ANDERSON, Circuit Judge:
Appellants United Defense LP, MeadWestvaco Corporation, Scientific-Atlanta, Inc., and Huron Valley Steel Corporation challenge the district court's decision to remand this case to the Alabama state court. Appellants argue that this case belongs in federal court under the recently-enacted Class Action Fairness Act ("CAFA"), Pub.L. No. 109-2, 119 Stat. 4 (2005) (codified in scattered sections of 28 U.S.C.), and because the plaintiffs fraudulently joined non-diverse defendants in order to evade federal jurisdiction. We hold that the federal district court has jurisdiction over this case under CAFA. We need not reach the issue of fraudulent misjoinder.
On April 8, 2005, plaintiffs filed this case in the Circuit Court of Calhoun County, Alabama, on behalf of a class of people who were allegedly injured by the actions of 18 named defendants and a number of fictitious defendants. The plaintiffs allege that the defendants operated manufacturing facilities in the Anniston, Alabama area. Plaintiffs allege both property damage and personal injury that they attribute to defendants' release of various waste substances over an approximately 85-year period. Four of the defendants removed this case to federal court under CAFA, which expanded federal jurisdiction for class actions. Defendants' Notice of Removal also contained a footnote that stated that defendants believed that plaintiffs may have improperly joined non-diverse defendants.
Plaintiffs filed a motion to remand the case to state court. Plaintiffs' sole argument for remand is that the case fell within CAFA's "local controversy" exception to federal jurisdiction. Plaintiffs argued that their case was a local controversy because more than two-thirds of the plaintiff class were Alabama citizens and at least one Alabama defendant, U.S. Pipe, was a "significant" defendant within the meaning of CAFA. Plaintiffs proffered the affidavits of two of their attorneys to support their claim. The district court agreed that this case fell within CAFA's local controversy exception, and remanded the case to state court.
II. STANDARD OF REVIEW
The district court's decision to remand is reviewed de novo. Brown v.
A. The Sixty-Day Rule
The relevant provisions of CAFA provide:
28 U.S.C. § 1453(c). As a preliminary matter, we must determine whether the 60-day period begins to run from when the appellants filed their application for appeal, or from the date on which this court accepted the appeal. We hold that the 60-day period begins to run from the date when the court of appeals granted the appellants' application to appeal and thus filed the appeal.
Under CAFA, when a district court grants or denies remand to state court, a party may make an "application" for appeal to the court of appeals. 28 U.S.C. § 1453(c)(1). We believe that Congress' choice of language is significant. Section 1453(c)(1) provides for an "application" to the court of appeals, not a "notice of appeal," within 7 days of the district court's remand order. Section 1453(c)(2) provides that the court of appeals shall complete all action 60 days after the date on which the "appeal was filed," not 60 days from the date on which the "application" was filed.
We also find it significant that review by the appeals court is clearly discretionary. See 28 U.S.C. § 1453(c)(1) ("a court of appeals may accept an appeal") (emphasis added). Thus, it is plausible to conclude that Congress contemplated the application of Fed. R.App. P. 5, which governs discretionary appeals. We conclude that a request for appeal under CAFA is subject to Fed. R.App. P. 5, entitled "Appeal by Permission." Rule 5(d)(2) provides: "A notice of appeal need not be filed. The date when the order granting permission to appeal is entered serves as the date of the notice of appeal for calculating time under these rules." Thus, there is no notice of appeal, and no appeal, until the court of appeals accepts the application, whence the appeal is deemed filed.
Accordingly, we hold that the "date on which such appeal was filed" is the date that the court of appeals accepts the appeal,
In this case, the appellants filed their application for appeal on March 24, 2006 and this court granted their application on March 30, 2006. Therefore, this court's ruling is due within 60 days of March 30, 2006.
B. CAFA and the Local Controversy Exception
1. Legal Background
Congress enacted CAFA on February 18, 2005. Under CAFA, federal courts now have original jurisdiction over class actions in which the amount in controversy exceeds $5,000,000 and there is minimal diversity (at least one plaintiff and one defendant are from different states). 28 U.S.C. § 1332(d)(2). CAFA, however, does have an exception to federal jurisdiction for cases that are truly local in nature. 28 U.S.C. § 1332(d)(4)(A).
