdiction. Id . We cited § 1453(c)(1) as "granting us jurisdiction to hear an appeal from a district court's grant or denial of a motion to remand a class action, notwithstanding 28 U.S.C. 1447(d) 's general proscription on appellate review of a remand order." Id .
Respondents also point out that the remand orders were not based upon "CAFA grounds" and suggest that we lack jurisdiction for this reason. Again, we disagree. Section 1453(c)(1) allows for discretionary review of orders "granting or denying a motion to remand a class action," without reference to the reasons for the order. See 28 U.S.C. § 1453(c)(1) . And persuasive authority supports the notion that § 1453(c)(1) endows this Court with jurisdiction to review remand orders as long as the case has been removed pursuant to CAFA. See Chan Healthcare Grp., PS v. Liberty Mut. Fire Ins. Co., 844 F.3d 1133 , 1140 (9th Cir. 2017) (joining Fifth, Sixth, and Eighth Circuits in concluding that § 1453(c)(1) is "limited to class actions brought under CAFA"); See also 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3724 (4th ed. 2014) (explaining that appellate courts "have interpreted Section 1453 to permit the appeal of grants and denials of motions to remand only in cases ostensibly removed pursuant to CAFA," and that "[c]lass actions for which other jurisdictional bases are utilized are treated as outside that provision.") (emphasis added). Contrary to Respondents' position, the remand orders need not be based upon CAFA grounds to be reviewable; as long as the case was ostensibly removed under CAFA, the remand orders are reviewable regardless of their rationale.
We conclude that § 1453(c)(1) provides us with the discretion to grant the present petitions to appeal because both cases were removed under CAFA, and the petitions for appeal were made in a timely manner. Evans v. Walter Indus., Inc., 449 F.3d 1159 , 1162 (11th Cir. 2006) ("review by the appeals court is clearly discretionary"); see also Pretka, 608 F.3d 744 (recognizing exception to § 28 U.S.C. § 1447(d) created for CAFA cases). Our ability to review the remand orders remains even if the basis for the removal was flawed. See e.g., Tmesys, Inc. v. Eufaula Drugs, Inc., 462 F.3d 1317 (11th Cir. 2006) (per curiam) (appellate jurisdiction available when case improperly removed under CAFA).
B. We cannot determine, based on the current record, whether these cases are properly
CAFA cases, so we deny the petitions for appeal.
Having determined that we have jurisdiction in these cases to consider the petitions for appeal, we must consider whether these are, in fact, CAFA cases. If so, we must consider whether to exercise our discretion to grant the petitions.
The CAFA statute does not set forth criteria to guide appellate courts as to when to exercise their discretion to allow an appeal. Nor have we yet identified the specific circumstances under which we will exercise our discretion to grant petitions to appeal pursuant to § 1453(c)(1) .
Some of our sister Circuits, however, have adopted guidelines [*8] to use in making this determination. For these courts, a key factor in the decision to exercise discretionary review is whether the remand order at issue raises an "important, unsettled, and recurrent" CAFA-related question. See Coll. of Dental Surgeons of Puerto Rico v. Conn. Gen. Life Ins. Co., 585 F.3d 33 , 39 (1st Cir. 2009). See also Coleman v. Estes Express Lines, Inc., 627 F.3d 1096 , 1100 (9th Cir. 2010) and BP Am., Inc., 613 F.3d at 1034 .
In BP America, Inc., for example, the Tenth Circuit relied on a decision by the First Circuit and adopted eight non-exhaustive factors for use in deciding when an appellate court should exercise its discretion under § 1453(c)(1) . Those factors include the following:
(1) "the presence of an important CAFA-related question"; (2) whether the question is "unsettled"; (3) "whether the question, at first glance, appears to be either incorrectly decided or at least fairly debatable"; (4) "whether the question is consequential to the resolution of the particular case"; (5) "whether the question is likely to evade effective review if left for consideration only after final judgment"; (6) whether the question is likely to recur; (7) "whether the application arises from a decision or order that is sufficiently final to position the case for intelligent review"; and (8) whether "the probable harm to the applicant should an immediate appeal be refused [outweighs] the probable harm to the other parties should an immediate appeal be entertained."BP Am., Inc., 613 F.3d at 1034 (quoting, in part, Coll. of Dental Surgeons of Puerto Rico, 585 F.3d at 38-39 ). The Tenth Circuit emphasized that, like the First Circuit, it did not take the factors to be "exhaustive considerations" or "rigid rules." Id. at 1035 . And in ultimately granting the petition to appeal, the Tenth Circuit noted that "the purpose of § 1453(c)(1) is to develop a body of appellate law interpreting CAFA." Id . (citation and internal quotation marks omitted).
