Atwell v Boston Scientific Corp., 2013 WL 6050762 (8th Cir. Nov. 18, 2013).
In this appeal, the Eighth Circuit ruled that when three cases each with less than 100 members were joined together before a common judge for the purposes trial, it becomes a mass action for the purposes of CAFA. Hence, a federal court can retain jurisdiction to hear an appeal of remand of a CAFA action.
Groups of plaintiffs filed several product liability actions in the Missouri’s Twenty-Second (City of St. Louis) Judicial Circuit against four manufacturers of transvaginal mesh medical devices. Each group comprised less than 100 plaintiffs. However, the three groups filed motions proposing that the state court assign each group to a single judge for purposes of discovery and trial. The defendants removed the three cases to the federal court, but two district judges granted the plaintiffs’ motions to remand on the ground that no case included more than 100 plaintiffs, and that plaintiffs never proposed that the actions be tried jointly in the state court.
The defendants appealed arguing that the three groups of plaintiffs had proposed to try their cases jointly within the meaning 28 U.S.C. § 1332(d)(11)(B)(i), transforming their cases into a single mass action subject to federal jurisdiction. In this opinion, we learn how the Eighth Circuit applies the theory of mass action to the three actions and retains jurisdiction.
At the outset, the Eighth Circuit analyzed whether three cases together be termed as a mass action subject to federal jurisdiction under CAFA. The Eighth Circuit noted that although the plaintiffs conceded that their respective individual claims involved common questions of law or fact, the plaintiffs could still bring separate state cases with fewer than 100 plaintiffs each against a common defendant to avoid federal jurisdiction under CAFA, unless their claims are proposed to be tried jointly.
Therefore, the issue here, as the Eighth Circuit noted, was whether three groups of plaintiffs proposing that their claims be “tried jointly” where § 1332(d)(11)(B)(i) applied and the case becomes removable, or it was merely a case where the plaintiffs asked that their respective claims be consolidated or coordinated solely for pretrial proceedings, where § 1332(d)(11)(B)(ii)(IV) applied, and made the case non removable.
Here, the Eighth Circuit observed that each plaintiff group (the “Atwell Group,” the “Taylor Group,” and the “Evans Group”) moved for special assignment to a single judge. First, Atwell Group sought to be assigned for purposes of discover and trial, then the Taylor and the Evans Group moved to have their cases assigned to a single judge for both pretrial and trial matters. But, none of the groups stated that they sought consolidation with other cases, their aim being to avoid conflicting pretrial rulings, and for providing consistency in the supervision of pretrial matters, etc.
The Eighth Circuit found that the dicta In re Abbott Laboratories, Inc., 698 F.3d 568 (7th Cir. 2012) applied to this case. In that case, several hundred plaintiffs filed 10 personal injury actions in three state courts and moved the Supreme Court of Illinois to exercise its discretion under a Court rule allowing for consolidated pretrial, trial, or post-trial proceedings. The Seventh Circuit reversed the District Court’s order remanding the case finding that the plaintiffs had requested consolidation of their cases through trial, and not solely for pretrial proceedings.
By contrast, in Romo v. Teva Pharmaceuticals USA, Inc., 731 F.3d 918 (9th Cir. 2013), attorneys for many plaintiffs in 40 product liability actions filed in California state courts asked California judicial council to invoke a state rule of procedure allowing coordination of common actions for all purposes. In affirming the district court’s remand order, the panel majority distinguished Abbott Labs because it involved consolidation rather than coordination, and because plaintiffs in Abbott Labs requested consolidation through trial, thereby removing any question of their intent.
Here, the Eighth Circuit noted that the counsel of Evans and Taylor plaintiffs, while disavowing a desire to consolidate cases for trial, nonetheless urged the state court to assign the claims of more than 100 plaintiffs to a single judge who could handle those cases for consistency of rulings, judicial economy, and administration of justice. The Eighth Circuit noted that the counsel for Atwell plaintiffs was more explicit, explaining that the motion was intended to have it assigned to the judge that’s going to try the case because of the complexity that’s going to occur all the way through. The Eighth Circuit accordingly, concluded that the counsel’s statement revealed the purpose of their motions – a joint assignment in which the inevitable result would be that their cases were tried jointly.
The Eighth Circuit held it had jurisdiction, granted the Defendants’ petition to appeal the remand orders, vacated the District Court’s orders remanding the cases to the state court and instructed the District Court to proceed consistent with its opinion. — JR