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

_______________

PAMELA BRAUD; IBRAHIM AUTAMARI; NICOLE CALVIN; DAVID JACKSON; DJUANNA

KNAPPER; DERRYL DUNN, SR.; TROY LAMBERT,

INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;

Plaintiffs-Appellees,

VERSUS

TRANSPORT SERVICE COMPANY OF ILLINOIS,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________
2

Before SMITH, GARZA, and PRADO, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This case presents an issue of first impression for this court: whether amending a complaint to add a defendant “commences” a new

suit under the Class Action Fairness Act of

2005 (“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 that court for further

proceedings..

I.

On August 30, 2004, Pamela Braud and

certain other plaintiffs (the “Braud plaintiffs”)

filed a “Class Action Petition for Damages” in

state court. On April 8, 2005, the Braud plaintiffs amended their petition to name as an additional defendant Ineos Americas, LLC (“Ineos”), which plaintiffs contend 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, Ineostimely removed the

action to federal court, basing removal jurisdiction on CAFA. The Braud plaintiffs are citizens of Louisiana, and Ineos is a foreign corporationauthorized to do businessinLouisiana.

On June 17, 2005, the Braud plaintiffs

moved to remand to state court, and on July 12,

2005, they filed a purported unopposed motion

to dismiss Ineos. By order entered on December 9, 2005, the district court remanded, finding

that CAFA does not apply because the Braud

plaintiffs had filed their initial complaint before

CAFA’s effective date, despite the fact that Ineos was not named as a defendant until after the

effective date, which is February 18, 2005.

Transport Service Company of Illinois

(“Transport”), pursuant to 28 U.S.C.

§ 1453(c), filed on December 16, 2005, a

timely application for leave to appeal,1 which

we granted on January 27, 2006.2

II.

Section 9 of CAFA provides that “[t]he

amendments made by this Act shall apply to

any civil action commenced on or after the

date of enactment of this Act.” 119 Stat. at

1 CAFA’s interlocutory appeal provision permits a court of appeals to “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) (2005

Supp.). This provision creates an exception to the

general rule that remand 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

on which such appeal was filed, unless an extension is granted under paragraph (3).” Section

1453(c)(3)(B), in turn, allows us to grant an extension of the 60-day period for up to 10 days “for

good cause shown and in the interests 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. 

Our disposition thus meets CAFA’s requirement of expedited consideration. The period for

consideration of an appeal is measured from the

date (January 27) on which we granted the application for leave to appeal. Patterson, 2006 U.S.

App. LEXIS, at *5-*10. The 70th day after January 27 is April 7.
3

14. To determine whether a lawsuit was commenced on or after February 18, 2005, the district court relied on Federal Rule of Civil Procedure 3, which, as plaintiffs correctly point

out, reads that “[a] civil action is commenced

by filing a complaint with the court.” Despite

the logical of this argument, the courts of appeals that have examined the issue have unanimously held that when a lawsuit is initially

“commenced” for purposes of CAFA is determined by state law.3 We agree. 

As the court in Bush explained, CAFA

broadens diversity jurisdiction for certain qualifying class actions and authorizes their removal, and thus, “given its context, CAFA’s

‘commenced’ language surely refers to when

the action was originally commenced in state

court.” Bush, 425 F.3d at 688. Furthermore,

when an action is commenced in state court is

determined based on the state’s own rules of

procedure.4In most states “commencement”

occurs either when the suit isfiled or when the

complaint or summons is served, but in Connecticut the action commences by service.5

In

Louisiana, a suit is commenced by filing of a

pleading presenting the demand to a court of

competent jurisdiction. LA. C.C.P. art. 421.

Therefore, the Braud plaintiffs’ original action

commenced on August 30, 2004.

A distinct issue, however, is whether an

amendment of the complaint through the

addition of a new defendant “commences” a

new suit for purposes of CAFA. The defendants urge us to employ the reasoning of

Knudsen I, 411 F.3d at 807, and Schillinger v.

Union Pac. R.R., 425 F.3d 330 (7th Cir.

2005), to hold that the post-CAFAamendment

of a pre-CAFA complaint by adding a new

defendant “commences” a new suit. Plaintiffs

respond that (1) CAFA was not meant to be

retroactive; (2) Knudsen I is inapposite, and

any language that may support appellants’

position is “mere dicta;” (3) even applying

Knudsen I’s reasoning, no new suit would

commence here, because the addition of Ineos

“related back” to the original complaint; and

(4) in any event, Ineos’s dismissal after removal and before the ruling on the motion to

remand ousted the court of subject matter

jurisdiction. 

