DARRYL A. VACHON v. TRAVELERS HOME AND MARINE INSURANCE COMPANY
No. 20-12765
United States Court of Appeals for the Eleventh Circuit
December 14, 2021
[PUBLISH]
Before WILLIAM PRYOR, Chief Judge, LAGOA, Circuit Judge, and WATKINS, District Judge.
Appeal from the United States District Court for the Middle District of Florida
D.C. Docket No. 8:20-cv-01201-TPB-SPF
Opinion of the Court
WILLIAM PRYOR, Chief
This appeal requires us to decide whether we have appellate jurisdiction over an order that remanded a case to state court because of an untimely notice of removal. Because federal law bars us from reviewing orders remanding cases based on a defect in removal,
I. BACKGROUND
Darryl Vachon, a citizen of Florida, was involved in a car accident in 2011. After the other driver‘s insurance did not cover all of Vachon‘s damages, Vachon sought to recover the balance from Travelers Home and Marine Insurance Company, his provider of “uninsured/underinsured” insurance coverage. Travelers refused to pay.
In March 2013, Vachon sued Travelers in a Florida court. Travelers, a citizen of Connecticut, could not remove the action to federal court because Travelers‘s “maximum coverage exposure under the . . . policy it issued was $25,000,” which is below the minimum amount in controversy necessary to invoke diversity jurisdiction.
original [diversity] jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000[.]“).
At trial in January 2020, the jury determined that Vachon had incurred $1,022,780 in damages, and the state court awarded Vachon $25,000, the policy maximum. See Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So. 2d 239, 242 (Fla. Dist. Ct. App. 2008) (“[W]hen no dispute exists as to the policy limits . . . , the trial court should . . . grant an insurer‘s motion to limit the judgment to the policy limits.“). Under Florida law, a plaintiff who recovers from his insurance company in an underinsurance suit may bring a claim against the company for “[n]ot attempting in good faith to settle [the original underinsurance] claim[.]”
In its final judgment, the state court “reserve[d] jurisdiction to determine the Plaintiff‘s right to amend his Complaint to seek and litigate bad faith damages from the Defendant as
In April 2020, Vachon moved to amend his complaint to add a bad faith claim. Travelers argued that the court should require Vachon to file a separate lawsuit to recover additional damages because the company could “los[e] the opportunity to pursue removal” to federal court if Vachon was permitted to amend hiscomplaint. The state court granted Vachon‘s motion on April 27. The same day, Vachon filed an amended complaint containing a new claim for “[s]tatutory [b]ad [f]aith,” and seeking “the total damages suffered by [Vachon].” Because the value of the action now “exceed[ed] the sum or value of $75,000,” Travelers removed the lawsuit to federal court on May 26, 2020, based on diversity jurisdiction.
Vachon moved to remand on the ground that removal was untimely because Travelers had not filed its notice of removal within “1 year after commencement of the action” in March 2013.
The district court granted the motion to remand because “[section] 1446 as drafted” required it to treat the one-year removal period as having run from the date Vachon filed his first complaint in 2013. Travelers timely appealed, and we requested additional briefing about our jurisdiction.
II. STANDARD OF REVIEW
“We review our appellate jurisdiction de novo.” Overlook Gardens Props., LLC v. ORIX USA, L.P., 927 F.3d 1194, 1198 (11th Cir. 2019).
III. DISCUSSION
Travelers argues that it timely removed the case from state court, but we lack jurisdiction to consider that issue in this appeal. “[T]he existence of appellate jurisdiction in a specific federal court over a given type of case is dependent upon authority expressly conferred by statute.” Carroll v. United States, 354 U.S. 394, 399 (1957). Ordinarily, courts of appeals “have jurisdiction of appeals from all final decisions of the district courts.”
Section 1447(d) deprives us of jurisdiction over this appeal. It provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”
All “other remand orders remain appealable.” BP P.L.C., 141 S. Ct. at 1541. “[U]ntimely removal,” the basis of the remand order here, is “precisely the type of removal defect contemplated by [section] 1447(c).” Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 128 (1995). So “[s]ection 1447(d) . . . compels the conclusion” that we lack jurisdiction over the appeal. Id. And because we lack jurisdiction, we may do no more than “announc[e] the fact and dismiss[] the cause.” United States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019) (quoting Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94 (1998)).
