United States Court of Appeals Fifth Circuit 

## FILED April 6, 2006 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________


### m 06-30088

_______________



### P AMELA 

### B RAUD 

### ; I BRAHIM 

### AUT AMARI 

### ; N ICOLE 

### C ALVIN 

### ; D AVID 

### J ACKSON 

### ; D JUANNA



### K NAPPER 

### ; D ERRYL 

### D UNN 

### , S R 

### .; T ROY 

### LAMBERT 

### , I NDIVIDUALLY AND ON B EHALF OF ALL O THERS S IMILARLY S ITUATED ; 

### Plaintiffs-Appellees,

VERSUS



### T RANSPORT 

### S ERVICE 

### C OMPANY OF 

### I LLINOIS 

### , Defendant-Appellant.

_________________________ Appeal from the United States District Court fo r the Eastern District of Louisiana

_________________________2

Before S MITH , G ARZA , and P RADO , Circuit Judges.

J ERRY E. S MITH , Circuit Judge:
This case presents an issue of fir st impressio n fo r this court: whether amen ding a complaint to add a defendant “c ommences” a new
s uit under the Class Action Fairness Act of 20 05 (“CAFA”), Pub. L. 109-2, 119 Stat. 4.We answer in the affirmative and, for that reason, we reverse the district court’s order of remand, and we remand to th at court f or f urther proceedings..

I. On Augu st 30, 2004, Pam ela Braud and certain other plaint iffs (the “Br aud pl aint iffs”) filed a “Class Action Petition fo r Damages” in state court. On April 8, 2005, the Braud plaintiffs amended their peti

tion to n ame as an addit io nal defendant Ineos Americas, LLC (“Ineos”), which plaint iffs co nt end was the owner and co-shipper of the chemical that allegedly spilled. Ineos was served with the original and supplemental class action petition on April 19, 2005.

On May 19, 2005, Ineos timely removed the action to fe d eral court, basing removal jurisdiction on CAFA. The Braud plaintiffs are citizens of Loui siana, and Ineos is a fo re ign corporation authorized to do business in Loui siana.

On June 17, 2005, the Braud plaint iffs
mo ved to remand to state court, and on July 12, 2005, they filed a purported unopposed mo tion to dismiss Ineos. By o rder entered on December 9, 2005, the district court remanded, finding th at CAFA does not appl y because the Braud plaint iffs had filed their init ial com plaint before CAFA’s effective date, despite the fact th at Ineos was not named as a defendant until aft er the effective date, which is February 18, 2005. Transport Service Com pany of Illino is (“Transport”), pursuant to 28 U.S.C. § 1453(c), filed on December 16, 2 005, a t imely application for leave to appeal, 1 which we granted on January 27, 2006. 2

II. Sec t io n 9 of CAFA provides th at “[t]he
am endm ents made by this Act shall apply to any civil action co mmenced on or after the date o f enactm

ent of this Act.” 119 Stat. at

1 CAFA’s interlocutory app eal provision permits a court of appeals to “accept an appeal from an order of a district court granting or denying a motion to rema nd a class action to the State court from which it was removed if application is made to the cou rt of appeals not less than 7 days after entry of the order.” 28 U.S.C. § 1453(c)(1) (2005 Supp.). This provision creates an exception to the general rule that rema nd orders are not appealable. See Patterson v. Dean Morris, L.L.P. , No. 06- 30215, 2006 U.S. App. LEXIS 7174, at *2-*3 (5th Cir. Mar. 22, 2006).

2 CAFA, in 28 U.S.C . § 1453(c)(2), provides that once we accept an appeal, we must “complete all action . . . not later than 60 days after the date
o n which such appeal was filed, unless an extension is granted under paragraph (3).” Section 1453(c)(3)(B), in turn, allows us to gra nt an extension of the 60-day period for up to 10 days “for good cause shown and in the i nte re sts of justice.” By order of March 7, 2006, we granted plaintiffs’ motion for a 10-day extension of the final disposition date to April 7, 2006.

