Nessel v. Amerigas Partners, L.P.

954 F.3d 831

Dana NESSEL, Attorney General of the State of Michigan, EX REL., The People of the State of MICHIGAN, Plaintiff-Appellee,

v.AMERIGAS PARTNERS, L.P.; AmeriGas Propane, L.P., Defendants-Appellants.

No. 20-1098

United States Court of Appeals, Sixth Circuit.

Decided and Filed: March 27, 2020

CLAY, Circuit Judge.

Defendants AmeriGas Partners, L.P., and AmeriGas Propane, L.P., (collectively, "AmeriGas") appeal the district court’s order remanding this action to state court. This appeal presents the question of whether a representative action brought by the Michigan Attorney General pursuant to the Michigan Consumer Protection Act, Mich. Comp. Laws § 445.901 et seq. , is a removable "class action" under the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4. For the reasons that follow, we find that it is not and thus affirm the district court’s order.

I.

The State of Michigan, through its Attorney General, initiated this lawsuit in state court in June 2018. Michigan alleges that AmeriGas—the largest provider of residential propane in Michigan—violated numerous provisions of the Michigan Consumer Protection Act ("MCPA"), Mich. Comp. Laws § 445.901 et seq. , by engaging in unfair trade practices, including illegal pricing schemes. The complaint states that the Attorney General is authorized to bring this suit on behalf of the Michigan residents affected by AmeriGas’s alleged unfair practices, in part, by Section 10 of the MCPA, codified at Mich. Comp. Laws § 445.910. Section 10, titled "class actions by attorney general for actual damages," provides in part that:

The attorney general may bring a class action on behalf of persons residing in or injured in this state for the actual damages caused by any of the following: (a) A method, act or practice in trade or commerce defined as unlawful under section 3 [unfair, unconscionable, or deceptive methods, acts, or practices].

Id. § 445.910 (footnote omitted).

AmeriGas then removed the case to federal court, arguing that the Attorney General’s lawsuit is a "class action" under the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of Title 28 of the United States Code). The district court disagreed. It found that the Attorney General’s lawsuit did not qualify as a "class action" under CAFA because Section 10 "lacks the core requirements of typicality, commonality, adequacy, and numerosity that are necessary to certify a class under [Federal Rule of Civil Procedure] 23." Nessel ex rel. Michigan v. Amerigas Partners, L.P. , No. 2:18-CV-13196-TGB, 421 F.Supp.3d 507, 512, 2019 WL 4744334, at *3 (E.D. Mich. Sept. 30, 2019). Thus, the district court found that it lacked subject matter jurisdiction over the action and remanded the case to state court. Id. 421 F.Supp.3d at 514, at *5.

AmeriGas next petitioned this Court for permission to appeal the district court’s remand order. Although an order remanding a case to state court for lack of subject matter jurisdiction is generally not appealable, see 28 U.S.C. § 1447(d), this Court has discretion to accept an appeal from a remand order when that appeal presents a CAFA-related issue, see id. § 1453(c)(1). We granted the petition to appeal in order to determine if the Attorney General’s lawsuit brought pursuant to Section 10 of the Michigan Consumer Protection Act is a "class action" for purposes of CAFA removability. We now affirm.

II.

In general, a defendant may remove a civil case from state court to federal court if the action could have originally been brought in federal court. Martin v. Franklin Capital Corp. , 546 U.S. 132, 134, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (citing 28 U.S.C. § 1441 ). Federal courts have original jurisdiction over two types of cases: cases that involve a federal question, see 28 U.S.C. § 1331, and cases in which there is complete diversity of citizenship between the parties and the amount in controversy requirement is satisfied, see id. § 1332(a). Congress through CAFA sought to relax the requirements of diversity jurisdiction in order to make it easier for plaintiffs to bring certain interstate class actions and mass actions in federal court. See Mississippi ex rel. Hood v. AU Optronics Corp. , 571 U.S. 161, 165, 134 S.Ct. 736, 187 L.Ed.2d 654 (2014) ; see also Standard Fire Ins. Co. v. Knowles , 568 U.S. 588, 595, 133 S.Ct. 1345, 185 L.Ed.2d 439 (2013) ("CAFA’s primary objective [is] ensuring ‘[f]ederal court consideration of interstate cases of national importance.’ " (quoting § 2(b)(2), 119 Stat. 5)). Under CAFA, a federal court has original jurisdiction over a class action when (1) there is minimal diversity of citizenship between the parties; (2) the aggregate amount in controversy exceeds $5 million; and (3) the proposed class contains at least 100 members. 28 U.S.C. § 1332(d)(2)–(6) ; see Dart Cherokee Basin Operating Co., LLC v. Owens , 574 U.S. 81, 84–85, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014). CAFA defines a "class action" as "any civil action filed under Rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action." 28 U.S.C. § 1332(d)(1)(B).