A.

Plaintiffs’ argument regarding “retroactivity” is without merit. Although CAFA is

meant to apply only to suits “commenced” after 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); Pritchett v.

Office Depot, Inc., 420 F.3d 1090 (10thCir. 2005);

Knudsen v. Liberty Mut. Ins. Co. (“Knudsen I”),

411 F.3d 805 (7th Cir. 2005). 

4 Pace v. DiGuglielmo, 544 U.S. 408 (2005)

(looking to state law to determine when a pleading

has been “properly filed” for purposes of a federal

time limit). See also Herb v. Pitcairn, 324 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 removed 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 retroactivity of a statute

absent a plain congressional intent to the contrary, Landgraf v. USI Film Prods., Inc., 511

U.S. 244, 280 (1994), the issue is not whether

CAFA should apply to suits “commenced” before February 18, 2005, but whether the addition of a new defendant “commences” 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 considered “commenced” on or after February 18,

2005.

B.

Plaintiffs’ argument that Knudsen I and the

other cases cited by defendants are inapposite

and provide mere “dicta” is also misplaced.

Even if the statements are dicta, they are persuasive; moreover, the court in Schillinger explained that the defendants “correctly observe

that in general, ‘a defendant added after February 18 could remove because suit against it

would have been commenced after the effective

date[.]’” Schillinger, 425 F.3d at 333 (quoting

Schorsch v. Hewlett-Packard Co., 417 F.3d

748, 749 (7th Cir. 2005)). The Schillinger

court noted that this principle was inapplicable

to the defendant in that case because his addition to the amended complaint was a “scrivener’s error.” Id. 

C.

We agree with the Seventh Circuit that

amendmentsthat add a defendant “commence”

the civil action as to the added party.

6 We

reach this conclusion based on two considerations, of which only the latter has been discussed by that court. 

First, the district court’s remark that

“there’s no specific language in the CAFA

legislation itself . . . that would support that

position that if a new party was added [postCAFA to a pre-CAFA case then] CAFA

would apply” misses the mark.7 Precisely

because CAFA does not define “commencement” of an action, it is obvious that CAFA is

not intended to replace caselaw deciding

when a lawsuit is considered “commenced” as

to a new defendant. 

The caselaw holds that generally “a party

brought into court by an amendment, and who

has, for the first time, an opportunity to make

defense to the action, has a right to treat the

proceeding, as to him, as commenced by the

process which brings him into court.” United

States v. Martinez, 195 U.S. 469, 473 (1904)

((citing Miller 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 explained in Werner v. KPMG

LLP, 2006 WL 295394 (S.D. Tex. Feb. 7, 2006),

which undertook an exhaustive analysis of the

caselaw on this issue, “most courts examining

post-CAFA pleading amendmentsin a suit pending

pre-CAFA recognize that such amendments can

commence a ‘new’ lawsuit and create federal removaljurisdiction. Moreover, the court in Weekley

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 “commenced”

only once, when the original complaint is filed, has

been rejected by implication by the circuit court

from that jurisdiction. In Plubell v. Merck & Co.,

434 F.3d 1070 (8th Cir. 2006), the court adopted

the reasoning 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 defendants responsible for a

proceeding of which they had no notice.”

Miller, 31 U.S. at 64.8 Therefore, if a defendant was added post-CAFA, the suit commences post-CAFA as to him. 

Second, we agree with the Knudsen I court

that the addition of a new defendant “opens a

new window of removal” under 1446(b).9 Section 1446(b) indicates that a case that was previously non-removable can become removable

when a new party is added. As explained in

WRIGHT, MILLER & COOPER, supra, § 3732 at

311-48, § 1446(b) “supplements the thirty-day

removal period described in the first paragraph

of the provision,” which covers only the period

for effecting removal to federal court following

the “receipt or filing” of the initial pleading. 

That is, if an original complaint is not

amended, removal must be determined based

only on the law and facts as to removability at

the time of filing or receipt of the initial pleading under § 1446(b) ¶ 1. If the complaint is

amended, however, § 1446(b) ¶ 2 providesthat

the new defendant has a new window to remove as of the date of receipt of service of the

amended complaint:

[I]f the case stated by the initial pleading is

not removable, a petition for removal may

be filed within thirty days after receipt by

the defendant, through service or otherwise, of a copy of an amended pleading,

motion, order or other paper from which it

may first be ascertained that the case is one

which is or has become removable.