O ur disposition thus meets CAFA’s requir e
ment of expedited consi d er ation. The period for consideration of an appeal is m easured from the date (January 27) on which we granted the application f or leave to appeal. P

atterson , 2006 U.S. App. LEXIS, at *5-*10. The 70th day after January 27 is April 7.3

14. To determ

ine whether a lawsuit was commenced on or aft er February 18, 2005, the district court relied on Federal Rule of Civil Procedure 3, which, as plaint iffs correctl y point out, read s that “ [a] civil action is commenced by filing a complaint with the court.” Despite the lo gical of th is argument, the courts of appeals th at have examined the issue have unanimo usly held th at when a lawsuit is initially “commenced” for purposes of CAFA is determined by st ate l aw. 3 We agree.

As the court in Bush explained, CAFA broadens diversity jurisdiction fo r certain qualifying class actions and authoriz es their remo val, and thus, “given it s context, CAFA’s ‘commenced’ language surely refers to when the action was originally com menced in state court.” B ush , 425 F.3d at 688. Furthermore, when an action is com

menced in state court is determ ined based on the state’s own rules of procedure. 4 In most states “commencement” occurs eit her when the suit is filed or when the com plaint or summo ns is served, but in Connecticut the action com

mences by service. 5 In Loui siana, a suit is com

mence d by filing of a pleading presenting the demand to a court o f
com petent ju ri sdiction. LA

. C.C.P. art. 421. Therefore, the Braud plaint iffs’ original action com menced on August 30, 2004.

A distinct issue, however, i s whether an amendme nt of the com plaint th rough the addition of a new defendant “commences” a
new suit fo r purposes of CAFA. The defendant s urge us to em

ploy the reasoning of Knudsen I, 411 F.3d at 807, and Schillinger v. Union Pa c. R.R. , 425 F.3d 330 (7th Cir. 2005), to hold th at the post-CAFA amendment of a pre-CAFA com

plaint by adding a new defendant “commences” a new suit. Pl aint iffs respond th at (1) CAFA was not meant to be retroactive; (2) K

nudsen I is inapposite, and any language th at may support appellants’ position is “mere dicta;” (3 ) ev en applying Knudsen I ’s re asoning, no new suit would
com mence here, because the addition of Ineos “related back” to the original complaint; and (4) in any event, Ineos’s dismissal after remo val and before the rul

ing on the motion to remand ousted the court of s ubject matter jurisdiction.

A. Pl aint iffs’ argu ment regarding “retroactivit y” is without m

erit. Although CAFA is meant to apply only to suits “commenced” afte r the effective date, and courts apply a pre3 See Bush v. Cheaptickets, Inc. , 425 F.3d 683, 689 (9th Cir. 2005); Natale v. Pfizer, Inc. , 424 F.3d 43, 44 (1st Cir. 2005); Plubell v. Merck & Co. , 434 F.3d 1070, 1071-72 (8th Cir. 2006); P ritchett v. Office Depot, Inc. , 420 F.3d 1090 (10th Cir. 2005); Knudsen v. Lib e rty Mut. Ins. Co. (“ Knudsen I ”), 411 F.3d 805 (7th Cir. 2005).

4 Pa ce v. DiGuglielmo , 544 U.S. 408 (2005) (looking to state law to dete r mine when a pleading has been “properly filed” for purposes of a federal tim e limit). S ee also Herb v. Pitcairn , 32 4 U.S. 117, 120 (1945) (“Whether any case is pending in the Illinois courts is a question to be determined by Illinois law”); Bush , 425 F.3d at 688 (noting 28 U.S.C. § 1446(b)’s similar reference to “commencement” of a suit and stating that “a federal court must honor state court rules governing commencement of civil actions when an action is first brought in state court and then remov ed to federal court”) (continued...) 4 (...continued)

(quoting Cannon v. Kroger Co. , 837 F.2d 660, 664 (4th Cir. 1988)).

5 See Bush , 425 F.3d at 688, and cases cited therein.4

sumption against the retroactivit y o f a statute
absent a pl ain congressional intent to the contrary , Landgraf v. USI Film Prods., Inc. , 511 U.S. 244, 280 (1994), the i ssue is not whether CAFA should apply to suits “commenced” befo re February 18, 2005, but whether the ad d ition of a new def

endant “com

mences” a new suit. That is, if under the applicable decisional law, Ineos’s addition “commenced” a new suit
on April 8, 2005, the removal would not be retroactive, because the suit would be co nsidered “commenced” on or af ter February 18, 2005.

