Price v. Berkeley Premium Nutraceuticals, Inc., No. 05-73169, 2005 WL 2649205 (E.D. Mich. 2005).
There’s nothing new about plaintiffs and defendants wrangling over whether the Class Action Fairness Act applies to a consumer class action, but in this case, the plaintiffs filed under the new law in an effort to keep their case in federal court. The plaintiffs, consumers of herbal female and male “enhancement products,” filed suit in Michigan state court in 2004, claiming among other things that the sellers misrepresented their wares and engaged in unauthorized billing. The defendants timely removed the action to federal court that same year.

The parties later had changes of heart about these litigation arenas, according to U. S. District Judge Alvern Cohn. Instead of opposing removal, the plaintiffs voluntarily dismissed their case, thinking that they could refile in federal court under the newly enacted Class Action Fairness Act, and, invoking the CAFA, the plaintiffs filed their federal class action in Michigan federal district court in April, 2005.
This time around, the plaintiffs urged the court that CAFA’s minimal diversity jurisdiction requirements were satisfied, while the defense argued to the contrary. Taking a position contrary to defense arguments in virtually every reported decision under the CAFA, the herbal remedy companies argued that the plaintiffs had “commenced” their action with the earlier 2004 filing. The defense pointed to Pritchett v. Office Depot, Inc., 420 F.3d 1090 (10th Cir. 2005), in support of their stance that the original filing date, rather than the removal date, pegs when an action commenced under CAFA.
Judge Cohn was unpersuaded, however, declaring that Pritchett does not control because the 2004 action was “improvidently removed,” and never belonged in federal court in the first place. The 2005 federal court filing was a new action and properly commenced under CAFA, Judge Cohn declared.
Both parties are at least temporarily stymied, however, by the court’s additional finding that the federal proceedings must be stayed until further order in light of nearly identical class action litigation pending in state court in Ohio.