                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1067
                                   ___________

Graphic Communications Local 1B           *
Health & Welfare Fund “A”; The Twin       *
Cities Bakery Drivers Health and          *
Welfare Fund, individually and on         *
behalf of all others similarly situated,  *
                                          *
              Plaintiffs – Appellees,     *
                                          * Appeal from the United States
       v.                                 * District Court for the
                                          * District of Minnesota.
CVS Caremark Corporation; CVS             *
Pharmacy, Inc; Caremark, LLC;             *
Caremark Minnesota Specialty              *
Pharmacy, LLC; Caremark Minnesota *
Specialty Pharmacy Holding, LLC;          *
Kmart Holding Corporation; Sears,         *
Roebuck and Company; Sears Holding *
Corporation; Snyder’s Drug Stores         *
(2009), Inc.; Snyder’s Holdings (2009), *
Inc.; Target Corporation; Walgreens       *
Co.; Wal-Mart Stores, Inc.; Coborn’s, *
Inc.; Snyder’s Holdings, Inc.,            *
                                          *
              Defendants – Appellants. *
                                     ___________

                             Submitted: January 11, 2011
                                Filed: March 11, 2011
                                 ___________

Before BOWMAN, BYE, and SHEPHERD, Circuit Judges.
                           ___________
BYE, Circuit Judge.

       Plaintiffs, a group of union-sponsored health benefit plans, brought suit in
Minnesota state court alleging various generic drug pricing claims against Defendants,
who represent leading retail pharmacy chains. Plaintiffs also requested certification
of a class of all purchasers of, or third-party payment sources for, generic prescription
drugs dispensed by Defendants in Minnesota since July 28, 2003. On August 21,
2009, Defendants removed the case to federal court, asserting diversity jurisdiction
under the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d)(4). On
November 24, 2009, the district court granted Defendants’ motion to dismiss the
complaint without prejudice. The next day, Plaintiffs filed a second amended
complaint, and shortly thereafter, they moved to remand the case to state court based
on CAFA’s local controversy provision. On July 19, 2010, the district court granted
Plaintiffs’ motion and remanded the case to state court after it determined it lacked
subject matter jurisdiction over the matter. On appeal, Defendants contend CAFA’s
local controversy provision does not divest the court of subject matter jurisdiction, and
because Plaintiffs moved to remand the matter more than thirty days after removal,
the remand motion should have been denied as untimely pursuant to 28 U.S.C.
§ 1447(c). We reverse and remand to the district court for further proceedings.

       We review the district court’s interpretation of CAFA de novo. Westerfeld v.
Indep. Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010). Defendants first argue the
district court erred in concluding it lacked subject matter jurisdiction due to CAFA’s
local controversy provision, which provides “[a] district court shall decline to exercise
jurisdiction” if certain conditions are met. 28 U.S.C. § 1332(d)(4). We agree. In
analyzing the language of the statute in light of the purposes Congress sought to serve,
see Westerfeld, 621 F.3d at 824, the plain text demonstrates the district court has
broad subject matter jurisdiction in CAFA actions when the amount in controversy
exceeds $5,000,000 in the aggregate, minimal diversity exists among the parties, and
there are at least 100 members in the class. Id. at 822 (citing 28 U.S.C. § 1332(d).


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There is no dispute the jurisdictional requirements were satisfied in the instant case.
The local controversy provision, which is set apart from the above jurisdictional
requirements in the statute, inherently recognizes the district court has subject matter
jurisdiction by directing the court to “decline to exercise” such jurisdiction when
certain requirements are met. See, e.g. Serrano v. 180 Connect, Inc., 478 F.3d 1018,
1023 (9th Cir. 2007) (“§§ 1332(d)(4)(A) and (B) require federal courts – although
they have jurisdiction under § 1332(d)(2) – to ‘decline to exercise jurisdiction’ when
the criteria set forth in those provisions are met.”) (emphasis in original). Thus, the
local controversy provision operates as an abstention doctrine, which does not divest
the district court of subject matter jurisdiction.

