Case: 20-17377, 01/19/2021, ID: 11968818, DktEntry: 9, Page 1 of 8
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`NO. 20-17377
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`IN THE UNITED STATES COURT OF APPEAL
`FOR THE NINTH CIRCUIT
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`ELIZABETH MAISEL,
`INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SITUATED,
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`Plaintiff-Appellant,
`v.
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`DEFENDANT-APPELLEE TOOTSIE ROLL INDUSTRIES, LLC,
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` Defendant-Appellee
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`ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
`THE NORTHERN DISTRICT OF CALIFORNIA
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`PLAINTIFF-APPELLANT’S RESPONSE TO
`ORDER TO SHOW CAUSE
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`Ryan J. Clarkson (257074)
`Matthew T. Theriault (244037)
`Bahar Sodaify (289730)
`CLARKSON LAW FIRM, P.C.
`9255 Sunset Blvd., Suite 804
`Los Angeles, CA 90069
`Tel. (213) 788-4050
`Fax. (213) 788-4070
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`Attorneys for Plaintiff-Appellant Elizabeth Maisel
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`NO. 20-17377
`
`IN THE UNITED STATES COURT OF APPEAL
`FOR THE NINTH CIRCUIT
`
`ELIZABETH MAISEL,
`INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SITUATED,
`
`Plaintiff-Appellant,
`v.
`
`DEFENDANT-APPELLEE TOOTSIE ROLL INDUSTRIES, LLC,
`
`
`
`
`
`
`
`
`
`
`
`
` Defendant-Appellee
`
`
`
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
`THE NORTHERN DISTRICT OF CALIFORNIA
`
`PLAINTIFF-APPELLANT’S RESPONSE TO
`ORDER TO SHOW CAUSE
`
`Ryan J. Clarkson (257074)
`Matthew T. Theriault (244037)
`Bahar Sodaify (289730)
`CLARKSON LAW FIRM, P.C.
`9255 Sunset Blvd., Suite 804
`Los Angeles, CA 90069
`Tel. (213) 788-4050
`Fax. (213) 788-4070
`
`Attorneys for Plaintiff-Appellant Elizabeth Maisel
`
`
`
`
`
`
`
`
`
`
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`
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`Case: 20-17377, 01/19/2021, ID: 11968818, DktEntry: 9, Page 2 of 8
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`I.
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`Introduction
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`Plaintiff-Appellant Elizabeth Maisel (“Plaintiff-Appellant”) submits this
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`response to the Court’s December 28, 2020 Order to Show Cause (“OSC”), and
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`respectfully requests that the Court discharge the OSC and allow Plaintiff-
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`Appellant’s appeal of United States District Court, Northern District of California,
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`Magistrate Judge Sallie Kim’s November 30, 2020 Order that resulted in the denial
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`of Plaintiff-Appellant’s motion to remand and request for attorneys’ fees.
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`II.
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`Facts
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`Plaintiff-Appellant filed a class action lawsuit in the Superior Court of
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`California, County of Alameda, on May 29, 2020 alleging that Defendant-Appellee
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`Tootsie Roll Industries, LLC (“Defendant-Appellee”) deceptively packaged its
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`opaque theater box Junior Mints and Sugar Babies candy products (the “Products”)
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`in oversized packages containing nonfunctional empty space, or “slack-fill,” in
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`violation of California and federal consumer protection statutes and packaging
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`laws.
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`On July 29, 2020, Defendant-Appellee removed to the Northern District of
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`California, claiming that the amount in controversy meets CAFA’s $5 million
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`threshold because wholesale sales of the Products in California exceed $6 million
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`during the class period. However, Defendant-Appellee falsely claimed Plaintiff
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`was seeking $6 million. Plaintiff-Appellant argued that the amount in controversy
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`2
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`Case: 20-17377, 01/19/2021, ID: 11968818, DktEntry: 9, Page 3 of 8
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`is $1.6 million (or $2.8 million retail), based on a conservative application of a
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`26% price premium, far below the required $5 million to meet CAFA.
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`Accordingly, on August 28, 2020, Plaintiff-Appellant moved to remand, but
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`the court denied Plaintiff-Appellant’s motion because it ignored Plaintiff-
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`Appellant’s damages allegations which only included a partial refund based on a
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`price premia analysis. On December 4, 2020, Plaintiff-Appellant timely filed a
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`notice of appeal the court’s order denying remand and attorneys’ fees. On
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`December 7, the appellate case number was assigned (Dkt. 1). A week later,
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`Plaintiff-Appellant filed her mediation questionnaire (Dkt. 3).
