Bullard v. Burlington Northern Santa Fe Railway Co., 535 F.3d 759 (7th Cir. 2008)

Here at the CAFA Law Blog we are nothing if not hip, up-to-date, groovy people; just look at our references (Oklahoma!, the Beach Boys!, Happy Gilmore!, Insurance Commercials!). The list of exciting and bleeding-edge, up-to-the-minute references is almost endless. In today’s post, we will learn about a topic that is less than 3(ish) years old – texting. Thus, CAFA Law Blog will text its response to the case below.    

In this case, 144 Plaintiffs sought damages from four corporations that had designed, manufactured, transported or used chemicals that allegedly escaped from a wood-processing plant and injured nearby residents. Relying on § 1332(d)(11) of CAFA, which creates federal jurisdiction over “mass actions” in which plaintiffs propose a trial involving the claims of 100 or more litigants and the stakes of the action as a whole exceed $5 million and minimal diversity of citizenship exists, the defendants removed the suit from Illinois state court.

Plaintiffs, unhappy with the removal, moved for remand; however, this motion was denied. The Seventh Circuit agreed to review the matter in order settle the meaning of CAFA. [POS[1]].

According to the plaintiffs, CAFA has a loophole; § 1332(d)(11)(B)(i) refers to “claims of 100 or more person . . . proposed to be tried jointly.” The plaintiffs argued that their complaints did not propose trials because the plaintiffs would be happy to win by summary judgment or settlement. [WTF,[2] followed by ROTF,[3] followed by ROTFL,[4] followed by ROTFLOL,[5] followed by, ROTFLMAOTID,[6] followed by, ITWEWALTWTW[7]]. 

Moreover, the plaintiffs contended that because § 1332(d)(1)(B) states that a class action is a suit that is filed as representative proceeding and a proposal to hold a large trial comes after the compliant, then a proposal to hold a large trial cannot meet the filing requirement of § 1332(d)(1)(B). 

However, the Seventh Circuit disagreed with the plaintiffs’ interpretation of CAFA.  The Court noted that under the plaintiffs’ reading of CAFA, § 1332(d)(11) is useless because no mass action could ever be a class action. [and no provision in CAFA is a WOMBAT[8]]. The court states that according to the plaintiffs’ reading, a suit cannot be identified as a mass action until close to trial while a suit is a either a class action or not on the date of filing under § 1332(d)(1)(B). The Seventh Circuit states that courts “do not read statutes to make entire subsections vanish into the night.” [PWNED[9]

According to the Seventh Circuit, the correct reading of § 1332(d) is that litigation counts as a class action if it is either filed as a representative suit or becomes a mass action at any time, including long after filing. [7th sez RTM[10]].  The court went on to note that a proposal to hold multiple trials in a single suit does not take the suit outside of § 1332(d). The question, according to the Seventh Circuit, is not whether 100 or more plaintiffs will answer a roll call in court, but whether the claims of 100 or more persons are to be tried jointly (even if it is a trial of 10 exemplary plaintiffs followed by application of issue or claim preclusion to 90 more plaintiffs without another trial). [B4N[11]]. 


[1] Parent Over Shoulder. 

[2] What the F***. 

[3] Rolling On The Floor. 

[4] Rolling On The Floor Laughing. 

[5] Rolling On The Floor Laughing Out Loud. 

[6] Rolling On The Floor Laughing My A** Off Till I Die. 

[7] I Think We Would All Like To Win That Way. 

[8] Waste Of Money, Brains And Time. 

[9] Owned. 

[10] Read The Manual. 

[11] Bye For Now.