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Tuesday, November 21, 2006

When is filing? The Class Action Fairness of 2005 provides that a court of appeal must "complete all action on such appeal [from a district court's grant or denial of a motion to remand], including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted under [28 U.S.C. 1453]." If judgment is not rendered within that period, then the appeal is deemed denied. In DiTolla v. Doral Dental IPA of New York, LLC, the defendant filed a petition for permission to appeal on May 119, 2006, but the petition itself was not granted unitl 66 days later on July 24, 2006. Defendant's brief was filed on August 17, 2006 and on September 21, 2006, the parties stipulated to a 60-day extension. But if the appeal was filed at the time of the appeal, then the 60-day period ended long before the stipulation was executed and the case should have been deemed denied.

The Court raised this issue sua sponte. It decided that the 60-day period begins on the day that the Court grants the petition to appeal is filed. This decision is consistent with the holdings of the Seventh Ninth and Eleventh Circuits on the same issue.

On the issue raised by the plaintiff on appeal, the Court ruled that the party seeking to remove a case to federal court has the burden of showing that the case meets the jurisdictional amount. This case, in which an accounting was sought, the defendant was unable to make that showing. The Court affirmed the decision of the District Court remanding the case to the state court.

The decision can be found here.

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