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`On December 28, 2020, the Court issued an order stating that Plaintiff-
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`Appellant failed to comply with Federal Rule of Appellate Procedure (“FRAP”) 5
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`(Dkt. 5).
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`Plaintiff-Appellant submits this response to the Court’s December 28, 2020
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`Order to Show Cause, and respectfully requests that the Court discharge the OSC
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`and allow Plaintiff-Appellant’s appeal to proceed.
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`III. Argument
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`A.
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`Based On The Plain Language Of 28 U.S.C. § 1453, Plaintiff-
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`Appellant’s Appeal Was Proper and Timely
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`When determining the meaning of a statute, courts look to the plain language
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`of the statute. Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (the court’s
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`3
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`Case: 20-17377, 01/19/2021, ID: 11968818, DktEntry: 9, Page 4 of 8
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`analysis begins with the “plain language of the statute.”); K Mart Corp. v. Cartier,
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`486 U.S. 281, 291 (1988) (“In ascertaining the plain meaning of the statute, [a]
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`court must look to the particular statutory language at issue, as well as the language
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`and design of the statute as a whole.”); United States v. Daas, 198 F.3d 1167, 1174
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`(9th Cir. 1999) (“The plain meaning of the statute controls, and courts will look no
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`further, unless its application leads to unreasonable or impracticable results. If the
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`statute is ambiguous -- and only then -- courts may look to its legislative history for
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`evidence of congressional intent.”); E. & J. Gallo Winery v. Cantine Rallo, S.P.A.,
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`430 F. Supp. 2d 1064, 1073-74 (E.D. Cal. 2005). The first step in ascertaining
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`congressional intent is to look to the plain language of the statute. Knapp v.
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`Carmax Auto Superstores Cal., LLC, 2014 U.S. Dist. LEXIS 159722 at *13 (C.D.
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`Cal. 2014); Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1102 (Cal.
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`2007) (When interpreting a statute, courts must first look to its plain language
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`“because [it] generally provide[s] the most reliable indicator of legislative intent.”)
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`The statute governing review of remand orders, 28 U.S.C. § 1453(c), states
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`that “a court of appeals may accept an appeal from an order of a district court
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`granting or denying a motion to remand a class action to the State court from
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`which it was removed if application is made to the court of appeals not more than
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`10 days after entry of the order.” 28 U.S.C. § 1453(c)(1). The plain language of the
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`statute does not contain any language or indication that a plaintiff must first seek
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`4
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`Case: 20-17377, 01/19/2021, ID: 11968818, DktEntry: 9, Page 5 of 8
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`permission from the court pursuant to FRAP 5 before appealing a remand order. In
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`the seminal Ninth Circuit case of Amalgamated Transit Union Local 1309v.
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`Laidlaw Transit Servs. (“Amalgamated”), 435 F.3d 1140, 1143 (9th Cir. 2006), the
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`court acknowledged that, “Neither § 1453(c)(1) nor the rules of appellate
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`procedure specifically state whether we should apply FRAP 5 to the initiation of an
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`appeal under § 1453(c)(1).” See also Murphy, 40 Cal. 4th at 1102; Jimenez, 555
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`U.S. at 118. Accordingly, relying on the plain language of Section 1453, Plaintiff-
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`Appellant properly and timely filed her notice of appeal on December 4, 2020.
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`B.
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`The Court Should Exercise Its Authority Under FRAP 2 To Suspend
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`The Requirements Of FRAP 5 In Order To Avoid Unfairness And
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`Potential Violation Of Due Process
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`Under FRAP 2, the Court is authorized to allow the appeal to proceed for
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`good cause, including, preserving judicial economy, avoiding unfairness, and
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`preventing violation of due process. Fed. R. App. Proc. 2 (“On its own or a party’s
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`motion, a court of appeals may—to expedite its decision or for other good cause—
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`suspend any provision of these rules in a particular case and order proceedings as it
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`directs [.]”); see Blausey v. United States Tr., 552 F.3d 1124, 1130-31 (9th Cir.
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`2009) (exercising discretion under Fed. R. App. Proc. 2 to suspend the
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`requirements of Fed. R. App. Proc. 5 for good cause where Plaintiff filed the notice
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`of appeal); United States v. Henley, 238 F.3d 1111, 1122 (9th Cir. 2001)
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`5
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`Case: 20-17377, 01/19/2021, ID: 11968818, DktEntry: 9, Page 6 of 8
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`(exercising discretion under Fed. R. App. Proc. 2 to allow Plaintiff to proceed with
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`his appeal for reasons of judicial economy).