B. Pl aint iffs’ argument that Knudsen I and the other cases cit ed by defend a nt s are inapposite and provide mere “ dicta ” is also misplaced. Even if the state ment s are d icta , they are persuasive; mo reover, the court in Schillinger explained th at the defendants “correctl y observe th at in general, ‘a defendant added aft er February 18 cou l d remove because suit against it would have been com

menced aft er the effective date[.]’” S chillinger , 425 F.3d at 333 (quoting Schorsch v. Hewlett-Packard Co. , 417 F.3d 748, 749 (7th Cir. 2005)). The S chillinger court noted that this principle was inapplicable to the defendant in th at case because his a d dition to the amended com plaint was a “scrivener’s error.” Id.

C. We agree w i th the Seventh Circuit th at amendments th at add a defendant “commence” the civil action as to the a dded party

. 6 We reach this conclusion based on two considerations, of which only the lat ter has been discussed by that court.
First, the district c ourt’ s remark that “t here’s no specific language in the CAFA legislat io n it self

. . . th at would support th at position th at i f a new party was added [postCAFA to a p re-CAFA case then] CAFA would apply” misses the mark. 7 Precisely because CAFA does not de fine “commencement ” of an action, it is obvious th at CAFA is not int ended to replace caselaw deciding when a lawsuit is considered “commenced” as to a new defendant.
The caselaw holds th at generally “a party brought int o court by an amendment, and who has, for the fir st time, an opportunity to make defense to the action , has a right to treat the proceeding, as to him, as com menced by the process which brings him int o court.” U nited States v. Martinez , 195 U.S. 469, 473 (1904) ((citing Mi ller v. M’Intyre , 31 U.S. 61

6 See Schorsch , 417 F.3d at 749 (noting that “a defendant added after February 18 could remove because suit against it would have been commenced after the effective date”). 7 Further, as expl a ined in Werner v. KPMG LLP , 2006 WL 295394 (S.D. Tex. Feb. 7, 2006), whic h undertook an exhaustive analysis of the caselaw on thi s issue, “most courts examining post-CAFA pleading am

endments in a suit pending pre-CAFA recognize that such am endments can commence a ‘new’ lawsuit and crea te federal removal jurisdiction. Moreover, the court in W eekley
v. Guidant Corp. , 392 F. Supp. 2d 1066 (E.D. Ark. 2005), which held, like the district court in the instant case, that a class action is “comm enced” only once, when the original complaint is filed, has been re jected by impl i cation by the circuit court from that jurisdiction. In P lubell v. Merck & Co. , 434 F.3d 1070 (8th Cir. 2006), the court adopted the re asoning employed by the Seventh Circuit and examined whether the amended pleading related back to the filing of the original complaint. Some authorities (none at the circuit level) support plaintiffs’ position. E.g. , Robb v. Stericycle, Inc. , 2005 WL 2304475 (W.D. La. Aug. 19, 2005).5

(1832)). As the Miller Court explained, this is because it “would be a novel and unjust principle to make the d efendants responsible for a proceeding of which they had no notice.” Miller , 31 U.S. at 64. 8 Therefore, if a defendant w a s added post-CAFA, the suit com
mences post-CAFA as to him.
Second, we agree with the Knudsen I court th at the addition of a new defendant “opens a
new window of removal” under 1446(b). 9 Section 1446(b) indicates th at a case th at was previo usly no n-removable can become removable when a new party is added. As explained in WRIGHT , M ILLER & C OOPER , supra , § 3732 at 311-48, § 1446(b) “supplements the thirty -day removal period described in the fir st paragraph of the provision,” which covers only the period fo r effecting removal to federal court fo llo wing the “receipt or filing” of the initial pleading.
That i s, if an original complaint is not amended, removal m

ust b e determ

ined based only on the law and facts as to removability at the time o f filing o r receipt of the initial pleading und er § 1446(b) ¶ 1. If the complaint is amended, however, § 1446(b) ¶ 2 provides th at the new defendant has a ne w window to remo ve as of the date of receipt of service of the amended complaint: [I]f the case stated by the init ial pleading is not removable, a peti

tion for removal may be filed wit hin thirty days aft er recei pt by the defendant, through service or otherwise , of a copy of an amended pleading,
mo tion, order or other paper from which it may fir st be ascertained th at the case is one which is or has become removable.