Travelers agrees that this Court ordinarily has no jurisdiction to consider an appeal from a remand order, but it argues that we have jurisdiction under the so-called “matter of substantive law” exception to subsection (d). Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1286 (11th Cir. 1999) (internal quotation marks omitted). This judge-made exception permits appellate review of a remand order “that determines the substantive issues of the case in a way that is conclusive because it is unreviewable by the state court.” Id. It is unclear what aspect of “[t]he judicial Power of the United States,”
Travelers contends that the district court determined substantive issues when it “calculat[ed] . . . the one-year removal period based entirely upon an interpretation of Florida law as to whether an amended pleading relates back to the filing date of the original claim,” but the remand order did not mention the Florida relation-back rules. Instead, the district court adopted the “reasoning and analysis” of decisions that interpreted the phrase “commencement of the action” in section 1446. See Hawkinson v. State Farm Mut. Auto. Ins. Co., 325 F. Supp. 3d 1293, 1298 (M.D. Fla. 2018); Fla. Health Scis. Ctr., Inc. v. Gov‘t Emps. Ins. Co., No. 8:17-cv-339-T-36AAS, 2017 WL 3720880, at *6 (M.D. Fla. Aug. 7, 2017). And “there is no reason to believe that the [d]istrict [c]ourt‘s remand was actually based on th[ese] . . . unmentioned” relation-back rules because “it does not appear from the record that [the parties] ever even [addressed]” them in the district court. Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 235 (2007).
Moreover, Travelers has not explained how the findings about the start-date of the removal period will have any effect on the litigation on remand, much less a “conclusive effect upon the state court action.” Aquamar, 179 F.3d at 1286 (emphasis added); cf. Glasser v. Amalgamated Workers Union Loc. 88, 806 F.2d 1539, 1541 (11th Cir. 1986) (concluding that “[t]he appellants’ substantive rights . . . [were] not affected” because the state court on remand “c[ould] proceed to hear the case“). “Because the district court‘s order of remand . . . did not resolve any substantive
We would lack jurisdiction even if the order contained some determination of substantive law because the matter of substantive law exception is inapplicable when “the substantive issue is intrinsic to the district court‘s decision to remand.” Calderon v. Aerovias Nacionales de Colom., 929 F.2d 599, 602 (11th Cir. 1991). Assuming substantive Florida law played a part in the district court‘s calculation of the removal period, any determination about that law “was merely a step towards the conclusion that” the removal was untimely. In re Loudermilch, 158 F.3d 1143, 1146 (11th Cir. 1998). So the substantive issue would have been intrinsic to the decision to remand.
IV. CONCLUSION
We DISMISS the appeal for lack of jurisdiction.
DARRYL A. VACHON v. TRAVELERS HOME AND MARINE INSURANCE COMPANY
No. 20-12765
United States Court of Appeals for the Eleventh Circuit
December 14, 2021
WILLIAM PRYOR, Chief Judge, joined by LAGOA, Circuit Judge, concurring:
Because we lack jurisdiction, we dismiss the appeal without determining whether the district court correctly interpreted the one-year statutory deadline for removal to federal court,
Section 1446 governs the removal of “civil action[s] from a State court” to federal court.
Under the plain meaning of section 1446, Travelers‘s notice of removal was untimely. Cf. United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc) (“In construing a statute we must begin, and often should end as well, with the language of the statute itself.” (internal quotation marks omitted)). In this context, an “action” means “a lawsuit.” Action, OXFORD ENGLISH DICTIONARY (online ed.). So the “commencement of [an] action,”
Travelers argues that “action” is synonymous with “claim” and that Vachon commenced a new action when he advanced his claim of bad faith in 2020, but this argument fails to account for the ordinary meaning of those terms. A “claim” is “[a] demand for money, property, or a legal remedy.” Claim, BLACK‘S LAW DICTIONARY. Because an action may involve more than one such demand, we have explained that “a particular claim” is “a portion of a plaintiff‘s lawsuit,” Perry v. Schumacher Grp. of La., 891 F.3d 954, 958 (11th Cir. 2018) (emphasis omitted), while “an action . . . refers to the whole case,” Corley v. Long-Lewis, Inc., 965 F.3d 1222, 1236 (11th Cir. 2020) (William Pryor, C.J., concurring) (internal quotation marks omitted); see Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1376 (5th Cir. 1980) (concluding that “civil action,”
Section 1446 employs this distinction. For example, subsection (b) refers to an “initial pleading setting forth the claim for relief upon which such action . . . is based.”
