Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., No. 2:05-CV-292-F, 2005 WL 3440636 (M.D. Ala. Dec. 14, 2005).
Just as the little Wharvey gals so eagerly informed their father, Ulysses Everett McGill in “O’ Brother Where Art Thou,” being “bona fide” is often a necessity – as it was here for Main Drug. Although cases addressing the “date of commencement” issue under the Class Action Fairness Act often amount to the same song and dance, Alabama state law provided an interesting and somewhat different tune in this dispute between a group of pharmacies and an insurance company over reimbursements for brand-name prescriptions. The allegedly “shorted” pharmacies first filed suit in Alabama state court on February 9, 2005 (which preceded CAFA’s effective date by 9 days), but waited until February 28, 2005 to file the summonses with the clerk’s office. Aetna took full advantage of this hiccup by Main Drug’s counsel, and removed the action, asserting federal jurisdiction under CAFA, as well as federal question jurisdiction under ERISA. Main Drug moved to remand, and U. S. District Judge Mark E. Fuller held that the class’s claims were not preempted by ERISA, but that the delay in filing summonses deferred the action’s commencement date to post-CAFA, thereby potentially allowing CAFA to apply.

In winning this preliminary skirmish, Aetna argued that state law controls when a case is actually “commenced” under CAFA, and that under Alabama law, an action does not commence unless the complaint is served with the “bona fide intention” of having it immediately served. Main Drug, realizing that it was in a tight spot, countered that Alabama Rule of Civil Procedure 3(a) provides that an action is commenced when the complaint is filed, and the bona fide intent requirement only arises when statute of limitations issues are broached, which were absent here.
After affirming Aetna’s argument that CAFA commencement issues are settled pursuant to state law, Judge Fuller applied the bona fide standard to determine the meaning of “commence” in section 9 of CAFA. Judge Fuller concluded that “by intentionally not filing the summons along with the complaint, the Plaintiff objectively failed to show a bona fide attempt to proceed with the action,” and thus, the action did not “commence” until Main Drug filed the summonses on February 28, 2005, which was obviously post-CAFA.
However, Aetna had not escaped state court just yet. After determining that CAFA applied to the action, Judge Fuller then turned to whether the action satisfied CAFA’s amount in controversy requirement. Concluding that the court had insufficient information to determine this issue, the judge ordered the parties to brief the issue, particularly as to whether the party attempting to avoid federal jurisdiction or the party attempting to invoke federal jurisdiction under CAFA carries the burden of proof. (Editor’s Note: Expect a decision soon with Judge Fuller’s take on the CAFA burden of proof issue.) Aetna and Main Drug continue on their journey to determine just how much “treasure” is at stake.