28 U.S.C. § 1446(b). Therefore, as to the new

defendant, removabilityis determined as ofthe

date of receipt of service of the amended

complaint, not as of the date on which the

original suit was filed in state court. 

Furthermore, underCAFAa newdefendant

may remove regardless of whether it was added more than one year after the original complaint was filed in state court. Therefore, the

district court incorrectly pointed out that the

addition of a new party does not commence a

new suit because (asthe district court improperlyreasoned)Congress “give[s] you a specific

time period within which you must remove or

forever lose your right to remove without regard to if you happen to add a partySSif the

plaintiff decides to add a party a year and a

half from now, your time period doesn’t run

again.” 

Instead, a new defendant can remove even

if the plaintiff decided to add it more than one

year after the initial suit. Therefore, there is

no indication that the time when the initialsuit

was filed has any relevance as to when an action “commences” under CAFA for an amendment adding a new defendant. Rather, the correct approach isthat used in Adams, Martinez,

and Miller, which, because of concerns regarding notice and limitations, looked at commencement 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, 2005) (relying on, inter alia, Martinez and

Millerto 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) andCHARLESALANWRIGHT,ARTHURR.

MILLER & EDWARD H. COOPER, 14C FEDERAL

PRACTICE AND PROCEDURE § 3732, at 311-48 (3d

ed.1998)).
6

Thus, although “an amendment of the complaint will not revive the period for removal if a

state court case previously was removable but

the defendant failed to exercise his right to do

so,” a different result generally is reached if the

pleading amendment provides (1) a “new basis

for removal” or (2) “changes the character of

the litigation so as to make it substantially a

new suit.” 14C WRIGHT, MILLER & COOPER,

supra, § 3732 at 311-48.10

Ineos’s addition “changes the character of

the litigation so as to make it substantially a

new suit,” because as we explained, the addition of the new defendant commences the lawsuit as to it. This permits removal even absent

any discussion of “relation back,” provided, of

course, that the defendant is indeed a “new”

defendant.11

This distinction for new defendants, as opposed to new claims, is a distinction without a

difference, because the same result isreached as

though the relation back test were used: Under

federal law, adding a new defendant generally

does not relate back to the filing ofthe original

complaint unless Federal Rule of Civil Procedure 15(c)(3) applies.12 Also, under

10 An amendment provides a “new basis” for removal 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 jurisdictional threshold. In

contrast, the “substantially new suit” analysis looks

to whether the amendment of a previously removable suit makes it a substantially new suit so as to

restart the removal window. 

11 Knudsen I and the other Seventh Circuit cases

do not employ 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 Liberty Mutual Fire Insurance Company should be

added as a defendant, 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

make 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:

Relation 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 relation back in the situations described above. For the government

was put on notice of the claim within the stated

periodSSin theparticularinstances, bymeans of

the initial delivery of process to a responsible

government official (see Rule 4(d)(4) and (5)).

In these circumstances, characterization of the

amendment as a new proceeding is not responsive to the realty [sic], but is merely question-begging; and to deny relation back is to defeat unjustly the claimant’s opportunity to

prove his case.

Advisory Committee Notes to FED. R. CIV. P. 15.

Furthermore, because as the Notes make 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 doesthe 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. See

also Godfrey v. E. Gas & Fuel Assocs, 71 F.

Supp. 175 (D. Mass. 1947) (“However, if the effect of the amendment was to bring into the case a

new party defendant that was not served with a

(continued...)
7

Louisiana law the addition of a new defendant

does not relate back to the original complaint

unless a misnomer situation as described in rule

15(c)(3) applies.13

Although plaintiffs argue that 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 ifthe “misnomer” exception described in

Ray, 434 So. 2d at 1087 (or the identical rule

15(c)(3)) were to apply, plaintiffs discussed

only the same-transaction-or-occurrence prong

for relation back.14 Both federal and Louisiana

12(...continued)

summons or complained against in the original

action, the amendment will not relate back to the

time of the original complaint . . . .”); Royal Worcester Corset v. White, 40 F. Supp. 267 (D. Mass.

1941) (same); Williams v. Pa. R.R., 91 F. Supp.

652 (D. Del. 1950) (“If the amendment is granted

and its effect is merely to correct a misnomer, there

is no doubt that the amendment would relate back in

time to the date of the original complaint. But if its

effect is to make a new party to the suit, the

amendment would not relate back . . . .”); Messelt v.