Travelers mentions that “a statutory bad faith claim is separate and independent of the [underinsurance] claim” under Florida‘s relation-back rules, but this observation is irrelevant. The degree of relationship between two claims does not tell us whether those claims were filed as part of the same lawsuit. Nor is the treatment of bad faith claims under the Florida relation-back doctrine material. The doctrine addresses whether an amended complaint may be treated as filed on the date of the original complaint for purposes of state statutes of limitations. See Relation Back, BLACK‘S LAW DICTIONARY. But section 1446 requires us to consider whether “an amended pleading” was filed “more than 1 year after commencement of the action,”
To be sure, some district courts within our Circuit have treated a bad faith claim as its own action for purposes of subsection (c) on the basis “that the bad faith claim is a separate and distinct cause of action” from the underinsurance claim. Johnson v. State Farm Mut. Auto. Ins. Co., No. 6:15-cv-1942-Orl-31TBS, 2016 WL 277768, at *2 (M.D. Fla. Jan. 22, 2016); see, e.g., Thorne v. State Farm Mut. Auto. Ins. Co., No. 8:14-cv-827-T-17AEP, 2015 WL 809530, at *4–6 (M.D. Fla. Feb. 25, 2015); Lahey v. State Farm Mut. Auto. Ins. Co., No. 8:06-cv-1949-T27-TBM, 2007 WL 2029334, at *2 (M.D. Fla. July 11, 2007). These district courts appear to have relied on an earlier version of the removal statute that permitted a defendant to remove the “entire case” “[w]henever a separate and independent claim or cause of action, which would be removable if sued upon alone, [was] joined with one or more otherwise nonremovable claims or causes of action.”
Travelers urges us to depart from the plain meaning of section 1446(c) because its inability to timely remove a bad faith claim“is an absurd result that cannot pass muster.” Courts should not be in the business of rewriting legislation, so we apply the absurdity doctrine “only under rare and exceptional circumstances.” Crooks v. Harrelson, 282 U.S. 55, 60 (1930). That is, we may depart from the literal meaning of an unambiguous statute only where “a rational Congress,” BP P.L.C. v. Mayor of Balt., 141 S. Ct. 1532, 1542 (2021), “could not conceivably have . . . intended” the literal meaning to apply, Logan v. United States, 552 U.S. 23, 36 (2007) (internal quotation marks omitted).
No absurdity results here because the literal meaning of the text “is more than conceivable,” id. at 37 (internal quotation marks omitted)—it is entirely sensible. The ordinary rule that a defendant must file a notice of removal within thirty days of receiving the initial complaint,
To be sure, the one-year deadline “provides plaintiffs with an opportunity and an incentive to . . . prevent removal until the one-year period has passed, thereby defeating defendants’ removal right,” but this “potential negative impact” does not make the outcome absurd. 14 WRIGHT ET AL., supra, § 3731. “Congress may well have accepted [that impact] as the price of a uniform system of federal procedure.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 414 n.13 (2010) (plurality opinion). And even if Congress did not foresee the precise way subsection (c) would make removal difficult for defendants like Travelers, the absurdity doctrine does not give us license to fix “substantive errors arising from a drafter‘s failure to appreciate the effect of certain provisions,” SCALIA & GARNER, READING LAW § 37, at 238. “We are not the final editors of statutes, modifying language when we perceive some oversight.” Tex. Brine Co. v. Am. Arb. Ass‘n, 955 F.3d 482, 486 (5th Cir. 2020). If Travelers is unhappy with section 1446 as it is currently written, “the remedy lies with Congress and not with the courts.” Chung Fook v. White, 264 U.S. 443, 446 (1924).
Moreover, Congress amended section 1446 in 2011 to provide that the one-year deadline does not apply when “the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action,” but Travelers did not rely on—or even mention—this amendment in the district court.
Finally, Travelers argues that a determination that its removal was untimely would “deprive[] [it] of its substantive due process right to remove to federal court,” but no such constitutional right exists. The Constitution leaves “to the wisdom of Congress the creation of lower federal courts.” Haywood v. Drown, 556 U.S. 729, 746 (2009) (Thomas, J., dissenting);
Travelers asserts that federal courts have held that a denial of the “right to remove to federal court” is a “substantial [sic] due process injury,” but the two circuit court decisions on which it relies do not bear out that assertion. In McKinney v. Board of Trustees, the Fourth Circuit interpreted an earlier version of the removal statute. 955 F.2d 924, 925–26 (4th Cir. 1992). At the time, the statute provided that the thirty-day period for filing a notice of removal ran from “receipt by the defendant . . . of a copy of the initialpleading,”
McKinney and Bailey were exercises in statutory interpretation, and neither the Fourth Circuit nor our Court considered removal to be a constitutional right. Neither decision described removal as anything other than a statutory entitlement, and neither decision mentioned procedural due process, much less its morecontroversial substantive counterpart. To the extent Travelers contends that we should consider “policy concerns” and whether a particular interpretation of section 1446 would produce an “inequit[y],” this contention fails for the same reason as Travelers‘s absurdity argument. Unlike the former subsection (b) at issue in McKinney and Bailey, the meaning of the current subsection (c) is clear.
The plain meaning of the statute compels the conclusion that Travelers‘s notice