The Ninth Circuit has adopted factors very similar to those set forth in BP America, Inc., and College of Dental Surgeons of Puerto Rico. See Coleman, 627 F.3d at 1100 . We. think these factors are helpful in determining whether to exercise our discretion to allow appeals under § 1453(c)(1) .
Nevertheless, we refrain from applying them here, since it is not even clear whether the cases involve an important "CAFA-related question." Indeed, only if Blue Cross becomes a party to the underlying actions is minimal diversity present that would trigger CAFA jurisdiction. But here, because a determination on Blue Cross's motions to intervene was never completed, it is not a party, which leaves only non-diverse parties in the state-court actions. Consequently, as the procedure of this matter currently stands, there does not appear to be CAFA jurisdiction because of a lack of diversity. And since the state courts did not have the opportunity to rule on Blue Cross's motions to intervene, we find it inappropriate to speculate as to what the outcome of any such decision might have been.
No binding authority holds that a case can be removed pursuant to CAFA based solely on the diverse citizenship of a party that has not yet been granted intervention. The cases upon which Petitioners [*9] rely— Farina and Castleberry —are distinguishable and do not support the proposition that generally, a party may remove a case to federal court when a motion to intervene is pending and has not yet been granted by the state court. A brief discussion of these two cases is warranted to demonstrate why they are not instructive here. Most significantly, both cases involve the FDIC as a party and highlight the corresponding special statutory considerations.
In Farina, the plaintiff filed an action in state court against various defendants, asking the court to issue an injunction to prevent the sale of his property and seeking for it to void the debt on the property as being in violation of the Texas usury laws. 615 F.2d at 1071 . The plaintiff served the petition on the FDIC as the receiver for one of the defendants (a bank). Id . The FDIC filed a petition for removal in the district court for the Northern District of Texas, citing 12 U.S.C. § 1819(4) , and stating that it was a "successor in interest" to the bank rather than its receiver. Id. at 1071-73 , 1075 . The case was immediately removed to the district court, and the plaintiff made no objection at this time to the removal. Id. at 1072 .
Later, after the FDIC filed a motion for summary judgment, the plaintiff raised an objection to the presence of the FDIC in the case and filed a motion to remand to state court. Id. at 1073 . The plaintiff argued that the FDIC "was never properly made a party to [the] suit" and without the FDIC, the district court lacked subject-matter jurisdiction. Id. at 1074 . The district court denied the motion to remand, and the plaintiff appealed. Id. at 1073-74 . The former Fifth Circuit affirmed, finding that the district court had jurisdiction. The appeals court noted that although the FDIC did not file a formal motion to intervene, it was "within the discretion of the District Court to treat the motion to remove as also a motion to intervene" and the district court granted it in its "obvious acceptance of FDIC as a party in the suit." Id. at 1075 .
Petitioners rely on Farina for the proposition that a state court need not rule on a motion to intervene prior to removal. But petitioners' reliance on Farina is misplaced. First, unlike in Farina, Blue Cross's motions to intervene were filed, but were never addressed by any court—either the state court or the district court. Second, the district court in Farina concluded that the FDIC was a "successor in interest" to one of the defendants, thus making it a party regardless of intervention. The same does not hold true here—Blue Cross does not claim to be a successor in interest to any of the other defendants. Third, and as discussed more thoroughly below, Farina is a unique case because it involves the FDIC, and by statute, the FDIC need not be a party in order to remove a case to federal court. See 12 U.S.C. § 1819(b)(2)(B) (noting that the FDIC may remove any action from a state court to the appropriate district court). Petitioners here, however, enjoy no such statutory right.
Our decision in Castleberry likewise fails to support Petitioners' contention that a ruling on the motion to intervene was unnecessary prior [*10] to removal. In Castleberry, we affirmed the existence of federal subject-matter jurisdiction in a class action removed to federal court by the FDIC, which was the receiver of one of the defendants. Castleberry, 408 F.3d at 776 . There, after the action had been pending, a defendant, Daiwa, filed a cross-claim and joined the FDIC as a defendant without obtaining leave of court. Id. at 777 . The FDIC then removed the case to federal court pursuant to 12 U.S.C. § 1819(b)(2)(B) . Id . The Castleberrys filed a motion to remand arguing, among other things, that removal by the FDIC was improper or ineffectual since Daiwa had not properly joined them as parties under Alabama law. Id at 777-78 . The district court denied the motion to remand, and the Castleberrys appealed.
The Castleberrys contended that Daiwa's cross-claim was not a properly filed "action, suit, or proceeding" under § 1819(b)(2)(B) because it was filed without leave of the state court. Id. at 783 . They asserted that the cross-claim should be construed as a motion for leave to amend the answer. Id . Based on that construction, the Castleberrys further argued that under Alabama law, Daiwa was required to seek leave to amend a pleading and did not, so Daiwa's cross-claim was never properly "filed" and consequently could not trigger the FDIC's § 1819 removal rights. Id .