Sec. Storage Co., 14 F.R.D. 507 (D.C. Del. 1953);

Schram v. Poole, 97 F.2d 566 (9th Cir. 1938);

Davis v. L.L. Cohen & Co., 268 U.S. 638 (1925);

United States 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 amendment, and who has, for the first

time, an opportunity to make defense to the action,

has a right to treat the proceeding, as to him, as

commenced by the process which brings him into

court”). Rule 15(c)(3) allows relation back of a

change of a party only where (i) “the claim or

defense asserted in the amended pleading arose out

of conduct, transaction, or occurrence set forth or

attempted to be set forth in 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 maintaining a defense on

the merits;” (iii) the party to be brought in “knew or

should have known that, but 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 respect to relation back is modeled after

(continued...)

13(...continued)

the federal rule and that relation back does not “apply where the amendment 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 same circumstances as

those under rule 15(c)(3): 

(1) The amended claim must arise out of the

same transaction or occurrence set forth in the

original petition; (2) The purported substitute

defendant must have received notice of the institution of the action such that he will not be

prejudiced in maintaining a defense on the merits; (3) Thepurported 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 this 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 may make state rules about statutes of limitation irrelevant to the type of commencement that

is necessary for federal removal and expressly deferring resolution of the issue) with Schorsch, 417

(continued...)
8

procedural law also require, among other

things, that the new defendant “knew or should

have known that, but for a mistake concerning

the identity of the proper party, the action

would have been brought against the party.”15

There is no indication that Ineos had that

knowledge. Accordingly, the addition of Ineos

does not relate back to the original complaint,

because Ineos was an additional defendant, not

a misnamed defendant.16

D.

We reject plaintiffs’ contention that Ineos’s

dismissal after removal ousted the district court

ofsubject matter jurisdiction. Under Louisiana

law, the Braud plaintiffs commenced their suit

against Ineos several months after the effective

date of CAFA. Because the amended pleading

satisfied CAFA’s jurisdictional provisions, at

that 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.

Me. 2005), that it is the “action,” not claims

against particular defendants, that is removable,so the subsequent dismissal ofthe removing defendant cannot render the entire lawsuit

improperly removed.

The language of CAFA is plain that any

single defendant can remove (without the consent of other defendants) the entire class action

(not merely the claims against that defendant):

“A class action may be removed to a district

court of the United States . . . without regard

to whether any defendant is a citizen of the

State in which the action is brought, except

that such action may be removed by any

defendant without the consent of all defendants.” 28 U.S.C. § 1453(b). Further, as the

Senate Report on CAFA notes,

The law is clear that, once a federal court

properly has jurisdiction over a case removed to federal court, subsequent events

generally cannot “oust” the federal court of

jurisdiction. While plaintiffs undoubtedly

possesssome power to seek to avoid federal jurisdiction by defining a proposed class

in particular ways, they lose that power

once a defendant has properly removed a

class action to federal court.

Id. (citing Judiciary Committee Report on

Class Action Fairness Act, S. Rep. No. 109-14

(1st Sess. 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 dismissing the removing defendant was made for legitimate

purposes, provided, of course, that CAFA’s

14(...continued)

F.3d at 749 (holding that relation back with respect

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. See 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 pre-CAFA case

provides a new removal window. See Knudsen v.

Liberty Mut. Ins. Co. (“Knudsen II”), 435 F.3d 755

(7thCir. 2006) (holding that the post-CAFA change

in claims amounted to a substantially new suit and

that there was no relation back because the old

pleading did not furnish defendants with notice that

plaintiffs contested any decision made by its associates/subsidiaries, which used a different adjustment

system).
9

minimal diversity requirement is not satisfied

after the dismissal of the removing defendant.

As the Schillinger court explained,

When a plaintiff amends his complaint after

removal in a way that destroys diversity, a

district court must consider the reasons

behind the amendment in determining

whether remand is proper. If the plaintiff

amended simply to destroydiversity, the district court should not remand. See 14B

CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL

PRACTICE AND PROCEDURE (1998 and

Supp.), § 3723, at p. 591 (citing district

court cases). But an amendment that is

made for legitimate purposes may be a proper ground for a remand to state court.

Schillinger, 425 F.3d at 334. Absent the proffer of any reason for Ineos’s dismissal, it appears that its dismissal was intended solely to

destroy diversity, so there is no justification for

remand. Dismissal is inappropriate for the further reason that there is still minimal diversitySSthe plaintiffs are citizens of Louisiana, and

Transport is a foreigncorporationauthorized to

do business in Louisiana.17

The remand order of the district court is

REVERSED, and this matter is REMANDED

to the district court for further proceedings.

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.