Dutcher v Matheson

Dutcher appealed the denial of his motion to remand this putative class action to Utah state court and the order dismissing the case. The panel, with one judge concurring and one member of the majority adding a concurrence, affirmed. The majority held it had jurisdiction over the remand issue under its 28 USC 1291 power to review final judgments even though there is 10 day window to challenge the denial of remand noting it joined all other circuits which have ruled on the issue. It held the denial was correct as Dutcher implicitly admitted jurisdiction was proper under the Class Action Fairness Act and further held none of the exceptions applied because another putative class action alleging virtually identical factual allegations was filed several months before Dutcher’s action was field, the time to evaluate whether an action is “field” as a class action is the time the complaint is filed and as of the date Dutcher field this action the local controversy exception could not apply due to the earlier case; the home state exception did not apply as all primary defendants must be state citizens and here Dutcher admits that several primary defendants (including the lender and a company which serves as substitute trustee for foreclosure purposes) were not Utah citizens; and the discretionary exception was not met because several primary defendants are not Utah citizens. It rejected Dutcher’s discovery argument as none of the discovery sought would change the citizenship of the primary defendants. It held the dismissal was proper as 12 USC 92a(a) is ambiguous as to where a national bank is “located’ and thus what state law applies as the statute provides no guidance whatever to determine where the bank is located and decisions by  District of Utah and the Utah Supreme Court which held the text unambiguous are unpersuasive as the analysis did not identify anything which answers the question of how to determine location; under the implementing regulation 12 CFR9.7(d), the Office of Comptroller fills the gap left by the ambiguity by identifying three factors (acceptance of appointment, execution of documents and discretionary decision-making) to guide the analysis of location and here all three point to Texas as the foreclosure company accepted appointment in Texas, executed the documents in Texas and decided to foreclosure in Texas; Texas law allows entities like the company to foreclose and thus dismissal was correct. It held Dutcher’s Chevron argument that 9.7 is unreasonable was waived as it was not made before the district court until reconsideration and there was no ruling on the merits. It declined to consider arguments by the State of Utah on the Chevron issue due to the lack of extraordinary circumstances to consider the arguments which were similar Dutcher’s waived arguments. The concurrence argued that 9.7 is not entitled to deference as it fails to include the key fiduciary duty of a trust deed trustee of doing foreclosures, favors out of state national banks over state and in state national banks and intrudes into an area of state sovereignty, but, agreed the argument was waived. The added concurrence noted that this is not a classic case of federal preemption as state law is incorporated in 92a(a) the only preemption possible here is the state whose law applies operating in place of the state which is not allowed to apply its law.

Century Surety Company v Shayona Investments, LLC

Shayona appealed the verdict against it arguing Century should have required to prove its case by clear and convincing evidence. The panel affirmed. It held that under Oklahoma law, which controlled here, breach of contract claims based on fraud only need to be proven by preponderance of the evidence whether as a claim in a complaint or as an affirmative defense and the arguments attacking damages arising from investigation were forfeited when Shayona’s counsel failed to object to the jury instruction on the matter.