We rejected that argument because it ignored the fact that "federal law determines whether the exercise of removal jurisdiction was proper, irrespective of state law procedural violations." Id . We took into consideration that, in enacting the removal right in § 1819 , "Congress used very strong language to afford the FDIC every possibility of having a federal forum" and that state procedural law should not "frustrate the unambiguous intent of federal legislation." Id . (citations omitted). With this in mind, we emphasized that we must look to the Federal Rules of Civil Procedure to determine whether Daiwa could be said to have "filed" its action against the FDIC under § 1819 . Id. at 784 . We then concluded that the cross-claim had been "filed" under Rule 5 (e), Fed. R. Civ. P ., because it had been delivered to the clerk of the Alabama state court. Id . And because the cross-claim had been properly "filed," it triggered the FDIC's removal rights under § 1819 . Id .
Again, Castleberry is not instructive here since it involves particular rights of the FDIC to remove a case pursuant to § 1819 . The case is also distinguishable because the FDIC's statutory removal rights were triggered by virtue of a cross-claim asserted against it by a defendant who was already a party in the case. Here, the removal was not based on a cross-claim filed by someone already a party in the case. Rather, the removal was based on the filing of a motion to intervene. The motion to intervene, in and of itself, did not grant Blue Cross or the defendants the right to remove the case to federal court. Instead, removal would have been appropriate if the motion to intervene had been granted, since Blue Cross would have become a party, creating minimal diversity to trigger CAFA jurisdiction.
Rule 24, Fed. R. Civ. P. , governs intervention and specifies that it [*11] must be done by way of a "timely motion." The rule also appears to contemplate that the court must take action on the motion. And we have acknowledged that pleadings that require leave of court are without effect until leave of court has been granted. Hoover v. Blue Cross Blue Shield of Ala., 855 F.2d 1538 , 1544 (11th Cir. 1988) (citing 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 1485 at 421 (1971)).
District courts within this Circuit and elsewhere have likewise held that until a third party's motion for leave to intervene is granted, a case cannot be properly removed. See, e.g., Engle v. R.J. Reynolds Tobacco Co., 122 F. Supp. 2d 1355 , 1361-62 (S.D. Fla. 2000) (holding that a motion to intervene does not trigger a right to removal under 28 U.S.C. § 1446(b) ).
We agree. Until a defendant is properly and formally a party in the action, we cannot determine whether there is diversity of citizenship. See 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 3730 (4th ed. 2014) ("Intervenors may file notices of removal if they are properly aligned as defendants, but the intervention must precede the removal.").
We think waiting for a determination on a motion to intervene before removing the case makes the most sense. A motion to intervene might never be granted, so unless and until it is, the motion should have no effect on the nature of the claims before the state court.
Here, because the state courts had not yet ruled on the motions to intervene when the cases were removed, Blue Cross was not a party to the actions, which would have provided the minimal diversity necessary to trigger CAFA jurisdiction. We deny the petitions to appeal since it is not at all clear at this point that this is a "CAFA case," and § 1453(c) tethers our discretionary review to CAFA determinations.6
For all of these reasons, we deny the Petitioners' request for permission to appeal the district court's remand orders under § 28 U.S.C. §1453(c)(1) .
BRANCH, Circuit Judge, concurring:
I concur in the panel's order denying Petitioners' request to appeal the district court's remand orders under 28 U.S.C. § 1453(c)(1) . Unless and until a diverse entity or person is properly a party, there can be no minimal diversity under CAFA. See id. § 1332(d)(2)(A) . But I do not join the panel's discussion of the factors other circuits rely on in determining whether to exercise their discretion under § 1453(c)(1) . I believe that discussion is unnecessary to our conclusion.
Other federal lawsuits were subsequently transferred to the MDL in addition to those transferred in 2013.
CAFA extends federal court jurisdiction to class actions involving at least 100 people who request at least $5 million in damages so long as "any member of a class of plaintiffs is a citizen of a State different from any defendant." 28 U.S.C. § 1332(d)(2)(A) , (d)(5) , (d)(6) .
Under CAFA, federal courts hear class actions with minimal diversity—only one plaintiff and one defendant need be citizens of different states—so long as there are 100 or more class members and aggregate amount in controversy of at least $5 million. Id . The removing defendant bears the burden of establishing federal-court jurisdiction. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744 , 752 (11th Cir. 2010); 28 U.S.C. § 1441(a) .
In Bonner v. City of Prichard, 661 F.2d 1206 , 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.
The Opelousas Respondent also relies on Hill v. National Insurance Underwriters, Inc., 641 F. App'x 899 (11th Cir. 2016). That decision is not precedential, so we do not address it further.
We have not considered whether the local-controversy or home-state exceptions, or both, might apply, as that is a question for the district court to consider in the first instance.