       Our conclusion that the local controversy provision does not deprive courts of
subject matter jurisdiction accords with prior case law addressing other abstention
doctrines. For instance, in In re Otter Tail Power Co., 116 F.3d 1207, 1216 n.8 (8th
Cir. 1997), we noted, “the district court’s dismissal of this matter for lack of subject
matter jurisdiction is antithetical to a decision to abstain, which implicitly
acknowledges the existence of jurisdiction.” See also Wallace v. La. Citizens Prop.
Ins. Corp., 444 F.3d 697, 701 (5th Cir. 2006) (discussing how the abstention provision
at issue “does not deprive federal courts of subject matter jurisdiction, but rather, acts
as a limitation upon the exercise of jurisdiction granted” elsewhere in the statute).

       In conjunction with the above discussion, Defendants next argue the district
court erred in granting Plaintiffs’ motion to remand because the remand motion was
made more than thirty days after the case was removed to federal court. Under 28
U.S.C. § 1447(c), “[a] motion to remand the case on the basis of any defect other than
lack of subject matter jurisdiction must be made within 30 days after the filing of the
notice of removal . . . .” Having determined the local controversy provision is akin
to an abstention doctrine, which is not jurisdictional in nature, we must examine
whether it constitutes “any defect other than subject matter jurisdiction,” such that



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Plaintiffs’ remand motion was untimely because it was not brought within thirty days
after removal.

       To answer this question, we again start with the plain text of the statute.
Section 1447(c) and its related provisions do not define what constitutes a “defect.”
“The sixth edition of Black’s Law Dictionary, which was the current version when the
statute was amended, defines ‘defect’ as ‘[t]he want or absence of some legal
requisite; deficiency; imperfection; insufficiency.” Kamm v. ITEX Corp., 568 F.3d
752, 755 (9th Cir. 2009) (quoting Black’s Law Dictionary 418 (6th ed. 1990)). Based
on this commonly-understood definition of “defect,” Plaintiffs urge us to construe the
term narrowly, such that section 1332(d)(4) does not constitute a “defect.” See
Thomas R. Hrdlick, Appellate Review of Remand Orders in Removed Cases: Are
They Losing a Certain Appeal?, 82 Marq. L. Rev. 535, 572 (1999) (“On its face, the
term reasonably implies either the lack of something necessary or the presence of
something objectionable.”). Conversely, Defendants urge a broad reading of “defect,”
pointing to the statute’s full phrase “defect other than subject matter jurisdiction,”
which suggests that subject matter jurisdiction itself is a “defect” under the language
of the statute.

       Due to the ambiguous statutory text, we find it beneficial to examine the history
of section 1447(c). Prior to 1988, the statute read as follows:

      If at any time before final judgment it appears that the case was removed
      improvidently and without jurisdiction, the district court shall remand the
      case, and may order the payment of just costs.

Holmstrom v. Peterson, 492 F.3d 833, 836 (7th Cir. 2007) (quoting Thermtron Prods.,
Inc. v. Hermansdorfer, 423 U.S. 336, 342 (1976)). Despite the broad language, courts
construed the statute “to mean removals that were defective in terms of the statutory
conditions that Congress had placed on removal,” whereas removals based on



                                          -4-
abstention, among other doctrines, were held to be outside the scope of the statute.
Id. In 1988, section 1447(c) was amended to provide:

      A motion to remand the case on the basis of any defect in removal
      procedure must be made within 30 days after the filing of the notice of
      removal under section 1446(a). If at any time before final judgment it
      appears that the district court lacks subject matter jurisdiction, the case
      shall be remanded.

Id. (quoting 28 U.S.C. § 1447(c) (1994)). “The 1988 amendments sought to confirm
the courts’ narrow reading of § 1447(c) by replacing the term ‘improvidently’ with
‘defect in the removal procedure,’” and thus doctrines such as abstention continued
to be interpreted as being outside the statute’s bounds. Id. at 837. However, in the
seminal case of Snapper, Inc. v. Redan, 171 F.3d 1249, 1257-58 (11th Cir. 1999), the
Eleventh Circuit discussed how the 1988 formulation proved difficult for courts to
apply in the context of rules not traditionally categorized as procedural, such as the
forum defendant rule, which appeared to be more substantive in nature.
Correspondingly, a circuit split developed concerning whether the thirty-day limit
should apply in this context. Id. at 1258.

