Patterson v. Dean Morris, L.L.P.

448 F.3d 736, 2006 U.S. App. LEXIS 10957, 2006 WL 1156388
Court of Appeals for the Fifth Circuit·Decided May 3, 2006·No. No. 06-30215·Published·Cited by 14 cases

Opinion

JERRY E. SMITH, Circuit Judge:

Defendants appeal an order remanding these class actions to state court for want of jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”), Pub.L. No. 109-2, 119 Stat. 4 (2005), and on the ground of equitable remand in bankruptcy. Finding the remand order proper in all respects, we affirm it in regard to CAFA, and we dismiss, for want of jurisdiction, the remand order in the Bauer matter and the equitable remand order in the Patterson matter.

I.

We may review orders of remand for asserted errors in the application of CAFA.1 As an initial matter, defendants allege that the district court erred by assigning the burden of proof to them to show that removal was appropriate.2 It is uncertain from the court’s opinion, however, how it assigned the burden of proof. It relied primarily on undisputed documents in the record, such as a fee schedule, fax confirmations, receipts, and a written notice, to determine the commencement date of the suit, and hence, the applicability of CAFA. Because this evidence suffices to answer the jurisdictional question, the allocation of the burden of proof is not relevant to the resolution of this case.

CAFA provides for original jurisdiction in federal court of certain class actions “commenced on or after the date of enactment,” which is February 18, 2005. Id. Plaintiffs allege that their actions commenced on February 17, 2005, the date they fax-filed their complaints. Defendants allege plaintiffs failed to pay required fees at the time of filing, and therefore the actions did not commence until May 6, when plaintiffs amended their complaints, or June 14, when they paid the balance of the fees. It is undisputed that, if plaintiffs’ actions commenced on or after February 18, CAFA would apply, and remand would be inappropriate.

[740]*740Louisiana law provides that a party may file an action by fax provided- that, within five days of filing, it forwards “[t]he applicable filing fee, if any[, and a] transmission fee of five dollars” to the clerk of court. La. R.S. 13:850 § B(2), (3). If the filing party fails to comply, the fax transmission “shall have no force or effect.” Id. § C.

Plaintiffs received a fax confirmation of their filing on February 18, which listed the fees for the Patterson suit as $5,127.00 and the fees for the Bauer suit as $4,689.00. On February 22, plaintiffs paid the clerk of court $3,039.00 for each of these cases. On May 12, 2005, they received a letter indicating they owed an additional $2,145.50, which they tendered on June 14. Defendants conclude from this late payment that plaintiffs did not comply with the five-day deadline of La. R.S. 13:850, so the effective date of their suit’s commencement was postponed until after February 18.

Plaintiffs, by contrast, argue that they paid all the fees requested by the clerk when they arrived at court on February 22, and became aware they owed additional money only when the court notified them on May 12 of the clerk’s error. Plaintiffs aver that they could not have paid the clerk additional fees earlier, even if they were so inclined, because all money paid to the court is non-refundable, and the court is not authorized to hold money on account. Therefore, plaintiffs contend they paid the “applicable filing fee” as required by statute at the relevant time, i.e., the amount requested by the clerk on February 22.

Based on the record, plaintiffs timely paid the “applicable filing fee” as defined in Hall v. Reber, 870 So.2d 424 (La.App. 3d Cir.2004), writ denied, 876 So.2d 809 (La.2004). There, the plaintiff paid $175.00 within five days of fax-filing to cover the filing fee and transmission fee. The clerk’s office later sent a notice that an additional $125.00 was required to complete processing of the suit, and plaintiff did not pay the additional amount until after the suit had prescribed. The breakdown of fees was as follows:

Base Deposit of Suit (one service included): $200.00
Additional Service (at $50.00 each): $100.00 ....
Total amount required for filing of suit: $300.00
Total amount already paid by your office: $175.00
TOTAL AMOUNT STILL OWED BY YOUR OFFICE: $125.00

Id. at 427. The court reasoned that because the total filing fee was $150.00 (the $200.00 base deposit minus $50.00 for one service), the plaintiff had tendered enough money to cover both the filing and transmission fees ($175.00 > $150.00 + $5.00) as required by La. R.S. 13:850. Therefore, the suit .commenced as of the filing date despite plaintiffs failure immediately to provide funds to effect service. See id. at 427-28.

When plaintiffs received notice on May 12 that they owed additional fees, the breakdown read as follows:

Extra Plaintiffs (12 x $84.00): $1,008.00
Extra Defendants (13 x $90.00): $1,170.00
Petition Fee: $3,006.50
Total Fee Due: $5,184.50
Payment Received: $3,039.00
Balance Due: $2,145.50

Plaintiffs’ initial payment on February 22 was sufficient to cover the petition fee and transmission fee ($3,039.00 > $3,006.50 + $5.00); therefore, Hall is precisely on point. Plaintiffs’ failure to pay fees to cover the costs of additional parties does not affect the commencement date of the suit under Louisiana law. In fact, though Hall provides no explanation of the plain[741]*741tiffs failure to pay in full, plaintiffs here provide the valid excuse that they timely paid all money requested on February 22.3

The cases cited by defendants deal with situations in which the plaintiff failed to provide sufficient funds to cover the statutorily required filing and transmission fees,4 so those decisions are inapplicable to the facts of this case. CAFA does not apply and cannot serve as a .basis for federal jurisdiction.5

II.

