Commentary and analysis of the Fifth Circuit Court of Appeals decision in In re Katrina Canal Litigation Breaches, 2008 U.S. App. Lexis 7933 (5th Cir. April 11, 2008), discussing whether a state may evade removal under the Class Action Fairness Act (CAFA) by invoking Eleventh Amendment sovereign immunity, where the state added private citizens to its complaint. In this litigation arising over claims as a consequence of Hurricane Katrina in Louisiana, the state of Louisiana pursued litigation as plaintiff in state court. The defendants removed the case under CAFA, and Louisiana sought remand, invoking sovereign immunity principles. The problem of state sovereignty immunity in diversity cases has long eluded analysis because under settled principles it has long been settled that a state is not a person for diversity purposes. However, CAFA’s grant of jurisdiction to minimal diversity cases has allowed the issue of sovereign immunity to emerge as a problem. After extensive discussion of Eleventh Amendment sovereign immunity principles, federal diversity, and CAFA, the Fifth Circuit ultimately sidestepped resolution of these intersecting issues by deciding the case based on waiver doctrine. The general point of the court’s extended exegesis of Eleventh Amendment sovereign immunity principles is to point out that the doctrine traditionally has protected states as defendants, but not as plaintiffs, and therefore the 11th Amendment is inapplicable where the state is a plaintiff.
Linda S. Mullenix, CAFA, 11th Amendment, National Law Journal, September 1, 2008, at 12.