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

A Post-CAFA Mass Action Encompassing Civil Actions Commenced Both Before And After CAFA’s Commencement Can Be Removed To Federal Court

Posted in Case Summaries

Lester v. Exxon Mobil Corporation, 2018 WL 330034 (5th Cir. Jan. 9, 2018).

In this action, the Fifth Circuit found that permitting removal over the suit as a whole, inclusive of the pre-CAFA claims, was consistent with congressional intent.

In 2002, before CAFA’s 2005 enactment, over 600 plaintiffs filed a petition in the Louisiana civil district court in Warren Lester, et al. v. Exxon Mobil Corporation, et al., alleging personal injury and property damage claims arising from naturally occurring radioactive material.  The state court utilized a “flighting” system to segregate the Lester plaintiffs’ claims into smaller trials or “flights.”  In 2013, the plaintiffs in one of the cases, Shirley Bottley et al. v. Exxon Mobil Corp., et al., filed a wrongful death and survival action seeking to recover for injuries to and the death of Cornelius Bottley.  Prior to his death, Cornelius Bottley had been a plaintiff in Lester, and the Lester and Bottley plaintiffs were represented by the same counsel.

The state court in Lester set for trial a flight of eight plaintiffs, the Louisiana Texas Oilfield Inspection Service Flight (“LTOIS”), which included Cornelius Bottley’s claim.  To join the LTOIS flight for trial, the Bottley plaintiffs moved to transfer and consolidate their three-plaintiff suit with Lester.

The defendant ExxonMobil Oil Corporation (“Mobil Oil”), a named defendant only in Bottley, removed both suits as a mass action under CAFA to the district court.  The district court denied the plaintiffs’ motion to remand and ordered that Bottley be consolidated with Lester.  On appeal, the Fifth Circuit affirmed.

The plaintiffs argued that there was no mass action because, the motion for consolidation was not granted by the state trial court prior to removal, the Bottley motion intended to propose a joint trial only with the LTOIS flight, and Lester’s procedural history, involving small trial flights with no accompanying preclusive effect, indicated the absence of a joint trial involving 100 or more persons.

The Fifth Circuit found that the ambiguity whether the state court signed a consolidation order was immaterial to the mass action inquiry because the plain language of CAFA indicated that a mass action arises upon a proposal for joint trial. The Fifth Circuit noted that the Bottley plaintiffs requested transfer to effect a consolidation for purpose of trial pursuant to Article 1561 of the Louisiana Code of Civil Procedure, which provides that when two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the actions for trial after a contradictory hearing, and upon a finding that common issues of fact and law predominate.  The Fifth Circuit found that the Bottley motion alleged that the cases involved overlapping liabilities, damages, and questions of law and fact and the determination of any of the issues in either case would have great bearing on the other and vice versa.  The Bottley motion further stated that consolidation was sought in an effort to seek judicial efficiency.

Additionally, the Fifth Circuit noted that Louisiana case law seemed to have interpreted Article 1561, in accord with the article’s plain language, to only permit consolidation for trial, as opposed to pretrial, purposes. The Fifth Circuit thus opined that to the extent Lester claimed that the Bottley motion sought consolidation only with Cornelius Bottley’s “lawsuit,” or to be set for trial with the upcoming LTOIS flight, the argument was contrary to Louisiana law.  The Fifth Circuit further opined that it would have been impossible to consolidate the Bottley plaintiffs’ claims with only the Bottley claim in Lester, as Bottley’s claim in Lester was one claim in a single, larger action.  The Fifth Circuit thus found that the Bottley consolidation motion proposed a joint trial of 100 or more plaintiffs’ claims, a mass action under CAFA.

Next, the plaintiffs argued that CAFA did not provide an opportunity for removal because the Lester action was commenced prior to CAFA’s effective date.  The Fifth Circuit noted that § 9 of CAFA provides that the amendments made by this Act apply to any civil action commenced on or after the date of enactment of this Act, which was February 18, 2005.  The Fifth Circuit also noted that CAFA does not apply retroactively.

