Bloom v. Federal Deposit Insurance

738 F.3d 58, 2013 WL 6642702, 2013 U.S. App. LEXIS 25164
CourtCourt of Appeals for the Second Circuit
DecidedDecember 18, 2013
DocketDocket No. 11-5304-cv
StatusPublished
Cited by6 cases

This text of 738 F.3d 58 (Bloom v. Federal Deposit Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bloom v. Federal Deposit Insurance, 738 F.3d 58, 2013 WL 6642702, 2013 U.S. App. LEXIS 25164 (2d Cir. 2013).

Opinion

LOHIER, Circuit Judge:

William Bloom appeals from an order of the United States District Court for the Eastern District of New York (Spatt, J.), which principally (1) decertified a class of plaintiffs who asserted claims against the Federal Deposit Insurance Corporation (“FDIC”), and (2) denied the plaintiffs’ motion to permit Bloom, who was not a named party to the action before the District Court, to intervene. However, Bloom failed to notice an appeal of the denial of the motion to allow him to intervene. As a nonparty, he cannot otherwise challenge the decertification order on appeal. Accordingly, we DISMISS the appeal.

BACKGROUND

This appeal arises out of a lawsuit first filed in 2005 that eventually involved four named plaintiffs. The named plaintiffs asserted various state and federal causes of action against Washington Mutual Bank, FA (“WMB”) and other entities affiliated with Washington Mutual. The named plaintiffs alleged that they and thousands of other customers had been charged modest but improper fees when they made early payments on their home mortgages. In 2007 the District Court dismissed several of the plaintiffs’ claims, including a claim under the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., because none of the named plaintiffs had alleged that the defendants charged them more than $100 in improper fees, as required to state a TILA claim. However, the District Court left open the possibility that the named plaintiffs could join other class members who met TILA’s threshold requirement.

In 2008 WMB failed and the FDIC was appointed as receiver. Later that year, the District Court certified a class to proceed with non-TILA claims against the FDIC as receiver, and then stayed the litigation to allow the plaintiffs to exhaust their administrative remedies with the FDIC. The named plaintiffs then filed a “class claim” with the FDIC seeking, among other things, to exhaust their own administrative remedies and those of the unnamed class members, but the FDIC rejected the class claim as not renewable under its administrative claims process. By contrast, the FDIC reviewed and processed but ultimately denied the administrative claims of the named plaintiffs.

After the stay was lifted, the FDIC moved to decertify the class and for partial judgment on the pleadings. The named plaintiffs separately moved to permit Bloom to intervene as an additional named plaintiff. Bloom’s addition as a named plaintiff ostensibly would have enabled them to assert a new class claim under TILA based on an allegedly improper $120 fee charged to Bloom. The named plaintiffs also moved to add JPMorgan Chase Bank, NA (“JPMorgan”) as a defendant.

By Memorandum of Decision and Order dated May 13, 2010, the District Court granted the FDIC’s motion to decertify the class based on lack of numerosity because only the four named plaintiffs, and none of the unnamed class members, had exhausted administrative remedies with the FDIC. As relevant here, the District Court also denied the motions to add Bloom as an intervening named plaintiff and JPMorgan as a defendant. Bloom filed a timely notice of appeal. The named plaintiffs did not appeal.

DISCUSSION

As a threshold matter, we are asked to determine whether Bloom’s appeal is properly before us based on his notice of appeal, see United Airlines, Inc. v. Mc[61]*61Donald, 432 U.S. 385, 392-96, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977) (approving process whereby unnamed putative class member appealed both the denial of her motion to intervene and the denial of class certification), or because he otherwise satisfies the narrow requirements for appealing a judgment by a nonparty, see Official Comm. of Unsecured Creditors of World-Com, Inc. v. SEC, 467 F.3d 73, 78 (2d Cir.2006). We address each of these two possible bases in turn and conclude that Bloom satisfies neither. Accordingly, we dismiss the appeal.1

A. Notice of Appeal

Bloom’s notice of appeal reads, in relevant part, as follows:

Plaintiff William Bloom hereby appeals to the United States Court of Appeals for the Second Circuit the portion of the district court’s May 13, 2010 Memorandum of Decision and Order (Dkt.302) that: i) decertified the class certified by the district court on December 29, 2008 against Washington Mutual Bank and/or the Federal Deposit Insurance Corporation in its capacity as Receiver for Washington Mutual Bank (the “FDIC/ WMB” [) ]; and ii) granted in part the FDIC/WMB’s motion for partial judgment on the pleadings.

Joint App’x at 292.

Federal Rule of Appellate Procedure 3(c) provides: “The notice of appeal must ... designate the judgment, order, or part thereof being appealed____” Although we “liberally constru[e] the designation requirement” of Rule 3, R Best Produce, Inc. v. DiSapio, 540 F.3d 115, 122 (2d Cir.2008) (quotation marks omitted), “[o]ur jurisdiction ... depends on whether the intent to appeal from [a] decision is clear on the face of, or can be inferred from, the notice[ ] of appeal,” New Phone Co. v. City of New York, 498 F.3d 127, 131 (2d Cir.2007).

Here, the District Court decision resolved four basic issues: (1) decertification of the class, (2) partial judgment on the pleadings, (3) intervention of Bloom as an additional named plaintiff, and (4) join-der of JPMorgan as a deféndant. But Bloom’s notice of appeal states that he is appealing only “the portion[s]” of the District Court decision decertifying the class and granting in part the FDIC’s motion for partial judgment on the pleadings. It makes no mention of the part of the court’s decision denying the plaintiffs’ motion to permit Bloom’s intervention. Nor does it evidence any intent to appeal from the entire decision. Even construing the notice of appeal liberally, under the circumstances we cannot infer. an intent to appeal from the portion of the decision, unmentioned in the notice, that denied the plaintiffs’ motion to permit Bloom’s intervention. See id. (“Because none of the [62]*62notices of appeal mention the August 5 filing injunction and the intent to appeal from it cannot be inferred from the notices, we must dismiss the appeal for lack of jurisdiction insofar as the appellants seek review of that filing injunction.”). Accordingly, because Bloom has not appealed the denial of the motion to permit his intervention as a plaintiff, he is a non-party and cannot appeal the District Court’s denial of class certification unless he meets the requirements for appealing as a nonparty.

B. Appeal by a Nonparty

“As a general rule, only parties to a lawsuit, whether from the outset or through intervention, may appeal an adverse judgment.” Official Comm. of Unsecured Creditors of WorldCom, 467 F.3d at 77. We have recognized two exceptions to this rule. First, “a nonparty may appeal a judgment by which it is bound.” Id. at 78.

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Cite This Page — Counsel Stack

Bluebook (online)
738 F.3d 58, 2013 WL 6642702, 2013 U.S. App. LEXIS 25164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bloom-v-federal-deposit-insurance-ca2-2013.