A.

The underlying claim is that defendants overcharged plaintiffs in connection with collection and foreclosure proceedings initiated by defendants. Plaintiffs filed two class action lawsuits, Patterson and Bauer, which were later consolidated. The Patterson class consists of “only those persons whose bankruptcy filing would or might support removal to federal court and or federal jurisdiction for their claim.” The Bauer class represents all other Louisiana residents.

Defendants maintain that, even if CAFA does not provide the district court with jurisdiction, it would still have power to hear this case under the general bankruptcy removal statute. See 28 U.S.C. § 1452. The court found that it lacked bankruptcy jurisdiction over Bauer, because the class had no members in bankruptcy and therefore had only state law claims.6 Although bankruptcy jurisdiction over Patterson was conceded, the court equitably remanded the action, applying Browning v. Navarro,

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Patterson v. Dean Morris, L.L.P., 448 F.3d 736, 2006 U.S. App. LEXIS 10957, 2006 WL 1156388 (5th Cir. 2006).

448 F.3d 736 (Patterson v. Dean Morris, L.L.P.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Mary Patterson Brian Battiste Thomas Thibodeaux Alex Hartley Edna B. Taylor Edward Carter Helen Carter Demeturie Simmons Melvin Franklin Ronald Singleton Helen Ratcliff Willie Brown Charles K. Battiste Leonard Acklin Jawana Acklin Debra Ellzey-Herron v. Dean Morris, L.L.P., Dean Morris, L.L.P. Leader Mortgage Company, L.L.C. Long Beach Mortgage Company Mortgage Electronics Registration Systems, Inc. Countrywide Home Loans, Inc. John C. Morris, III George B. Dean, Jr. Candice A. Courteau Charles H. Heck, Jr. Washington Mutual Bank Chase Home Finance, L.L.C. As Successor by Merger to Chase Manhattan Mortgage Corporation National City Bank, as Successor by Merger to the Provident Bank U.S. Bank, National Association, Robert Bauer Salome Lucineo Boyd Jim T. Bright Debra Bright Lionell J. Coleman Lynn L. Coleman Keenan Duckworth Karen Duckworth Mercedes Dutton Matthew David Dyer Terry Hardy, Sr. Terese La-Beaud Alton Pierce Willie Lee Rauls Rosalyn Veleary-Dodge v. Dean Morris, L.L.P. Banker's Trust of California Chase Manhattan Mortgage Corporation Washington Mutual Mortgage Electronics Registration Systems, Inc. Countrywide Home Loans, Inc. Bank One Corporation Sun Finance Company, L.L.C. Ocwen Loan Servicing, L.L.C., Successor in Interest to Ocwen Federal Bank, F.S.B. John C. Morris, III George B. Dean, Jr. Candice A. Courteau Charles H. Heck, Jr. Chase Home Finance, L.L.C., as Successor by Merger to Chase Manhattan Mortgage Corporation and Bank One Corporation Deutsche Bank Trust Company Americas, Formerly Known as Bankers Trust Company, Mary Patterson Larry Patterson Brian Battiste Debra Ellzey-Herron Thomas Thibodeaux Alex Hartley Edna B. Taylor Edward Carter Helen Carter Demeturie Simmons Melvin Franklin Ronald Singleton Helen Ratcliff Willie Brown Charles K. Battiste Leonard Acklin Jawana Acklin v. Dean Morris, L.L.P., Dean Morris, L.L.P. Leader Mortgage Company, L.L.C. Long Beach Mortgage Company Chase Home Finance, L.L.C., as Successor by Merger to Chase Manhattan Mortgage Corporation Washington Mutual Bank Mortgage Electronics Registration Systems, Inc. Countrywide Home Loans, Inc. John C. Morris, III George B. Dean, Jr. Candice Corteau Charles H. Heck, Jr. U.S. Bank, National Association National City Bank, N.A., Successor by Merger to Provident Bank, Mary Patterson Larry Patterson Brian Battiste Debra Ellzey-Herron Thomas Thibodeaux Alex Hartley Edna B. Taylor Edward Carter Helen Carter Demeturie Simmons Melvin Franklin Ronald Singleton Helen Ratcliff Willie Brown Charles Battiste Leonard Acklin Jawana Acklin v. Dean Morris, L.L.P., Dean Morris, L.L.P. Leader Mortgage Company, L.L.C. Long Beach Mortgage Company Chase Home Finance, L.L.C., as Successor by Merger to Chase Manhattan Mortgage Corporation Washington Mutual Bank U.S. Bank, National Association Mortgage Electronics Registration System, Inc. Countrywide Home Loans, Inc. John Morris, III George B. Dean, Jr. Candice A. Courteau Charles H. Heck, Jr. National City Bank, N.A., Successor by Merger to Provident Bank
448 F.3d 736 (Fifth Circuit, 2006)