Robinson v. Holiday Universal, Inc., No. 05-5726, 2006 WL 470592 (E.D. Pa. Feb. 23, 2006).
Steamed about allegedly excessive health club initiation fees, the plaintiffs added Bally Total Fitness Corporation to their pre-CAFA Pennsylvania state court class action. Yet, their reflexes were a bit too slow – Bally was added after the Class Action Fairness Act became law. Bally then muscled its way into federal court by removing the case under the minimal diversity provided under CAFA. Realizing their predicament, the plaintiffs then attempted to say goodbye to federal court by voluntarily dismissing Bally after the case was removed and simultaneously moving for remand, but by then, it was too late. The plaintiffs argued that Bally’s dismissal dissolved the federal court’s jurisdiction over the case, particularly since the original defendants would not have been able to remove but for Bally’s addition, but they had less success than the musclehead trying to score in the women’s aerobics class.

We’re sure that, in response to that argument, Pennsylvania U. S. Judge Gene E. K. Pratter (at least in his mind) responded in his best Austrian accent, “And we want to . . . [clapping his hands] . . . pump you up!” Well, if we had been writing the script . . . . The judge actually responded to the plaintiffs’ argument by first finding that Bally had properly removed the case, and second, that the plaintiffs’ voluntary dismissal of Bally did not abolish the federal jurisdiction over the action.
After first recognizing that CAFA’s numerosity and amount in controversy requirements were satisfied, Judge Pratter stated, “[w]hen a plaintiff adds a new defendant, a new action is ‘commenced’ for purposes of that defendant.” Since the action against Bally was “commenced” post-CAFA, the new defendant was granted an opportunity to remove the action to federal court, and Bally seized this opportunity by timely and properly removed the case to the Eastern District of Pennsylvania.
Much to the plaintiffs’ chagrin, the court expressed little sympathy for their self-inflicted wound, but concluded instead that Bally’s post-removal dismissal did not dissolve federal jurisdiction under CAFA. Judge Pratter stated, “[u]nder CAFA any single defendant can remove without the consent of the other defendants, and the entire lawsuit is removed, not merely the claims against the removing defendant.” Thus, the court retained subject matter jurisdiction over the entire action despite the departure of the only defendant that could have properly removed the action under CAFA, leaving the plaintiffs out of luck. We can also imagine Bally chanting to the plaintiffs the immortal words of Saturday Night Live’s work-out gods, Hans and Franz, ” Poor little girlie mon living in his girlie house.”
Judge Pratter also included some interesting tidbits in the footnotes to his opinion. One footnote discarded the plaintiffs’ argument that adding Bally did not commence a new action because it related back to the original filing. Another recognized a clash with the Southern District of Iowa, which concluded in Brown v. Kerkhoff, 05-0274, 2005 WL 2671529 (S.D. Iowa Oct. 19, 2005) that a post-CAFA defendant’s removal rights do not extend to pre-CAFA original defendants.