28 U.S.C. § 1446(b). Therefore, as to the new defendant, removability is determ ined as of the date of receipt of service of the amended
com plaint , not as of the date on which the original suit was filed in state court.
Furthermore, under CAFA a new defendant may remove regardless of whether it was added more than one year aft er the original complaint was filed in state court. Therefore, the district court incorrectl

y pointed out that the addition of a new party does not com mence a new suit because (as the district court improperly reasoned) Congress “give[s] yo u a specific time period within which yo u must remove or fo rever lo se yo ur right to rem ove wit hout regard to i f you happen to add a party 

### S S if the plaint iff decides to add a party a year and a half from now, yo ur time period doesn’t run again.”
Instead, a new defendant can remove even if the plaint iff decided to add it mo re th an one year aft er the init ial suit . Therefore, there is
no indication th at the time when the init ial suit was filed has any relevance as to when an action “commences” under CAFA fo r an amendment adding a new defendant. Rather, the correct approach is th at used in Adams, Martinez , and Miller , which, because of con cerns regarding notice and limit ations, lo oked at com
mencement as to a new defendant as of the date of service of the amended pleading (or receipt of that pleading under 1446(b)). 8 See also Adams v. Fed. Materials Co. , No. 5:05-CV-90-R, 2005 WL 1862378 (W.D. Ky. July 28, 200 5 ) (relying on, inter alia , Martinez and Miller to hold that adding a defendant after CAFA’s effective date allows that defendant to remove, because the civil action has newly commenced as to it).

9 Knudsen I

, 411 F.3d at 807 (citing 28 U.S.C. § 1446(b) and C HARLES A LAN W RIGHT , ARTHUR R. M I LLER & E DWARD H. C OOPER , 14C F ED ERAL P RA CTICE AND P ROCEDURE § 3732, at 311-48 (3d ed.1998)).6

Thus, alt hough “an amendment of the com
plaint will not revive the period fo r removal if a state court case previously was removable but the defe ndant failed to exercise his right to do so,” a different result generally is reached if the pleading amendment provides (1) a “new basis fo r removal” or (2) “changes the character of the lit igation so as to make it substantially a new suit.” 14C WR IGHT , M ILLER & C OOPER , supra , § 3732 at 311-48. 10

Ineos’s addition “changes the character of the lit igation so as to make it substanti ally a
new suit,” because as we explained, the addition of the new defendant com mences the lawsuit as to it

. This permits removal even absent any discussion of “relation back,” provided, of course, th at the defen dant i s indeed a “new” defendant. 11

This distinction fo r new defendants, as opposed to n ew claims, is a distinction wit hout a difference, because the same result is reached as th ough the relation back test were used: Under federal law, adding a new defendant generally does not relate back to the filing of the original
com plaint unless Federal Rule of Civil Procedure 15(c)(3) applies. 1 2 Also , under

10 An am endment provides a “new basis” for re
moval where, in a previously non-removable case, the only non-diverse defendant is dismissed, or where the amount in controversy is increased so as to exceed the diversity jurisdiction a l threshold. In contrast, the “substantially new suit” analysis looks to whether the am

endment of a previously removable suit ma kes it a substantially new suit so as to
re start the removal window.

11 Knudsen I and the other Seventh Circuit cases do not emplo y any relation-back analysis with respect to the addition of a new defendant. See, e.g., Knudsen I

, 411 F.3d at 808 (“If in the future Liber ty Mutual Fire Insurance Company should be added as a def

endant, it could enjoy a right to remove under the 2005 Act, for suit against it would have been commenced after February 18, 2005.”) 12 Werner , 2006 WL 295394, at *10 & n.14. In its text, rule 15(c)(3) appears to refer only to the changing or substitution of defendants, not to the addition of new defendants without any substitution of the old ones. The Advisory Committee Notes
ma ke plain, however, that a case involving misnomer of a defendant is an exception to the more general rule that the addition of a new defendant commences a new proceeding:

R elation back is intimately connected with the policy of the statute of limitations. The policy of the statute limiting the time for suit against the Secretary of HEW would not have been offended by allowing re lation back in the situations described above. For the government was put on notice of the claim within the stated p er iod SS in the particular instances, by mea ns of the initial delivery of process to a re sponsible government official (see Rule 4(d)(4) and (5)). In these circumstances, characterization of the
am endment as a new proceeding is not responsive to the re alty [ sic ], but is mer ely question-begging; and to deny relation back is to defeat unjustly the claimant’s opportunity to prove his case. Advisory Committee Notes to F ED

