In Re Hotze Health Wellness Center International One, LLC, et al.

California’s Proposition 65 authorizes private enforcement in exchange for 25% of the penalties and the potential for attorneys’ fee under a fee-shifting law for public-interest suits. Respondent purchased a petitioner’s products, tested them, and filed a 2-count state-court complaint for Proposition 65 violations in Count I and for nonstatutory declaratory relief in Count II, seeking fees on both counts. Petitioners removed to federal court on diversity jurisdiction. In district court, Petitioners cited assignee standing and purchaser standing for Article III and diversity jurisdiction for both counts, plus supplemental jurisdiction for Count I if the State’s real-party status would defeat diversity for Count I. The district court remanded, finding assignee-based standing and the State’s real-party status to present hard questions, without deciding a lack of jurisdiction, and ignoring purchaser standing, diversity jurisdiction for Count II, and supplemental jurisdiction for Count I. A Ninth Circuit motions panel dismissed the appeal under 28 U.S.C. §1447(d), without addressing the claim that ignoring arguments is a non-jurisdictional abuse of discretion under Circuit precedent. For 136 days, the motions panel has not acted on petitioners’ motion under Circuit Rule 27-10 for reconsideration en banc. The question presented are:

1. Whether the remand order constitutes an appealable abuse of discretion for failing to reach or resolve the jurisdictional issues raised below.

2. Whether Article III and subject-matter jurisdiction exists for the removed state-court action.

3. Whether Circuit Rule 27-10 violates FED. R. APP. P. 47(a) for inconsistency on en banc review.