Timothy Durham; Jeffrey Myles McCaslin; Ray Smith; Smith Clara

Defendant s

Appeal from United States District Court for the Western District of Arkansas - Ft. Smith

Submitted: January 14, 2026 Filed: August 18, 2026

Before L.R. SMITH, ERICKSON, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

David Taff sued Brian DuBuc and other defendants in the Circuit Court of Scott County, Arkansas to establish his rights over a twelve-foot-wide easement of necessity on DuBuc’s property. Taff sought declaratory judgment and an injunction Page 2enforcing the easement. He later amended his petition, adding allegations that DuBuc was stealing gravel from the easement and requesting $648 or the gravel’s safe return. DuBuc answered and counterclaimed, seeking quiet title.

DuBuc's counsel withdrew before trial, and he proceeded pro se . He withdrew his counterclaim at the close of a bench trial. The court found that Taff owned the easement, as described in his deed, and adversely possessed additional land; it awarded $656 in damages, permanently enjoined the defendants from interfering with Taff's use of the easement, and instructed Taff to file a second amended petition adding an adverse-possession claim to conform to the evidence at trial. DuBuc moved for a new trial and to vacate the judgment. After Taff amended the petition, DuBuc moved to strike.

Before the court ruled on these motions, DuBuc removed the case to federal court, claiming diversity jurisdiction. Taff moved to remand, arguing that the amount in controversy was not met and the removal was untimely. DuBuc opposed, arguing that there was federal question jurisdiction. Seven weeks after the issue was fully briefed, but before the district court ruled, DuBuc moved for class certification, joinder of required parties, and summary judgment. He alleged, among other things, that Taff was polluting the nearby Poteau River, in violation of the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq. , and the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300f et seq .; invoked federal subject matter jurisdiction under the Class Action Fairness Act (CAFA), 28 U.S.C. §§ 1332(d) and 1453; asserted that there was at least $5,475,000 in controversy; and moved for certification of a class of adversely affected Arkansans and Oklahomans.¹ The district court 2 remanded the Page 3case, concluding that removal was untimely. See 28 U.S.C. § 1446(b)-(c). DuBuc filed a notice of appeal the next day. An administrative panel granted DuBuc's motion to proceed in forma pauperis and appointed counsel.

We begin and end with our appellate jurisdiction. See H&T Fair Hills, Ltd. v. All. Pipeline L.P. , 154 F.4th 899, 901 (8th Cir. 2025) (“[O]ur first task in any case [] is to ensure we have jurisdiction over an appeal.”); Resol. Tr. Corp. v. Sonny’s Old Land Corp. , 937 F.2d 128, 129 (5th Cir. 1991) (“Before addressing the district court’s jurisdiction on removal, we must decide our own jurisdiction.”). Generally, “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.' Stone v. J & M Sec., LLC , 55 F.4th 1150, 1152 (8th Cir. 2022) (quoting 28 U.S.C. § 1447(d)). But under CAFA, we “may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not more than 10 days after entry of the order.' Froud v. Anadarko E & P Co. , 607 F.3d 520, 522 (8th Cir. 2010) (per curiam) (emphasis added) (quoting 28 U.S.C § 1453(c)(1)). As relevant here, a “class action” is “any civil action filed under [R]ule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action.' 28 U.S.C. §§ 1332(d)(1)(B) and 1453(a).

Is this a class action? DuBuc says it is, arguing his pro se motion for class certification “initiated CAFA counterclaims.” It’s true that the motion expressly invoked Rule 23. And “liberally construed,” Erickson v. Pardus , 551 U.S. 89, 94 (2007) (per curiam) (citation omitted), it touches on all of Federal Rule of Civil Procedure 8(a)’s requirements: it has grounds for the court’s jurisdiction, a statement of the claim for relief, and a demand for the relief sought.³ Fed. R. Civ. P. 8(a)(1)(3).

Page 4But whether this is a class action ultimately depends on the operative pleadings. See Johnson v. Riverland Levee Dist. , 117 F.2d 711, 714 (8th Cir. 1941) (“Plaintiffs claim this is a class action. Whether it is or not must be determined by the allegations of the amended complaint.”); accord United States v. Preston , 352 F.2d 352, 356 n.10 (9th Cir. 1965) (“An action cannot be deemed a class action unless shown to be such by the complaint.”); City of Safety Harbor v. Birchfield , 529 F.2d 1251, 1253 n.3 (5th Cir. 1976) (“[S]ince no effort was made to comply with the provisions of Fed. R. Civ. P. 23, the complaint provided no basis for treating . . . the action as a class action.”); Ali v. City of Chicago , 34 F.4th 594, 602 (7th Cir. 2022) (“A class action ‘must be brought as a class action .’” (citation omitted)).

Neither Taff’s claims nor DuBuc’s withdrawn counterclaim were brought on behalf of a class. DuBuc did not “amend[] [his] answer by supplemental pleading to assert [class action] counterclaim[s]” in Arkansas state court, where he could have done so by right. See Allison v. Long , 985 S.W.2d 314, 315 (Ark. 1999) (L.R. Smith, J.); Ark. R. Civ. P. 15(a). And he did not obtain leave of court, or the defendants’ written consent, to amend his pleadings after removing this case. See Fed. R. Civ. P. 15(a)(2). While pro se pleadings and motions should be construed liberally, ' pro se litigants are not excused from failing to comply with substantive and procedural law.” Glover v. Bostrom , 31 F.4th 601, 605 (8th Cir. 2022) (quoting Burgs v. Sissel , 745 F.2d 526, 528 (8th Cir. 1984) (per curiam)); see James v. Hunt , 761 F. App’x 975, 978 (11th Cir. 2018) (per curiam) (“Despite their pro se status, the Plaintiffs were required to comply with Rule 15(a).”); Ping Tou Bian v. Taylor , 23 F. App’x 75, 77 (2d Cir. 2001) (per curiam) (similar). Absent any class claim or counterclaim, we have no jurisdiction under 28 U.S.C. § 1447(d).

The appeal is dismissed for lack of jurisdiction. We thank appointed counsel for their work on this appeal.