. R. C IV

. P. 15.
Furthermore, because as the Notes ma ke plain,
relation back is intimately connected with the statute of limitations, it is apparent that the addition of
a new defendant suffers from the same notice/limitations problems as does the substitution of a defendant. Therefore, only the addition of a defendant that satisfies the notice criteria in rule 15(c)(3) relates back to the original complaint. S ee also Godfrey v. E. Gas & Fuel Assocs , 71 F. Supp. 175 (D. Mass. 1947) ( “Ho wever, if the effect of the amendment was to bring into the case a new party defendant that was not served with a (continued...)7

Loui siana law the addition of a new defendant does not relate back to the original complaint unless a misno mer sit uation as described in rule 15(c)(3) applies. 13 Alt hough plaint iffs argue th at Ineos’s addition related back to the original complaint because it arose out of the same transaction or occurrence, this assertion is, at best, careless. Even if the “misno mer” exception described in Ray , 434 So. 2d at 1087 (or the identical rule 15(c)(3)) were to apply, p l aint iffs discussed only the same-t ransaction-or-occurrence prong fo r relation back. 14 Both federal and Louisiana 12 (...continued)
summons or c omplained against in the original action, the am

endment will not relate back to the time of the original complaint . . . .”); R oyal Worcester Corset v. White , 40 F. Supp. 267 (D. Mass. 1941) (sam

e); W illiams v. Pa. R.R., 91 F. Supp. 652 (D. Del. 1950) (“If the am endment is granted and its effect is mer ely to correct a misnomer, there is no doubt that the am

endment would relate back in time to the date of the original complaint. But if its effect is to ma ke a new party to the suit, the
am endment would not relate back

. . . .”); Messelt v. Sec. Storage Co. , 14 F.R.D. 507 (D.C. Del. 1953); S chram v. Poole , 97 F.2d 566 (9th Cir. 1938); Davis v. L.L. Cohen & Co. , 268 U.S. 638 (1925); United Sta tes v. Martinez , 195 U.S. 469, 473 (1904) (explaining that the general rule for statute of limitations purposes is that “a party brought into court by an am

endment, and who has, for the first time, an opportunity to ma ke defense to the action, has a right to treat the proceeding, as to him, as commenced by the process whi c h brings him into court”). Rule 15(c)(3) allows relation back of a
c hange of a party only where (i) “the claim or defense asserted in the amended pleading arose out of conduct, transa ction, or occurrence set forth or attempted to be set forth i n the original pleading;” (ii) the party to be brought in “has received such notice of the institution of the action that the party will not be prejudiced in ma intaining a defense on the mer its;” (iii) the party to be brought in “knew or should have known that, bu t for a mistake concerning the identity of the proper party, the action would have been brought against the party;” and (iv) the requirements in (ii) and (iii) were met within the applicable statutory limitations period.

13 See Ray v. Alexandria Mall , 434 So. 2d 1083, 1087 (La. 1983) (noting that Louisiana procedural law with re spect to relation back is m odeled after (continued...) 13 (...continued)

the federal rule and that relation back does not “apply where the a mendment seeks to add new and unrelated defendants, since this would be tantamount to assertion of a new cause of action”). Louisiana law nonetheless allows relation back for
a misnomer case, under the sam e circumstances as those under rule 15(c)(3): (1) The am

ended claim must arise out of the
sam e transaction or occurrence set forth in the original petition; (2) The purported substitute defenda nt must have received notice of the institution of the action such that he will not be prejudiced in ma intaining a defense on the mer
its; (3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; (4) The purported substitute defendant must not be a wholly new or unrelated defendant, since thi s would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

Id.

