QUINTEN SPIVEY, individually and on behalf of a class, Plaintiff-Respondent, v. VERTRUE, INCORPORATED, Defendant-Petitioner.
No. 08-8009
United States Court of Appeals For the Seventh Circuit
Submitted May 16, 2008—Decided June 11, 2008
Petition for Leave to Appeal from the United States District Court for the Southern District of Illinois. No. 07-CV-0779-MJR—Michael J. Reagan,
Before EASTERBROOK, Chief Judge, and ROVNER and EVANS, Circuit Judges.
EASTERBROOK, Chief Judge. Quinten Spivey filed suit in state court, seeking to represent a class of persons who do business with Vertrue, a marketer that offers discounts to customers who use its services. Spivey maintains that Vertrue “systematically” submits unauthorized charges. Spivey proposed to represent a class of persons whose credit cards had been charged without authorization through 22 of Vertrue‘s programs.
Vertrue removed the proceeding to federal court under
Section 1453(c)(1) providеs that “a court of appeals may 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.” The petition was timely under this language. April 18 is “not less than 7 days“—in other words, is more than 6 days—after April 8. (Weekends are excluded from 7-day periods by
Spivey‘s argument rests not on the statutory text but on the proposition that the law cannot mean what it says. Someone must have set out to write “not more than 7 days” or “not later than 7 days” or “within 7 days“—because time limits for appeals always set the last date allowed for aсtion, rather than the earliest time to file something—but came up with “not less than 7 days” instead. No one noticed the gaffe (or the misuse of the word “less” when correct diction requires “fewer“) before the statutе was enacted. The garble has attracted considerable attention by both judges and law reviews, but Congress has not enacted a technical-corrections bill.
Pew, Morgan, Laidlaw Transit Services, Pritchett, and Miedema all say that “less” should be read as “more,” because the latter word best fits with the norm in appellate deadlines and the likely goаl of the legislature—to compel prompt action that will resolve with dispatch the question which court will conduct the litigation. Section 1453(c)(2) requires the court of appeals to makes its decision (if it accepts the appeal) “not later than 60 days after the date on which such appeal was filed” unless an extension is granted under another subsection. See Hart v. FedEx Ground Package System, Inc., 457 F.3d 675 (7th Cir. 2006). There‘s not much point in directing the court of appeals to make a swift decision, if the aggrieved party can take forever to appeal—and, if “less” really means “less,” then forever is how much time the party displeased by thе remand can take, as far as §1453(c)(1) is concerned. Congress sometimes enacts cooling-off periods, but §1453(c)(1) lacks the deadline that usually accompanies such a period. See, e.g., Hallstrom v. Tillamook County, 493 U.S. 20 (1989).
That Cоngress has written a deadline imprecisely, or even perversely, is not a sufficient reason to disregard the enacted language. So the Supreme Court held in Dodd v. United States, 545 U.S. 353 (2005), and United States v. Locke, 471 U.S. 84 (1985). See also, e.g., Lamie v. United States Trustee, 540 U.S. 526, 533-39 (2004). Turning “less” into “more” would be a feat more clоsely associated with the mutating commandments on the barn‘s wall in Animal Farm than with sincere interpretation. (Ludwig Mies van der Rohe, the architect who designed the courthouse in which the Seventh Circuit sits, adopted “less is more” as his motto, but this credo of Bauhaus design did no violence to any enacted text.)
To the extent that our colleagues in other circuits hold that a petition filed within seven days of the district court‘s order should be аccepted, rather than thrown out with instructions to submit another once a week has passed, we concur. Whether a petition filed within a week after the remand is timely was the question actually presented in those appeals. An affirmative answer tracks
But to the extent that language in other circuits’ opinions implies that they would deem a petition filed on the eighth day (or, here, the tenth) jurisdictionally and thus irreparably late, we do not concur. Even judges who, like the dissenters in Locke, think that a statute should be construed to prevent litigants from being sаndbagged by misleading language, would not pull the rug out from under a litigant
Vertrue‘s lawyers knew that some courts have read “less” to mean “more“. They tried to avoid the problem by straddling the deadline. They mailed the petition on the seventh day, expecting it to reach the court soon thereafter. Then if we took “less” to mean “less” the petition would be accepted even though it had been mailed on the seventh day; and they submit that if we take “less” to mean “more” then the mailing should suffice. Spivey says that
To the possibility that this gives litigants forever to appeal, and thus interferes with the objective of ascertaining the correct forum as quickly as possible, we say: No way. The open-ended “not less than 7 days” means that there is no terminal date for appeal. And the Federal Rules of Appellate Procedure cover the possibility that some laws or rules allowing interlocutory appeals omit deadlines.
Vertrue calculated the amount in controversy at more than $5 million because its billings, for 4 of the 22 programs in Illinois alone, come to almost $7 million. (An affidavit to that effeсt has been filed in the district court.) The district judge thought this insufficient because Vertrue did not concede that more than $5 million in charges was unauthorized. Yet the statute does not make federal jurisdiction depend on how much the plaintiff is sure to recover. The question is what amount is “in controversy“. See Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005). The complaint alleges that Spivey‘s credit card was charged without authorization and that Vertrue‘s practicеs are “common to all Class Members“. The complaint also alleges that making unauthorized charges is a standard practice at Vertrue. Spivey‘s allegations thus put into
Brill lays out the protocol for removals under the Class Action Fairness Act. The removing party, as the propоnent of federal jurisdiction, bears the burden of describing how the controversy exceeds $5 million. This is a pleading requirement, not a demand for proof. Discovery and trial come later. A removing defendant need not “confess liability in order to show that the controversy exceeds the threshold.” 427 F.3d at 449. “[T]he removing party‘s burden is to show not only what the stakes of the litigation could be, but also what they are given the plaintiff‘s actual demands. . . . The demonstration concerns what the plaintiff is claiming (and thus the amount in controversy between the parties), not whether plaintiff is likely to win or be awarded everything he seeks.” Ibid. (emphasis in original).
Once the proponent of federal jurisdiction hаs explained plausibly how the stakes exceed $5 million, cf. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), then the case belongs in federal court unless it is legally impossible for the plaintiff to recover that much. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938); Normand v. Orkin Exterminating Co., 193 F.3d 908 (7th Cir. 1999); Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955 (7th Cir. 1998). The district judge did not find that recovery of more than $5 million is impossible. Instead the judge said that Vertrue‘s failure to admit what portion of all charges was unauthorized makes it uncertain how high the judgment (if any) will be. Uncertainty differs from impossibility, the standard that St. Paul Mercury Indemnity adоpted for determining whether a litigant‘s estimate of the stakes may be rejected.
We grant Vertrue‘s petition and accept the appeal. Vertrue need not file a notice of appeal but must pay all applicable fees. See
USCA-02-C-0072—6-11-08