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` Amalgamated is instructive. In that case, the court was faced with a motion
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`to dismiss an appeal because the plaintiffs had failed to comply with the
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`requirements of FRAP 5. Amalgamated, 435 F.3d at 1143. The plaintiffs did not
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`file a petition to appeal in the Ninth Circuit, pursuant to FRAP 5, but instead filed a
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`notice of appeal in the district court. Id. Only after defendants moved to dismiss
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`the appeal did plaintiffs file the petition in the Ninth Circuit. Id. The court looked
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`to the language of Section 1453 to determine whether FRAP 5 was mentioned and
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`found that the statute did not state that FRAP 5 is required to initiate an appeal
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`under 1453(c)(1). Id. Therefore, “[b]ecause the language of the statute was deemed
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`ambiguous, the court looked to the legislative history to try to discern Congress’
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`intent.” Id. However, the court stated “[t]he record is [] silent on whether Congress
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`specifically intended FRAP 5 to govern the initiation of these discretionary
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`appeals, and there are, in fact, statements that suggest the opposite.” Id. at 1144.
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`Although the court ultimately believed Congress intended FRAP 5 to govern
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`initiation of an appeal under Section 1453, the court decided that in order to avoid
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`the “unfairness and potential due process violation that applying [such] holdings”
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`might raise, it needed to exercise its authority under FRAP 2 to suspend for good
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`cause the requirements of FRAP 5, and thus construed plaintiffs’ timely notice of
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`6
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`Case: 20-17377, 01/19/2021, ID: 11968818, DktEntry: 9, Page 7 of 8
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`appeal and untimely petition for permission to appeal as constituting a single and
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`timely petition for permission to appeal. Id. at 1146-47.
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`This Court should follow Amalgamated. Indeed, instead of dismissing
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`plaintiff’s appeal outright for not satisfying FRAP 5, the Amalgamated court
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`correctly recognized that there is no clear language or indication in Section 1453
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`that plaintiffs are required to satisfy FRAP 5 before initiating an appeal and
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`therefore, it exercised its discretion under FRAP 2 to allow the appeal to proceed in
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`order to prevent unfairness and due process violations. Plaintiff-Appellant likewise
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`requests that this Court exercise its authority under FRAP 2 to suspend for good
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`cause the requirement of FRAP 5 in order to prevent any unfairness and due
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`process violations Plaintiff-Appellant would certainly experience should the Court
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`dismiss the appeal.
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`C.
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`In The Alternative, Plaintiff-Appellant Seeks Leave To File A Petition
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`To Appeal To Ensure This Court Has Subject Matter Jurisdiction
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`Over The Appeal
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`Plaintiff-Appellant seeks to appeal the Federal court’s order denying remand
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`because the Federal court does not have proper subject matter jurisdiction over this
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`case due to Defendant-Appellee’s failure to satisfy the $5M jurisdictional
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`minimum. The issue of whether the Federal court has subject matter jurisdiction is
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`significant and crucial to the proper adjudication of this case, and therefore,
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`7
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`Case: 20-17377, 01/19/2021, ID: 11968818, DktEntry: 9, Page 8 of 8
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`requires this Court’s review and opinion to ensure the case is litigated in the proper
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`court. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (courts “strictly
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`construe the removal statute against removal jurisdiction,” so “[f]ederal
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`jurisdiction must be rejected if there is any doubt” about jurisdiction.); Demarest v.
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`United States, 718 F.2d 964, 965 (9th Cir. 1983) (federal courts are courts of
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`limited jurisdiction).
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`If the Court is not inclined to exercise its authority under FRAP 2 to forgo
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`the FRAP 5 requirement, Plaintiff-Appellant, in the alternative, requests
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`permission to file a petition to appeal pursuant to FRAP 5 to ensure that this Court
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`has subject matter jurisdiction over Plaintiff-Appellant’s appeal.
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`IV. Conclusion
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`Plaintiff-Appellant respectfully requests that the Court discharge the OSC
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`and allow Plaintiff-Appellant’s appeal to proceed.
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`Dated: January 19, 2021
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`Respectfully submitted,
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`/s/Matthew T. Theriault
`Matthew T. Theriault
`Ryan J. Clarkson
`Bahar Sodaify
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`Attorneys for Plaintiff-Appellant Elizabeth Maisel
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`8
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