14 It is less certain whether state law provides the applicable rules for the relation back analysis. Compare Schillinger, 425 F.3d at 335 (noting that CAFA ma y ma ke state rules about statutes of limitation irrelevant to the type of commencement that is necessary for federal removal and expressly deferring re solution of the issue) with Schorsch , 417 (continued...)8

procedural law also require, amo ng other things, th at the new defendant “knew or should have known that, but fo r a mist ake concerning the identity of the proper party , the action would have been brought against the party .” 1 5

There is n o i ndication that Ineos had that knowledge. Accordingly, the addition of Ineos does not relate back to the original com plaint , because Ineos was an additional defendant, not a misnamed defendant. 16

D. We reject plaintiffs’ contention th at Ineos’s dismissal aft er removal ousted the district court of subject mat ter jurisdiction. Under Louisiana law, the Braud plaint iffs com menced their suit against Ineos several mo nt hs aft er the effective date of CAFA. Because the amended pleading sati sfied CAFA’s jurisdictional p rovi sio ns, at th at point the federal court had jurisdiction under 28 U.S.C. § 1332, as amended by CAFA. We agree with the court in Dinkel v. General Motors Corp. , 400 F. Supp. 2d 289, 294 (D. M e. 2005), that it i s the “action,” not claims against part i cular defendants, th at is removable, so the subsequent dismissal of the removing defendant cannot render the entire lawsuit improperly removed.
The lan guage of CAFA is plain t hat any single defendant can remove (with out the consent of other defendants) the entire class action (not merely the claims against th at defendant): “A class action may be removed to a district court of the United States . . . without regard to whether any defendant is a cit izen of the State in which t he action is brought, except th at such action may be removed by any defendant wit hout the c onsent of all defendants.” 28 U.S.C. § 1453(b). Further, as the Senate Report on CAFA notes,

T he l aw is clear that, once a federal court properl y has jur isdiction over a case remo ved to federal court, subsequent events generally cannot “o ust” the federal court of jurisdiction. While plaint iffs undoubtedly possess som

e power to seek to avoid federal jurisdiction by defining a proposed class in part icular way s, they lose that power
once a defendant has properl y removed a class action to federal court.
Id. (citing J udici ary Com mit tee Report on Class Action Fairness Act, S. Rep. No. 109-14 (1st S ess. 2005), reprinted in 2005 U.S.C.C.A.N. 3, 2005 WL 627977, at *43). A federal court nonetheless may properly remand if the amendment d ismissing the remo ving defendant was made fo r legit imat e purposes, provide d, of course, that CAFA’s 14 (...continued) F.3d at 749 (holding that relation back with re spect to the addition of a new claim is to be decided under state law). The result in this case is the same under either of those opinions, however.

15 The four-prong federal and Louisiana tests for
relation back are identical. S ee supra notes 11 and 12.

16 This conclusion is limited to the addition of
new defendants. We do not decide when or whether the addition of new claims to a pr e-CAFA case provides a new removal window. S ee Knudsen v. Liberty Mut. Ins. Co. (“ Knudsen II ”), 435 F.3d 755 (7th Cir. 2006) (holding that the post-CAFA change in claims am

ounted to a substantially new suit and tha t there was no relation back because the old pleading did not furnish defendants with notice that plaintiffs contested any decision ma de by its associates/subsidiaries, which used a different adjustment system).9

minimal diversity requirement is not satisfied aft er the dismis sal of the removing defendant. As the Schillinger court expl ained, When a plaintiff amends his complaint after removal in a way th at destroy s diversity, a district court must c onsider the reasons behind the amendment in determining whether remand is proper. If the plaintiff amended simply to destroy diversity, the district court sh ould not remand. See 14B C HARLES ALAN WRIGHT , ARTHU R R

. M IL

LER , & E DWARD H. C OOPER , FEDERAL P R ACTICE AND P ROCEDURE (1998 and Supp.), § 3723, at p. 591 (citing district court cases). But an amendment t hat i s made fo r legit imat e purposes may be a proper ground for a remand to state court. Schillinger , 425 F.3d at 334. Absent the proff er of any reason fo r Ineos’s dismissal, it appears th at i

ts di smissal was int ended solely to destroy diversity, so there is no justification fo r remand. Dismissal is inappropriate for the furth er reason that there is still minimal diversity 

### SS the plaint iffs are cit izens of Loui siana, and Transport is a fo reign corporation authorized to do business in Louisiana. 17

The remand order of t he district court i s REVERSED, and this mat ter i s REMANDED to the district court fo r further proc eedings. The mandate shall issue forthwith.

17 The Braud plaintiffs argued before the district court that the exception to CAFA in 28 U.S.C. § 1332(d)(4)(A) applies. Because they do not raise this argument in their briefs on appeal, it is waived.