                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-2006

Morgan v. Gay
Precedential or Non-Precedential: Precedential

Docket No. 06-8045




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PRECEDENTIAL

    THE UNITED STATES COURT OF APPEAL
          FOR THE THIRD CIRCUIT

                  Case No: 06-8045

       SARAH MORGAN, on behalf of herself
          and all others similarly situated


                           v.

  DENNIS W. GAY; GINA GAY; BASIC RESEARCH,
                      L.L.C.;
     BAN, L.L.C.; KLEIN-BECKER, USA L.L.C.;
 COVAXIL LABORATORIES, L.L.C.; CARTER-REED
                COMPANY, L.L.C.,
     a/k/a THE CARTER-REED COMPANY; A.G.
               WATERHOUSE, L.L.C.;
 ALPHAGENBO TECH, L.L.C.; BODY FORUM, L.L.C.;
  BODY INNOVENTIONS, L.L.C.; COVARIX, L.L.C.;
BYDEX MANAGEMENT, L.L.C.; NUTRASPORT, L.L.C;
  SOVAGE DERMALOGIC LABORATORIES, L.L.C.;
WESTERN HOLDING, L.L.C.; GEORGE EVAN BYBEE;
DANIEL B. MOWREY, Ph.D; NATHALIE CHEVREAU,
                      Ph.D;
  MITCHELL K. FRIEDLANDER; MICAHEL MEADE,

                                Petitioners


    On Appeal from the United States District Court
                for the District of New Jersey
               District Court No.-06-cv-01371
    District Judge: The Honorable Garrett E. Brown, Jr.



              Submitted September 7, 2006

 Before: BARRY, SMITH, and NYGAARD, Circuit Judges


                (Filed: October 16, 2006)

Counsel:    Walter H. Swayze, III
            Christian H. Gannon
            Robert J. Kenney
            Maria C. Carlucci
            Segal McCambridge Singer & Mahoney, LTD.
            830 Third Ave., 4th Floor
            New York, NY 10022

            John M. Agnello
            Kerrie Heslin
            Carella, Byrne, Bain, Gilfillian, Cecchi, Stewart
                   & Ostein
            5 Becker Farm Rd.
            Roseland, NJ 07068
            Counsel for Petitioner

            Jeffrey I. Carton
            Jill C. Owens

                                2
              Barry B. Cepelewicz
              Meiselman, Denlea, Packman, Carton & Eberz,
                    PC
              1311 Mamaroneck Ave.
              White Plains, NY 10605
              Counsel for Respondent




                           OPINION


SMITH, Circuit Judge.

                                I.

         This appeal raises what is an issue of first impression in
this Circuit: whether a statutory provision from the Class Action
Fairness Act (CAFA), Pub.L. No. 109-2, 119 Stat. 4 (2005)
(codified in scattered sections of 28 U.S.C.), will be read
according to the uncontested intent of Congress rather than as it
is literally (but mistakenly) written.

       The underlying action was filed by New Jersey
purchasers of the skin cream Stri Vectin-SD in the Superior
Court of New Jersey, alleging false advertising and other claims.
In March 2006, Defendants removed the action to federal court.
Plaintiffs sought remand back to Superior Court and, in an order
entered August 7, 2006, the District Court granted the motion

                                3
for remand to the state court, concluding that it lacked removal
jurisdiction. On August 16, 2006, seven days later (excluding
weekends and holidays1), Defendants filed the instant petition
for leave to appeal under 28 U.S.C. § 1453(c). This provision
of CAFA states that 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 less
than 7 days after entry of the order.” 28 U.S.C. § 1453(c)(1)
(emphasis added).

                               II.

       Section 1453(c)(1), by using the phrase “may accept an
appeal,” provides this Court discretion as to whether we should
grant the petition. We therefore exercise jurisdiction pursuant
to 28 U.S.C. § 1453. One of the key factors we examine to
determine whether to grant the request is the seven day timing
requirement. Because this issue involves a question of statutory
interpretation, our review is plenary. See E.I. DuPont De


     1
      Fed. R. App. P. 26(a) applies to § 1453(c)(1), so that
weekends and holidays are excluded when counting the seven
days. See Miedema v. Maytag Corp., 450 F.3d 1322, 1326
(11th Cir. 2006) (excluding the weekend); Amalgamated Transit
Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 435
F.3d 1140, 1146 (9th Cir. 2006); Patterson v. Dean Morris,
L.L.P., 444 F.3d 365, 368 n.1 (5th Cir. 2006) (citing
Amalgamated).
                               4
Nemours and Co. v. United States, 460 F.3d 515, 528 (3d Cir.
2006).

                                III.

        The issue that we now address is whether 28 U.S.C. §
1453(c)(1), which states that a federal appellate court “may
accept an appeal” from a remand order “if application is made
to the court of appeals not less than 7 days after entry of the
order,” should be interpreted by this Court to mean “not more
than 7 days after entry of the order.” Because the uncontested
legislative intent behind § 1453(c) was to impose a seven-day
deadline for appeals, we conclude that the statute as written
contains a typographical error and should be read to mean “not
more than 7 days.”