       According to Snapper, “[i]t is in this context that the 1996 version must be
understood.” Id. The 1996 amendment which produced the current version replaced
the language of “removal procedure” with “any defect other than lack of subject
matter jurisdiction.” 28 U.S.C. § 1447(c). “Commentators have suggested a possible
reading of the amendments to the effect that § 1447(c) now covers all remand orders.”
Autoridad de Energia Electrica de Puerto Rico v. Ericsson, Inc., 201 F.3d 15, 17 (1st
Cir. 2000); see also David D. Siegel, Commentary on 1996 Revision of Section
1447(c), 28 U.S.C.A. § 1447 (opining that abstention doctrines qualify as something
other than subject matter jurisdiction, and therefore come within the purview of
section 1447(c)). Indeed, Defendants suggest such a broad reading to include all



                                         -5-
remand motions other than those based on subject matter jurisdiction within the ambit
of section 1447(c).

       However, cases such as Snapper have held otherwise. There, the Eleventh
Circuit concluded “defect” is limited to removal defects, rather than any removable
ground. Snapper, 171 F.3d at 1258. According to the court, this result was bolstered
by the legislative history of section 1447(c), such as the fact the House Judiciary
Committee held no hearings on the 1996 amendment “because it viewed the Bill as
technical and noncontroversial.” Id. (quoting H.R. Rep. No. 104-219, at 2 (1996),
reprinted in 1996 U.S.C.C.A.N. 3417, 3418). Moreover, the legislative history
demonstrated the amendment was directed at clarifying Congress’s intent, and it was
intended to have only a small impact on cases because most courts were already
interpreting the law consistent with its intended purpose. Id. at 1258-59. Snapper
noted a contrary view in which the statute is read expansively to cover all remands
would radically depart from the established law. Id. at 1259. “Indeed, if the word
‘defect’ in the post-1996 version of § 1447(c) includes all grounds for remand other
than lack of subject matter jurisdiction, the post-1996 version would have overruled
two then-recent Supreme Court cases . . . .” Kamm, 568 F.3d at 756-57.

       Following Snapper, cases from other circuits have declined to read “defect” as
broadly as Defendants suggest. See, e.g. Kamm, 568 F.3d at 757 (concluding the
thirty-day limit did not apply to a forum selection clause because it was not a “defect”
within the meaning of the statute); Ericsson, 201 F.3d at 17 (holding the interpretation
of a forum selection clause was not a “defect” encompassed under the statute). We
find the reasoning in these cases persuasive in the instant matter. Although Congress
undoubtably intended to broaden section 1447(c) in 1996, we do not read the term
“defect” as broadly as Defendants suggest. “Congress could have changed § 1447(c)
to cover a motion to remand the case on ‘any basis’ or ‘any ground,’ but instead kept
the narrower term ‘defect.’ Kamm, 568 F.3d at 755. Accordingly, we conclude the
local controversy provision was not a “defect” within the meaning of section 1447(c).


                                          -6-
       However, “[t]he mere fact that the statutory time limitation on raising motions
to remand does not apply does not mean that non-1447(c) remands are necessarily
authorized at any time.” Snapper, 171 F.3d at 1257 n.18. Indeed, we do not believe
the applicable time limitation for the instant motion to remand is equivalent to the
anytime-before-judgment (or even on appeal) standard applicable for subject matter
jurisdiction. Prior to the 1988 amendment of section 1447(c), remand motions were
required to be brought within a “reasonable” time frame. Id. (citing Ayers v. Watson,
113 U.S. 594, 596-99 (1885)). In Snapper, the Eleventh Circuit noted “[t]his rule
continues for remands not covered by § 1447(c).” Id. (discussing how a reasonable
time may be “significantly shorter” in situations where remand is “generally apparent
from the time of removal,” and may even be synonymous with the statutory
requirement of thirty days). Likewise, in Kamm, the Ninth Circuit concluded there
were “good policy reasons” to impose a time limit on a remand motion based on a
forum selection clause, “whether that limit be thirty days or some other period,” such
as the fact that the parties should be aware of such a clause at the time of removal, and
the benefits of resolving the question early in the litigation. 568 F.3d at 757.

       We recognize there may be similar considerations to take into account in this
case, but, along with the central question of whether the more than 100 days it took
for Plaintiffs to move to remand constitutes a “reasonable” time frame, we remand to
the district court to make these determinations in the first instance. See Braden v.
Wal-Mart Stores, Inc., 588 F.3d 585, 603 (8th Cir. 2009) (remanding to the district
court to first determine a question that had not yet been presented).

      Accordingly, we reverse and remand for further proceedings.
                     ______________________________




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