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CAFA Law Blog Information, cases and insights regarding the Class Action Fairness Act of 2005

Court Held No Jurisdiction Under CAFA for Lack of Required Number of Plaintiffs

Posted in Case Summaries

Whitlock v. Bayer Corp., 2017 WL 564489 (E.D. Mo. 2017).

A district court in Missouri remanded the action back to state court for lack of diversity jurisdiction, federal question jurisdiction, or jurisdiction under CAFA. In remanding the case the Court held that the defendants’ argument that several similar actions filed by the same attorneys against the same defendant should be aggregated to reach the required number of plaintiffs for a mass action under CAFA has been repeatedly rejected.  In so holding, the District Court noted it is the plaintiffs, not defendants, who can request the court to try the cases jointly in order for it to constitute a mass action.

Lawsuit Allegations

The plaintiffs in this action were 95 individual women, each of whom alleged that she suffered injuries resulting from the use of Essure, a permanent birth control system manufactured by the defendants.  The plaintiffs asserted claims of negligence, negligence per se, strict liability for failure to warn, and other common law violations.  The plaintiffs also asserted violations of consumer protection laws, Missouri products liability, violation of the Missouri Merchandising Practices Act, and also sought punitive damages.  The plaintiffs included citizens of 32 different states, including Missouri, Indiana, Pennsylvania, and New Jersey.

Procedural Background

The defendants removed the action on basis of diversity jurisdiction under 28 U.S.C. § 1332(a), federal jurisdiction under § 1331, and jurisdiction under CAFA.  The plaintiffs moved to remand.

The defendant Bayer Corporation was a citizen of Indiana and Pennsylvania, the defendant Bayer HealthCare LLC was a citizen of Delaware, New Jersey, Pennsylvania, Germany, and Netherlands.  The defendants Bayer Essure, Inc., and Bayer Healthcare Pharmaceuticals were citizens of Delaware and New Jersey.

Diversity Jurisdiction Analysis 

With respect to the diversity jurisdiction, the defendants argued that although there was a lack of complete diversity on the face of the petition, the court should dismiss the claims of non-Missouri plaintiffs for lack of personal jurisdiction, at which point complete diversity would exist.  The defendants also argued that diversity jurisdiction exists because the plaintiffs’ claims had been fraudulently misjoined.

The District Court held that complete diversity was lacking on the face of the Petition because the plaintiffs included citizens of New Jersey, Pennsylvania, and Indiana–states where some of the defendants were also citizens.

In addition, the District Court noted that the Eighth Circuit had not yet decided whether to adopt the doctrine of fraudulent misjoinder, though if it were to adopt the doctrine, only egregious misjoinder would warrant its application.  Here, the District Court found that each plaintiff alleged injury from the same product, and each plaintiff’s claim involved the same allegedly wrongful conduct with regard to development, distribution, marketing, and sales practice for that product.

The District Court found that while there were differences between the plaintiffs’ claims, those differences did not render the joinder egregious, and certainly did not suggest that the joinder bordered on a sham.  Accordingly, the District Court concluded that diversity jurisdiction did not exist in this case.

Federal Question Jurisdiction Analysis 

Similarly, the District Court found that federal jurisdiction did not exist, because the federal issues raised in the petition were not substantial, and accepting federal jurisdiction in a case such as this would disrupt the federal-state balance contemplated by the Congress.

CAFA Jurisdiction Analysis 

Finally, the defendants argued that federal jurisdiction was proper under CAFA’s mass action provision.  Under CAFA’s mass action provision, the federal courts have jurisdiction over certain civil actions in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involved common questions of law or fact.

While this case contained only 94 plaintiffs, the defendants argued that this case should be considered along with other similar Essure cases filed in this district to form a single mass action involving over 100 plaintiffs.  The defendants argued that those cases were part of the same mass action because those complaints contained the same substantive allegations, alleged the same causes of action, were filed by the same counsel, and were filed in the same jurisdiction.  The defendants argued that the plaintiffs could not avoid removal under the CAFA by artificially separating their plaintiffs into groups of fewer than 100 plaintiffs.

The District Court found that the defendants’ argument lacked merit.  The District Court explained that this case did not involve the claims of 100 or more persons, and there was no indication in the record that this case would be consolidated, or that the plaintiffs wished to have this case tried jointly with any other cases.  The fact that there was nothing in record to suggest that the plaintiffs had made any attempt to consolidate this case with any other Essure cases against the defendants distinguished this case from the Eighth Circuit’s decision in Atwell v. Boston Scientific Corp., 740 F.3d 1160 (8th Cir. 2013)

In Atwell, the Eighth Circuit recognized that state court plaintiffs with common claims against a common defendant may bring separate cases with fewer than 100 plaintiffs each to avoid federal jurisdiction under CAFA, unless the plaintiffs proposed to try their separate cases jointly.  (Editor’s Note:  For a more thorough analysis of the Atwell decision please follow the link to the CAFA Law Blog Analysis posted on September 19, 2014). Here the plaintiffs aren’t moving for joint trial, it was indeed the defendants who were asking the Court to consolidate this case with all of the other Essure cases filed in this district.

Because the District Court lacked subject matter jurisdiction over this case, it would grant the plaintiffs’ motion to remand the case to the state court.

  • Nicholas J Kopcho