Mobil Oil argued that the date on which a mass action came into existence was the relevant “commencement,” and because Bottley commenced post-CAFA, both Lester and Bottley were removable.  The district court relied on Braud v. Transport Service Co. of Illinois, 445 F.3d 801 (5th Cir. 2006), in which the Fifth Circuit held that a post-CAFA amendment to a pleading adding a new defendant to a pre-CAFA suit re-commences the suit as to the added defendant.  (Editor’s Note: See the CAFA Law Blog analysis of Braud posted on May 24, 2006).  The Fifth Circuit, however, noted that Louisiana law holds that consolidation does not effect a “merger” of consolidated suits unless there is a clear intention to do so, and Mobil Oil did not claim that it was now a defendant as to each plaintiff in Lester and Bottley.

The Fifth Circuit opined that although it was true that Lester alone could not be removed, however, it did not follow that a post-CAFA mass action encompassing civil actions commenced both before and after CAFA’s commencement could not be removed.  The Fifth Circuit noted that under CAFA, “the term ‘mass action’ means any civil action in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.”  The Fifth Circuit found that the Bottley action came within “any civil action” because it was a civil action commenced after the effective date of CAFA, and when it was proposed that Bottley be consolidated with Lester, Bottley became a mass action subject to CAFA’s provisions, including the removal provisions.

Additionally, the Fifth Circuit found that in Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007), the Eleventh Circuit averred that CAFA’s reference to ‘actions,’ as opposed to ‘claims,’ suggested that removal under CAFA was broadly inclusive, and permitting removal over the suit as a whole, inclusive of the pre-CAFA claims, was consistent with congressional intent. (Editor’s Note: See the CAFA Law Blog analysis of Lowery published on May 15, 2007). The Fifth Circuit thus found that because the Bottley claims were component parts of a mass action removable under CAFA and the Bottley suit was commenced after CAFA’s enactment date, Mobil Oil was permitted to remove the mass action as a whole.  The Fifth Circuit further found that it was immaterial to the removal inquiry that Mobil Oil was not a defendant in Lester, as Mobil Oil was a defendant to the Bottley–Lester mass action.

Accordingly, the Fifth Circuit affirmed the district court’s order.

The dissent, however, opined that CAFA’s non-retroactivity language prohibited counting the Lester plaintiffs toward the 100-person threshold that the defendants must satisfy in order to justify removal under CAFA’s “mass action” provision.

The dissent stated that reading the definition of ‘mass action’ together with § 9, it was clear that each of the “100 or more persons” needed to satisfy CAFA’s “mass action” numerosity requirement must be named as a plaintiff in a civil action commenced on or after February 18, 2005. The dissent opined that counting persons named as plaintiffs in an action commenced before CAFA’s enactment toward the 100-person threshold involved “applying” CAFA to that action; and doing so would thus directly contravene § 9, which unambiguously stated that CAFA’s provisions did not apply to such actions.  The dissent thus stated that because the Lester plaintiffs commenced their action on December 20, 2002, CAFA did not apply to Lester, and the Lester plaintiffs could not be considered in determining whether the defendants satisfied CAFA’s 100-person numerosity requirement.  The dissent further stated that the only way Bottley could have become a “mass action,” was by counting the Lester plaintiffs, which § 9 prohibited.

Additionally, the dissent stated that neither Braud nor Lowery supported a contrary result.  The dissent noted that Braud held that the addition of a new defendant to a civil action filed before CAFA’s enactment “commenced” a new civil action as to that defendant.  The dissent, however, noted that the Bottley plaintiffs’ motion to consolidate did not seek to add any defendants to Lester or to Bottley.  Similarly, the dissent noted that nothing in Lowery suggested that a motion to consolidate an action filed after CAFA’s enactment with a separate action filed prior to CAFA’s enactment permitted removal of the latter.  The dissent thus opined that allowing those actions to be removed to federal court contravened the plain meaning of CAFA’s non-retroactivity provision.

— John T. Rouse