We review the district court’s remand order and interpretation of CAFA de novo . Davenport v. Lockwood, Andrews & Newnam, Inc. , 854 F.3d 905, 908 (6th Cir. 2017). Generally, "statutory procedures for removal are to be strictly construed," Syngenta Crop Prot., Inc. v. Henson , 537 U.S. 28, 32, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002), such that "[a]ll doubts as to the propriety of removal are resolved in favor of remand," Coyne v. Am. Tobacco Co. , 183 F.3d 488, 493 (6th Cir. 1999). However, "no antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions in federal court." Owens , 574 U.S. at 89, 135 S.Ct. 547. Therefore, we review the district court’s order in this case de novo without employing any "antiremoval presumption." Id. ; accord Graiser v. Visionworks of Am., Inc. , 819 F.3d 277, 283 (6th Cir. 2016).

When determining whether removal jurisdiction exists under CAFA, we begin by looking to the plain text of the statute. See, e.g. , Lamie v. U.S. Tr. , 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). If the statutory language is unambiguous, we enforce it according to its terms. Jimenez v. Quarterman , 555 U.S. 113, 118, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009). As noted above, CAFA provides that a "class action" is "any civil action filed under Rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action." 28 U.S.C. § 1332(d)(1)(B). " ‘While [this] statutory definition is, to some degree circular,’ ... it is nonetheless unambiguous." Purdue Pharma L.P. v. Kentucky , 704 F.3d 208, 214 (2d Cir. 2013) (quoting West Virginia ex rel. McGraw v. CVS Pharmacy, Inc. , 646 F.3d 169, 174 (4th Cir. 2011) ); accord Washington v. Chimei Innolux Corp. , 659 F.3d 842, 848 (9th Cir. 2011) ("There is no ambiguity in CAFA’s definition of class action."). Through this definition, "Congress undoubtedly intended to define ‘class action’ in terms of its similarity and close resemblance to Rule 23." CVS Pharmacy , 646 F.3d at 174.

Rule 23 specifies four prerequisites that must be satisfied before a member of a class may sue or be sued as a representative party. First, the class must be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). Next, there must be "questions of law or fact common to the class," Fed. R. Civ. P. 23(a)(2), and the claims or defenses of the representative party must be "typical of the claims or defenses of the class," Fed. R. Civ. P. 23(a)(3). Lastly, the representative party must be able to "fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). These four requirements—numerosity, commonality, typicality, and adequate representation—are the defining characteristics of Rule 23. And, under CAFA, removal jurisdiction exists only when a class action is brought pursuant to Rule 23 itself or a "similar" state statute. 28 U.S.C. § 1332(d)(1)(B). Merriam-Webster defines "similar" as "having characteristics in common" or "alike in substance or essentials." Merriam-Webster’s Collegiate Dictionary (11th ed. 2003); see also Oxford English Dictionary (3d ed. 2019) (defining "similar" as "of a like nature or kind"). The Attorney General’s lawsuit brought pursuant to Section 10 of the MCPA does not satisfy any of these core requirements, most notably typicality and adequate representation, and so is not similar to a class action brought pursuant to Rule 23.

To start, Section 10 does not require the Attorney General to have suffered an injury at the hands of Defendants or to bring a claim that is otherwise typical of each class member’s claim. See Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ("We have repeatedly held that ‘a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.’ " (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez , 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) )). Instead, the Attorney General is authorized to bring this action in her capacity as a representative of the State through the statutory scheme established by the Michigan Legislature in the MCPA. See Mich. Comp. Laws § 445.910. Where the Attorney General herself does not allege to have purchased any propane from AmeriGas or to otherwise have been harmed by AmeriGas’s alleged unfair business practices, her claims are not "typical" of the proposed class members on whose behalf she brings this lawsuit.

The same is true for adequate representation. The Attorney General brings this...