Altoum v. Airbus, S.A.S., No. 10-CV-467 (N. D. Ill. Sept. 9, 2010).

If you think you are filing your complaint on behalf of 100 plaintiffs, make sure you have 100 plaintiffs. Your knowledge of your clients is very important. Duh!

In this action, the District Court for the Northern District of Illinois, Judge Charles Ronald Norgle, declined to remand the action to state court holding that including plaintiffs in an action who are already plaintiffs in an earlier related action is not a scrivener’s error.

The plaintiff, Mohamed Makky Altoum, and 101 other plaintiffs brought a product liability and negligence claims in the state court against Airbus S.A.S. concerning an airplane crash that occurred in Khartoum, Sudan on June 10, 2008 (the “Altoum Action”). 

Prior to the filing of the Altoum Action, the plaintiffs’ attorney filed a similar complaint in the state court on behalf of over 80 other plaintiffs (the “Mohammad Action”) claiming similar relief against Airbus. According to the plaintiffs’ attorney, he filed the two actions separately because subsequent to the filing of the Mohammad Action, he was retained by other persons who were injured or lost loved ones in the Khartoum air crash through a referring attorney different from the referring attorney in the Mohammed Action. The plaintiffs’ counsel stated that he included 20 plaintiffs in the Altoum Action who already had asserted identical claims in Mohammad Action as a result of his error due to mistaken or variable spellings of the names of these 20 persons provided to him by the referring attorney.

Airbus removed the Altoum Action to the District Court pursuant to CAFA. 

The plaintiffs moved to remand and to voluntarily dismiss 20 of the plaintiffs listed in the Altoum Action, which the District Court denied.

The plaintiffs did not dispute that the Altoum Action, when originally filed, satisfied CAFA’s jurisdictional requirements for federal jurisdiction. The plaintiffs did seek remand because they later discovered that the District Court’s jurisdiction was based on a “scriveners’ error” that resulted in the inclusion of 20 plaintiffs whose claims were already pending in the Mohammad Action. The plaintiffs accordingly argued that they should be allowed to voluntarily dismiss these 20 erroneously included persons from the Altoum Action, leaving 82 plaintiffs remaining. Under the plaintiffs’ reasoning, if the Altoum Action would no longer have at least 100 plaintiffs, federal jurisdiction would not exist under CAFA and the Altoum Action would be required to be remanded to state court.

The Court, however, found that the plaintiffs’ argument was not supported by Seventh Circuit’s reasoning in In re Burlington N. Santa Fe Ry. Co., 606 F.3d 379, 380-81 (7th Cir. 2010) and Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759, 761 (7th Cir. 2008) (Editors’ Note: See the CAFA Law Blog analysis of In re Burlington posted on July 27, 2010 and the analysis of Bullard posted on August 31, 2009) that jurisdiction is determined at the time of removal, and nothing filed after removal affects jurisdiction. In this context, the Burlington Court remarked, “allowing plaintiffs to amend away CAFA jurisdiction after removal would present a significant risk of forum manipulation,” and keeping the case in federal court “minimizes the expense and delay caused by shuttling a case from court to court and furthers CAFA’s purpose of allowing putative class actions to be litigated in federal court.”

The plaintiffs, responding that the present case was an exception to the general rule of Bullard and Burlington, cited Schillinger v. Union Pac. R.R. Co., 425 F.3d 330, 332-34 (7th Cir. 2005), (Editors’ Note:  See the CAFA Law Blog analysis of Schillnger posted on October 24, 2005) where the Seventh Circuit stated that “a case should not come to federal court if the only ground for jurisdiction is a clerical error.” The Schillinger court agreed with plaintiffs that the inadvertent inclusion of the additional defendant did not support CAFA removal.

The Court remarked that Schillinger did not control the outcome of this matter because the plaintiffs’ counsel did not commit a scrivener’s error when he filed the Altoum Action on behalf of 102 plaintiffs. A scrivener’s error is synonymous with a clerical error and a clerical error is one “resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.” 

The Court observed that, here, the plaintiffs’ counsel was not transcribing or copying any document when he drafted the Altoum Action. Moreover, in contrast to Schillinger where plaintiffs’ lawyer inadvertently included a defendant in an amended complaint, here the plaintiffs’ counsel fully intended to include all 102 plaintiffs when he filed the Altoum Action. Based on the information the plaintiffs’ counsel possessed at the time of the filing, he knowingly chose to bring suit on behalf of more than 100 plaintiffs. As a result, his inclusion of 102 plaintiffs in the Altoum Action could not be considered “inadvertent.” 

Therefore, the Court concluded that Schillinger was inapplicable and denied the plaintiffs’ motion to remand relying on Bullard and Burlington standard.