Irish v. BNSF Railway Co., No. 08-CV-496-SLC, 2009 WL 276519 (W.D. Wis. Feb. 4, 2009). 

Note to all those dreaming of one day bringing a class action lawsuit of your own: don’t bring suit on behalf of your entire town unless you want the case removed to Federal Court. 

In Irish, the plaintiffsfiled a class action suit against BNSF Railway Company for allegedly failing to “design, construct, and maintain the railway bridge and bridge trestle”, which would have presumably prevented flooding. The plaintiffs are seeking damages resulting from a flood in the summer 2007, which they claim was man-made and preventable (yes, they claimed that the flood was man-made, not the cause of the flood).   

The plaintiffs included 53 plaintiffs in their suit, but also claimed that “at least another 25 households have been affected”, bringing the total to 74. The defendants immediately filed to remove to federal jurisdiction under CAFA. After the defendants filed, the plaintiffs objected to the motion, but only on the issue of the plaintiff class exceeding 100 persons.

The plaintiffs asserted that the defendants failed to prove the “Geography Test”, – as in “class, draw a map of Ireland and put a big star where Dublin should be” – claiming that not all the “possible” plaintiffs lived “upstream and/or tributary to” the drainage area of the flood. 

Well, that argument didn’t go down nearly as smooth as a pint of Guinness with the court. The District Judge did not even address this assertion, noting that use of the words “at least” would have alone been enough to meet the 100 person requirement. After all, shouldn’t the Irish be used to being surrounded by water (maybe they should have just dyed the water green and kicked off St. Patty’s day, round 2)? 

As if having your entire town flooded wasn’t unlucky enough: picture rooftops sticking out of the water like four-leaf-clover-shaped marshmallows in a bowl of milk, or just click here or here

The court, using analysis from Cunningham Charter Corp. v. Learjet, Inc., 2008 WL 3823710, noted that class membership, under CAFA, is not merely the plaintiffs named in the suit, but the persons (named or unnamed) who fall within the definition of the proposed class. (Editors’ Note: See the CAFA Law Blog analysis of Cunningham Charter posted on October 24, 2008). Thus, the test is always whether 100 or more people fall within the class proposed by the plaintiffs in their complaint, which, using the defendant’s numbers, total around 369. The class, as stated in the lawsuit, basically included the whole town: Bagley, Wisconsin, population 335 as of July, 2007. 

So, to all other potential flood victims out there, when you bring your class action lawsuit, make sure to define your class so that no more than 99 people could fit within that definition (and don’t use words like “at least” when referring to potential new plaintiffs). Basically, don’t bring a class action on behalf of your entire town. As soon as a class action is removed to federal court, plaintiffs lose any power they once had to seek to avoid federal jurisdiction by defining a proposed class in particular ways. Looks like the plaintiff Irish’s quest for that pot of gold at the end the proverbial rainbow (that would be BNSF’s deep pockets: $1.8 billion in profits in 2008) will be taking a detour through Federal court.   

By:  Caleb Trotter