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Doran v. J. P. Noonan Transportation, Inc.

United States Court of Appeals, First Circuit

April 5, 2017

DALE DORAN, individually and on behalf of all persons similarly situated, Plaintiff, Appellant, MICHAEL J. COAKLEY, individually and on behalf of all persons similarly situated; MARK MORIARITY, individually and on behalf of all persons similarly situated, Plaintiffs,
v.
J. P. NOONAN TRANSPORTATION, INC.; CLANCY TRANSPORTATION, INC.; J. PETER NOONAN, SR.; J. PETER NOONAN, JR.; CHRISTOPHER NOONAN; PAUL NOONAN, Defendants, Appellees.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]

          David A. Cohen, with whom The Basil Law Group, P.C., John A. Kiernan, Michael D. Chefitz, and Bonner, Kiernan, Trebach & Crociata, LLP were on brief, for appellant.

          Geoffrey P. Wermuth, with whom Kathryn M. Murphy and Murphy, Hesse, Toomey & Lehane, LLP were on brief, for appellees.

          Before Lynch, Baldock, [*] and Kayatta, Circuit Judges.

          KAYATTA, Circuit Judge.

         The district court in this case entered an interlocutory order dismissing most but not all of plaintiffs' claims. At plaintiffs' urging, the district court then remanded the case to the state court from which it was removed. One of the plaintiffs thereafter filed a notice appealing the remand order, followed by a brief devoted to challenging the interlocutory order that dismissed most of his claims. For the following reasons, our rules and precedent require that we deem plaintiff's right to embark on this appellate foray waived.

         I.

         We recite the facts of this case briefly, drawing primarily from the undisputed facts contained in the record and plaintiff's opening brief.

         Plaintiff Dale Doran is a professional truck driver who was previously employed by defendant J. P. Noonan Transportation, Inc. ("JPN").[1] JPN is a Massachusetts-based corporation and federally authorized motor carrier that transports petroleum products such as gasoline, diesel fuel, and home heating oil throughout the northeastern United States. During his at-will employment for JPN, Doran worked out of JPN's terminal in Hooksett, New Hampshire. Doran typically drove fourteen hours per day without taking any paid breaks. Doran claims that under the terms of an oral contract with JPN, he was to be paid 30% of the "gross revenue" earned by the truck each day. From 2009 to 2014, JPN charged a "fuel surcharge" to many of its customers to account for "rapidly fluctuating changes" in the cost of the fuel used by the delivery trucks. Doran delivered loads for JPN for which JPN charged the fuel surcharge. He did not receive any portion of these surcharges.

         II.

         On June 19, 2015, Doran and two other named plaintiffs filed a putative class action suit against defendants in Massachusetts Superior Court, raising a variety of statutory and common law claims. Defendants successfully sought removal of the suit to the United States District Court for the District of Massachusetts pursuant to the removal provision of the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1453.

         On February 26, 2016, the district court granted without written explanation defendants' motion for summary judgment as to all of plaintiffs' statutory claims and all but one of plaintiffs' common law claims. Shortly thereafter, the district court issued an order in which it determined that "the jurisdictional amount is measured as of the time of removal, and that '[e]vents subsequent to removal that reduce the amount in controversy do not divest a federal court of CAFA jurisdiction.'" Accordingly, the court concluded that it continued to retain "original jurisdiction over this action" even though its grant of partial summary judgment reduced the amount in controversy below $5, 000, 000. The court went on to conduct a trial on Doran's remaining common law claim, which resulted in a jury verdict for JPN.

         On March 24, 2016, the district court held a status conference. Noting that it had a "jurisdictional" question, the court stated that it "had little trouble with how the Court's jurisdiction under the Class Action Fairness Act played out against the original scope of [plaintiffs'] complaint because it's a putative class action and [plaintiffs] had all those [statutory] claims . . . for which [they] could get attorneys fees and the like." The court then observed that "most of [plaintiffs' claims] went by the boards, " but that plaintiffs "have a right to appeal."

         The court proceeded to reiterate that it had "no doubt" not only that it "had jurisdiction over the complaint as originally crafted, " but also that it "had supplementary jurisdiction to take the next step and indeed [it] ha[s] supplementary jurisdiction to follow this thing through to conclusion." However, the court expressed concern insofar as the court was "going to have to have a run-up to ...


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