Thorne v. Wyeth, Slip Copy, Case No. 06-3123, 2007 WL 2122158 (D. Minn. July 19, 2007).

“bueller….bueller….bueller” Don’t cut class and listen up, this case gives us a great teaching point regarding CAFA and MDL. 

This opinion out of the District of Minnesota discusses a motion to vacate filed by the plaintiffs and points out a small nuance in CAFA regarding multidistrict litigation. 

United States District Judge David S. Doty entered an Order on July 19, 2007 for the District of Minnesota denying the plaintiffs’ motion to vacate regarding an ongoing dispute over whether the action was subject to transfer to multidistrict litigation. 

The case was originally filed on July 6, 2007 by 396 Ohio women for adverse side effects suffered from hormone replacement therapy. The defendants removed the case on July 26, 2007 pursuant to the mass action provisions of CAFA, specifically, 28 U.S.C. § 1332(d)(11)(C)(i). One of the defendants was dismissed on November 14, 2006 and the remaining defendants requested permission to amend their notice of removal to assert diversity jurisdiction as a basis for removal. The magistrate judge denied the motion to amend and the case was conditionally transferred to the MDL. 

The judicial panel on multidistrict litigation, however, vacated its conditional transfer when the plaintiffs filed their opposition. The plaintiffs argued that the sole basis for removal was the mass action provision of CAFA. According to the provisions, an action cannot be submitted to the MDL without consent by a majority of the plaintiffs. 

Thereafter, on May 15, 2007, the district judge reversed the magistrate judge’s order which denied the defendants’ motion to amend their notice of removal. Two days later, the defendants filed their amended notice of removal, thereby clearing the way for another attempt at transfer to the MDL. The plaintiffs’ motion to vacate the court’s May 15 order was denied.

Editors’ Note: This is not a significant case for CAFA, but it does point out a significant nuance for any lawyer dealing with a MDL. Section 28 U.S.C. § 1332(d)(11)(C)(i) of CAFA provides:

“Any action(s) removed to Federal court pursuant to this subsection shall not thereafter be transferred to any other court pursuant to section 1407, or the rules promulgated thereunder, unless a majority of the plaintiffs in the action request transfer pursuant to section 1407.”

This means that cases removed under CAFA’s “mass action” provisions can not be transferred to MDL without consent of a majority of the plaintiffs. This, of course, does not apply to classes certified under Rule 23 of the Federal Rules.

Thanks for paying attention!