        A court’s primary purpose in statutory interpretation is to
discern legislative intent. See Rosenberg v. XM Ventures, 274
F.3d 137, 141 (3d Cir. 2001) (“The role of the courts in
interpreting a statute is to give effect to Congress’s intent.”).
“The plain meaning of legislation should be conclusive, except
in [] rare cases in which the literal application of a statute will
produce a result demonstrably at odds with the intentions of its
drafters. In such cases, the intention of the drafters, rather than
the strict language, controls.” United States v. Ron Pair Enters.,
Inc., 489 U.S. 235, 242 (1989) (citation and quotation omitted).
At some point in the legislative process, legislative intent for a
particular statute exists. As a point of fact, there can be multiple
legislative intents because hundreds of men and women must
                                 5
vote in favor of a bill in order for it to become a law. See Caleb
Nelson, What is Textualism?, 91 VA. L. REV. 347, 370 (2005)
(stating the textualist position that “the typical statute enacted by
Congress does not authoritatively reflect any collective intent on
policy goals that transcend its own terms”). For the vast
majority of ambiguous statutory provisions, then, relying on
legislative history to discern legislative intent should be done
with caution, if at all. This principle becomes even stronger
when the judiciary seeks to read an unambiguous statutory term
as its own antonym. See United States v. One “Piper”' Aztec
“F” De Luxe Model 250 PA 23 Aircraft Bearing Serial No.
XX-XXXXXXX, 321 F.3d 355, 359 (3d Cir. 2003) (stating that
“[o]ur task is to give effect to the will of Congress, and where its
will has been expressed in reasonably plain terms, that language
must ordinarily be regarded as conclusive”) (quoting Negonsott
v. Samuels, 507 U.S. 99, 104 (1993)). However, in that rare
instance where it is uncontested that legislative intent is at odds
with the literal terms of the statute, then a court’s primary role
is to effectuate the intent of Congress even if a word in the
statute instructs otherwise.

       Section 1453(c)(1) is one such rare instance. The only
piece of legislative history to discuss this section at length states
that:

       The purpose of this provision is to develop a body
       of appellate law interpreting the legislation
       without unduly delaying the litigation of class
       actions. As a general matter, appellate review of

                                 6
       orders remanding cases to state court is not
       permitted, as specified by 28 U.S.C. 1447(d).
       New subsection 1453(c) provides discretionary
       appellate review of remand orders under this
       legislation but also imposes time limits.
       Specifically, parties must file a notice of appeal
       within seven days after entry of a remand order.

S. Rep. 109-14, at 49 (2005) (emphasis added). This intention
to prevent undue delay can be seen not only in the statute’s
legislative history, but also in § 1453(c)(2), which instructs an
appellate court that it must dispose of the appeal within 60 days.

       In addition to legislative history, the deleterious
implications of applying § 1453(c)(1) as written also provides
evidence of a typographical error by Congress. As written, §
1453(c)(1) would grant plaintiffs and defendants the ability to
potentially abuse the litigation process because the party who
loses on the district court’s remand ruling could strategically
wait to appeal the remand decision at any time pre-trial.
Because the pre-trial stage of class action cases usually lasts
many months or even years, and because many pre-trial rulings
set the stage for how the trial will play out, extending the §
1453(c)(1) appeal through this entire process contravenes the
uncontested intent of the statute.

        The Eleventh Circuit in Miedema v. Maytag Corp., 450
F.3d 1322 (11th Cir. 2006), makes a similar point. If the statute
is applied as written, “there would be a front-end waiting period
                                7
(an application filed 6 days after entry of a remand order would
be premature), but there would be no back-end limit (an
application filed 600 days after entry of a remand order would
not be untimely).” Id. at 1326. See also Amalgamated Transit
Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 435
F.3d 1140, 1146 (9th Cir. 2006) (stating that the result would be
“entirely illogical” if a court “requir[ed] a party to wait seven
days before seeking to appeal an order granting or denying a
motion to remand, and then allow[ed] that party to seek
appellate review at any time in the future after the period has
passed”).

        It should come as no surprise that all three circuits to
have examined this question have also found that § 1453(c)(1)
should not be literally applied. See Amalgamated, 435 F.3d at
1146; Miedema, 450 F.3d at 1326; Pritchett v. Office Depot,
Inc., 420 F.3d 1090, 1093 n.2 (10th Cir. 2005) (“Given
Congress’ stated intent to impose time limits on appeals of class
action remand orders and the limited availability of appeals prior
to the statute's enactment, we can think of no plausible reason
why the text of [the] Act would instead impose a seven-day
waiting period followed by a limitless window for appeal.”).

        This Court does not need to step into a statutory
interpretation debate over the role of legislative history and
congressional intent to conclude that § 1453(c)(1) needs
common sense revision that accurately reflects the uncontested
intent of Congress. Judge Harold Leventhal has been famously
quoted as saying that citing legislative history is like “looking
                                8
over a crowd and picking out your friends.”2 In the case of §
1453(c)(1), however, the crowd speaks with one voice. We
therefore read “not less than” as “not more than” in accord with
the intent of Congress.




     2
      Patricia M. Wald, Some Observations on the Use of
Legislative History in the 1981 Supreme Court Term, 68 Iowa
L. Rev. 195, 214 (1983) (attributing the quote).
                               9
