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BROWN v. LEE
October 21, 2005.
JAMES LEE BROWN, ET AL., Plaintiffs,
JANICE MARIE LEE, ET AL., Defendants.
The opinion of the court was delivered by: GEORGE HOWARD Jr., District Judge
On August 5th, Delphi Automotive Systems and General Motors
removed this case from the Pulaski County Circuit Court due to
the July 8th amendment by the plaintiffs to the complaint
seeking to maintain the suit as a class action. These defendants
assert diversity jurisdiction under the Class Action Fairness Act
of 2005 ("CAFA") by that class action amendment permitting
removal at that time.
Plaintiffs filed a motion to remand on September 1st on the
ground that CAFA does not apply to this action which was
originally filed in state court on January 28, 2004, before
CAFA's effective date of February 18, 2005.
On September 27th, General Motors filed a response in
opposition to remand which Delphi adopted that same date. These
defendants assert that as the amended complaint filed on July
8th alleged class claims for the first time, the class action
commenced on that date and does not relate back to the original
complaint and so CAFA applies. They cite cases from other
jurisdictions in support of their position. By order filed on September 29th, the Court granted
plaintiffs' motion to amend his brief to add the September
23rd opinion filed in Weekly v. Guidant Corporation,
1:05CV00064 JLH, which dealt with the same issue of when a case
is commenced for purposes of CAFA. On October 3rd, plaintiff
again moved to amend referencing three opinions from the Western
District of Arkansas on the issue of commencement of an action
and CAFA removal finding that a case is commenced under CAFA when
it was originally filed in state court.
On October 5th, plaintiffs filed a reply distinguishing the
cases relied upon by these defendants and discussing the Weekly
General Motors filed a supplemental response on October
10th that the three Western District cases referenced by
plaintiffs only dealt with when a case was commenced under CAFA
and not the situation here when class allegations are added for
the first time after CAFA's effective date constituting
commencement of a new suit for CAFA removal purposes. They
continue that the Weekly decision is contrary to the great
weight of authority allowing removal under CAFA when the amended
complaint transforms an individual claim about an automobile
accident until a putative nationwide class action involving over
a million plaintiffs under 50 different laws and so does not
The Court has carefully considered the parties' arguments and
finds that Judge Holmes' analysis in Weekly is correct.
Pertinent excerpts of that reasoning follow:
Section 9 of the Class Action Fairness Act is about
as clear and simple as a statute can be; it says that
the Act "shall apply to any civil action commenced on
or after the date of enactment of this act." Rule 3
of the Arkansas Rules of Civil Procedure, like Rule 3
of the Federal Rules of Civil Procedure, provides
that an action is commenced by filing a complaint.
[Footnote omitted.] Because Weekly filed her
complaint before February 18, 2005, the Class Action
Fairness Act does not apply to this civil action. When Congress said in § 9 of the Class Action
Fairness Act that the Act would apply to "any civil
action commenced" before February 18, 2005, it used
clear, unambiguous, familiar legal terms. . . . . A
civil action, viewed as the whole case, the whole
proceedings, can only be commenced once. . . . .
Pleadings may be amended, but amending pleadings does
not commence a civil action.
* * * *
Had Congress intended that the Class Action Fairness
Act apply to civil actions that were commenced before
February 18, 2005, but did not become removable under
the Act until after February 18, 2005. it would have
been easy to add language to that effect in § 9. . . .
. It is not within the province of this Court to
read into the statute a provision that Congress chose
not to include. . . . .
Defendants earnestly argue that the amendment to the
complaint does not relate back to the original
complaint, and, conversely, plaintiff earnestly
argues that it does. Whether it does or does not is
irrelevant. Congress did not say that the Class
Action Fairness Act would apply to actions in which
the complaint was amended after February 18, 2005, so
as to make the action removable, unless the amendment
related back to the initial complaint, which is what
the statute would need to say for the discussion of
whether the amendment relates back to become
* * * *
If class certification is granted, the scope of the
litigation will then be greatly expanded. However,
Congress rejected a proposal to authorize removal for
actions certified a class actions after the date of
enactment. . . . . Congress could have made the Act
applicable to civil actions in which a class action
certification motion is filed after the date of
enactment or to civil actions in which the class
certification order is entered after the date of
enactment, but ti did not. Congress made the Act
applicable to any civil action commenced after
February 18, 2005. Congress did not make the Act
applicable to any civil action commenced before that
date. This civil action was commenced before that
date. Therefore, the Class Action Fairness Act does
not apply to it. The issue here is one of statutory
construction. The statute is unambiguous.
As in Weekly, this case was commenced in state court on
January 28, 2004, before the CAFA effective date of February 18,
2005. Thus, this action is not governed by CAFA and so removal by
defendants on the basis of CAFA is not permitted.
Accordingly, plaintiffs' October 3rd motion (#89) to amend
their brief is granted. Plaintiffs' September 1st motion
(#64) to remand the case to the Pulaski County Circuit Court is
granted. IT IS SO ORDERED.
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