Hildebrand v. Dentsply Int’l, Inc., No. 06–5439, 2011 WL 4528343 (E.D. Pa. Sept. 30, 2011).

Remember Emily Littela played by Gilda Radner on the Weekend Update segments on Saturday Night Live? She would frequently rant about topics about which she had misread or misheard, such as "Violins on Television," "Endangered Feces," or "Presidential Erections." She would then respond “Never Mind!” when she was informed of her mistake. You can almost hear the plaintiffs say the same thing in this case.

 In this case, a District Court in Pennsylvania held that when the named plaintiff was subsequently dismissed for lack of standing, his claim was never live; thus, diversity of citizenship and, therefore, subject matter jurisdiction never existed. Under these circumstances, the Court held the principle that “federal jurisdiction under CAFA once properly invoked, is not destroyed by subsequent events,” cannot be applied.

The plaintiffs, two periodontists, Dr. Carole N. Hildebrand and Dr. Robert A. Jaffin, brought this putative class action, individually and on behalf of Pennsylvania and New Jersey periodontists, against Dentsply for breach of warranty and negligent design relating to alleged defects in the Cavitron ultra scaler, a dental and periodontal tool.

Cavitron ultra scaler is a tool which generates a pressured, pulsating water stream through a handpiece at the end of a flexible tube and is used by dental professionals to remove calculus and tartar from teeth, as well as by periodontists to debride subgingival tooth, root and bone surfaces. Sounds like it is a fancy power washer. 

The plaintiffs alleged that the Cavitron’s internal tubing was hospitable to the formation of biofilm, which created a risk of transmitting pathogens to patients during routine dental prophylaxis and periodontal procedures. According to the plaintiffs, the Cavitron was unsafe for patient use without the purchase of expensive additional or substitute equipment or systems. This defect was allegedly known to Dentsply, but it did not disclose to the plaintiffs or plaintiff class members. Later, the plaintiffs added Dr. Mitchell Goldman as a named plaintiff.

Contending that the named plaintiffs, Dr. Hildebrand and Dr. Jaffin, practice dentistry in a corporate capacity rather than individually, Dentsply moved to dismiss them for lack of standing to bring claims or serve as class representatives in the above-captioned matter. 

The District court found that each corporate entity (and not the periodontist who filed this suit in his or her individual capacity) was the actual litigant seeking damages in this case, and having chosen to do business in the corporate form, these periodontists could not sue as individuals for alleged damages incurred by their practices pursuant to a purchase of professional equipment. Accordingly, the Court dismissed the named plaintiffs, Dr. Robert and Dr. Jaffin, for lack of standing. The Court also denied the plaintiffs’ belated motion for leave to file an amended complaint to substitute their corporate practices as named plaintiffs (“Motion to Substitute”) remarking, “It is too late to say ‘Never mind!”’ 

In light of its dismissal of Dr. Hildebrand (the only named periodontal plaintiff residing or practicing in Pennsylvania—and representative of the Pennsylvania class) and Dr. Jaffin (the only named plaintiff residing or practicing in New Jersey—and representative of the New Jersey class), the Court dismissed all counts brought on behalf of the purported Pennsylvania and New Jersey periodontal class members for lack of subject matter jurisdiction, because Drs. Hildebrand’s and Jaffin’s claims were moot.

With Counts I and II outstanding only as to named plaintiff, Dr. Mitchell Goldman and the putative Pennsylvania dental class members, the Court directed the parties to brief any jurisdictional issues that might result from the Court’s dismissals.

The plaintiffs, however, filed their motion for partial reconsideration asking the Court to vacate its Order and to substitute the named periodontist plaintiffs’ corporate practices as named plaintiffs. 

Having dismissed Drs. Hildebrand and Jaffin—a ruling which the plaintiffs did not seek to disturb—the Court was forced to examine whether it in fact possessed subject matter jurisdiction over this matter at all, such as to allow it even to rule on the plaintiffs’ motion for reconsideration. 

The Court noted that Dr. Jaffin was the only named plaintiff residing or practicing in New Jersey in this case, and thus he was the only diverse (i.e., non-Pennsylvania) named plaintiff. Because Dr. Jaffin was dismissed for lack of standing, his claim was never live; thus, diversity of citizenship and, therefore, subject matter jurisdiction never existed, the Court observed.

The Court stated that in their complaint, the plaintiffs invoked federal diversity jurisdiction under 28 U.S.C. § 1711. Section 1711 is not jurisdictional, but instead merely defines several terms relevant to class actions. Presumably, the plaintiffs sought to invoke jurisdiction under CAFA, 28 U.S.C. § 1332(d). Regardless, the Court pointed that the plaintiffs could not create diversity jurisdiction simply by pleading it. Whether diversity jurisdiction exists is determined by examining the citizenship of the parties at the time the complaint was filed, and while a class action may remain viable when a class representative loses standing after class certification, representatives cannot establish subject matter jurisdiction if they lack requisite standing when the complaint is filed. 

The plaintiffs argued extensively that federal jurisdiction under CAFA once properly invoked, was not destroyed by subsequent events. The Court, however, observed that because the only plaintiff with standing from the commencement of the action could not establish diversity, subject matter jurisdiction never was properly invoked here, and thus never was destroyed by subsequent events. Thus, this action did not satisfy CAFA’s diversity requirements at the time it was filed, the Court concluded.

The Court stated that the only named class representative with standing when the Complaint was filed in this matter was Dr. Goldman, who shares Pennsylvania citizenship with the defendant and thus could not represent the New Jersey subclass. Accordingly, the Court concluded that without any non-Pennsylvania law claims or representatives properly in this case from the outset, no federal court subject matter jurisdiction ever existed, and thus dismissed the action.           

Therefore, the Court dismissed the plaintiffs’ motion for reconsideration as moot.