In this case, the parties do not dispute that the controversy exceeds $5,000,000 and that there is minimal diversity. The issue before us is whether this case falls within CAFA's local controversy exception to federal jurisdiction. CAFA's local controversy exception provides:
28 U.S.C. § 1332(d).
S. Rep. 109-14, at 39, U.S.Code Cong. & Admin. News at 38. The language and structure of CAFA itself indicates that Congress contemplated broad federal court jurisdiction, see e.g., Pub.L. No. 109-2, § 2(b)(2), 119 Stat. 4 ("providing for Federal court consideration of interstate cases of national importance under diversity jurisdiction"), with only narrow exceptions. These notions are fully confirmed in the legislative history.
2. The Burden of Proof
The district court correctly determined that the plaintiffs bear the burden of establishing that they fall within CAFA's local controversy exception. CAFA allows for removal of class actions that meet certain minimal requirements. CAFA does not change the traditional rule that the party seeking to remove the case to federal court bears the burden of establishing federal jurisdiction. See Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir.2005). The parties do not dispute that the defendants have carried this burden and established that this action meets CAFA's basic requirements for removal to federal court — i.e., the controversy exceeds $5,000,000 and at least one plaintiff and one defendant are from different states (the minimal diversity requirement). However, when a party seeks to avail itself of an express statutory exception to federal jurisdiction granted under CAFA, as in this case, we hold that the party seeking remand bears the burden of proof with regard to that exception. Cf. Breuer v. Jim's Concrete of Brevard, Inc., 538 U.S. 691, 697-98, 123 S.Ct. 1882, 1886, 155 L.Ed.2d 923 (2003) (when a defendant removes a case under 28 U.S.C. § 1441(a), the burden is on a plaintiff to find an express exception to removal).
In addition to Breuer, we find support for our decision in Castleberry v. Goldome Credit Corp., 408 F.3d 773 (11th Cir.2005) and Lazuka v. Federal Deposit Insurance Corp., 931 F.2d 1530 (11th Cir.1991). Both cases addressed the removal of actions involving the Federal Deposit Insurance Corporation (FDIC). The courts held that once the FDIC has established the prerequisites for removal under 12 U.S.C. § 1819(b)(2)(B) (i.e., the action was filed against the FDIC, and the FDIC removed the action within 90 days), then the burden of establishing the "state action" exception to federal jurisdiction shifts to the party objecting to removal. Castleberry, 408 F.3d at 785; Lazuka, 931 F.2d at 1538. As in our situation, the removing party bears the initial burden of establishing federal jurisdiction, but the objecting party bears the burden of proving an express statutory exception once federal jurisdiction has been established under the main provisions of the statute. The instant case is very similar, and the instant statute is
No other Circuit appears to have addressed the specific question of which party should bear the burden of proof on CAFA's local controversy exception. Two other Circuits have determined that CAFA does not upset the traditional rule that the removing party bears the burden of proof with regard to establishing federal court jurisdiction. Abrego Abrego v. Dow Chemical Co., 443 F.3d 676 (9th Cir.2006); Brill, 427 F.3d 446. We agree with these courts that CAFA does not change the well-established rule that the removing party bears that burden of proof. However, neither case involved a removing defendant who did satisfy its burden of proving the jurisdictional prerequisites, as the defendants here did when they proved that the amount in controversy exceeded $5,000,000 and that there was the necessary minimal diversity.
Thus, we address as a question of first impression the issue of who bears the burden of proving the local controversy exception, once the removing defendants have proved the amount in controversy and the minimal diversity requirement, and thus have established federal court jurisdiction under § 1332(d)(2). For the reasons set out above, and by analogy to Breuer, 123 S.Ct. at 1886, Castleberry, 408 F.3d at 784-85, and Lazuka, 931 F.2d at 1538, we hold that the plaintiffs bear the burden of proving the local controversy exception to the jurisdiction otherwise established.
We turn next to the merits of the local controversy exception as applied to this case. The parties dispute only two prongs of the local controversy exception: (1) whether more than two-thirds of the plaintiff class members are Alabama citizens; and (2) whether U.S. Pipe is a defendant from whom "significant relief" is sought and whose conduct forms a "significant basis" for the claims asserted by the plaintiffs. We conclude that plaintiffs have failed to prove either prong.
3. Citizenship of Plaintiff Class
To avail themselves of the local controversy exception, the plaintiffs must prove that greater than two-thirds of the proposed class members are Alabama citizens. In this case, the class includes:
The complaint alleges harms from 18 defendants extending over a period of at least 85 years. The district court held that plaintiffs had adduced sufficient evidence that more than two-thirds of the plaintiff class are Alabama citizens. We disagree.
Plaintiffs have offered little proof that Alabama citizens comprise at least two-thirds of the plaintiff class. In order to prove that two-thirds of the plaintiff class are Alabama citizens, the plaintiffs submitted an affidavit by attorney Jennifer Smith.
We are not persuaded by plaintiffs' argument. Smith's affidavit tells us nothing about how she selected the 10,118 people who were considered "potential plaintiffs." We do not know if these 10,118 people represent both the property damage and personal injury classes. We do not know if Smith's method favored people currently living in Anniston over people who have left the area.
In sum, plaintiffs have not carried their burden of demonstrating that more than two-thirds of the plaintiff class are Alabama citizens. We understand that evidence of class citizenship might be difficult to produce in this case. That difficulty, however, is to a considerable degree a function of the composition of the class designed by plaintiffs. The local controversy exception is designed to ensure that state courts hear cases of a truly local nature. We have no way of knowing what percentage of the plaintiff class are Alabama citizens. We conclude that the evidence adduced by the plaintiffs wholly fails to present a credible estimate of the percentage of the plaintiff class who are citizens of Alabama. Accordingly, we hold that Plaintiffs have failed to prove that more than two-thirds of the plaintiff class are Alabama citizens.
4. Significant Defendant Test
We also hold that plaintiffs have failed to prove the "significant defendant" prong of the local controversy exception. In order to avail itself of the local controversy exception, pursuant to § 1332(d)(4)(A), the plaintiffs must prove that:
28 U.S.C. § 1332(d)(4)(A)(i)(II). The district court held that U.S. Pipe, an Alabama corporation, was a significant defendant. We disagree and hold that plaintiffs have failed to prove that U.S. Pipe was a significant defendant as defined by CAFA.
Only a few courts have interpreted the local controversy exception to federal jurisdiction. At least two courts have held that a class seeks "significant relief" against a defendant when the relief sought against that defendant is a significant portion of the entire relief sought by the class. See Robinson v. Cheetah Transportation, 2006 WL 468820 (W.D.La. Feb.27, 2006); Kearns v. Ford Motor Company, 2005 WL 3967998 (C.D.Cal. Nov.21, 2005). As the Robinson court stated:
Robinson, 2006 WL 468820, at *3.
U.S. Pipe operated two metal casting facilities in Anniston during the relevant time period: a foundry located at 2101 W. 10th Street and another foundry at 1831 Front Street. The district court held that the plaintiffs sought significant relief from U.S. Pipe because: (1) the complaint accused all the defendants of contamination in the Anniston area; and (2) U.S. Pipe owned and operated two foundry facilities during a substantial portion of the relevant time period.
Plaintiffs rely on their complaint and an attorney affidavit to establish that U.S. Pipe is a significant defendant. These documents, however, do not provide any enlightenment at all with respect to the significance of the relief that is sought against U.S. Pipe, or its comparative significance relative to the relief sought from the other 17 named co-defendants. In short, there is simply no evidence that U.S. Pipe was "significant" with respect to liability.
With respect to whether the conduct of U.S. Pipe "forms a significant basis" for the plaintiffs' claims, plaintiffs' evidence offers no insight into whether U.S. Pipe played a significant role in the alleged contamination, as opposed to a lesser role, or even a minimal role. The evidence does not indicate that a significant number or percentage of putative class members may have claims against U.S. Pipe, or indeed that any plaintiff has such a claim.
Moreover, the limited facts before this court give rise to an inference that U.S. Pipe is not a significant defendant. The plaintiffs charge that U.S. Pipe has operated two facilities in Anniston: one on West 10th Street and the property at 1831 Front Street. The evidence shows that U.S.
For all the foregoing reasons, we hold that plaintiffs have failed to prove that their case belongs in state court under the local controversy exception to CAFA.
REVERSED and REMANDED.