Rodriguez v. Monsanto Co., No. 4:11CV01658 AGF, 2011 WL 5245251 (E.D. Mo. Nov. 2, 2011).

Relying on the Seventh and Ninth Circuit’s opinion, a District Court in Missouri held that the mass action provision of CAFA gives plaintiffs the choice to file multiple separate actions that do not each qualify for CAFA jurisdiction.

In August 2010, four individuals brought an action in Missouri state court, alleging that as a result of the defendants’ culpable conduct, they developed non-hodgkin’s lymphoma resulting from their exposure to polychlorinated biphenyls.

From May 2009, through September 2011, ten other similar suits were brought against the defendants by varying numbers of plaintiffs, all under 100 and all represented by the attorneys who represent the plaintiffs herein.    

The defendants removed this action to the federal court pursuant to the “mass action” provision of CAFA, 28 U.S.C. § 1332(d)(11)(A) and (B)(i). The plaintiffs sought remand arguing that the case did not fall within the definition of a “mass action.” 

The District Court agreed and remanded the action to state court.

The issue before the Court was whether the 11 individual state court actions, each with fewer than 100 plaintiffs, should be treated as one “mass action” eligible for removal to federal court under CAFA.  Under § 1332, CAFA extends federal removal jurisdiction to “mass actions,” which are defined as “any civil action (except a class action) in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.” CAFA further states that the term ‘mass action’ shall not include any civil action in which the claims are joined upon motion of a defendant or the claims have been consolidated or coordinated solely for pretrial proceedings.

Inferring the congressional intent from the plain meaning of the statute, the Court noted that CAFA narrowly defines mass actions. In this case, there are not 100 or more persons who have been proposed to be tried jointly. 

The Court pointed that this precise issue has been addressed by the Seventh and Ninth Circuits, which both held that plaintiffs could avoid federal removal jurisdiction under CAFA by carving their filings into separate pleadings, Anderson v. Bayer Corp., 610 F.3d 390, 393-95 (7th Cir. 2010) and Tanoh v. Dow Chem. Co., 561 F.3d 945, 953, 955 (9th Cir. 2009). (Editors’ Note: See the CAFA law blog analysis of Anderson posted on September 8, 2010 and the CAFA Law Blog analysis of Tanoh posted on August 13, 2009.)

The defendants argued that the 11 separate law suits filed by the plaintiffs’ attorneys were a transparent attempt to circumvent CAFA, and cited Freeman v. Blue Ridge Paper Products, Inc., 551 F.3d 405 (6th Cir. 2008), and Westerfeld v. Independent Processing, LLC, 621 F.3d 819 (8th Cir. 2010) for support. (Editors’ Note: See the CAFA law blog analysis of Freeman posted on February 17, 2009 and the CAFA Law Blog analysis of Westerfeld posted onSeptember 13, 2010. 

The Court, however, found that those cases address CAFA’s class action provisions and not its mass action provisions, and as the courts in Anderson and Tanoh recognized, Freeman involved a different matter, namely, an attempt by the same class of plaintiffs to split their lawsuits into “completely arbitrary” time periods, with each suit claiming under $5 million, in order to creatively avoid CAFA’s $5 million threshold.

Referencing Freeman and a similar district court case, the Ninth Circuit in Tanoh explained, “Central to the courts’ holdings, however, was the fact that both sets of plaintiffs split their claims in an effort to seek well over $5 million in total damages without triggering federal removal jurisdiction. As the Sixth Circuit in Freeman explained, plaintiffs are generally allowed to plead around federal jurisdiction at a cost: they must limit the damages they seek to less than CAFA’s $5 million threshold. Permitting plaintiffs to split their claims arbitrarily by time period threatened to subvert this rule, enabling plaintiffs to seek well over the $5 million–in Freeman, for example, almost $25 million among the five suits–without subjecting themselves to federal removal jurisdiction. The court rebuffed this end-run around CAFA, holding that “where recovery is expanded, rather than limited, by virtue of splintering of lawsuits for no colorable reason, the total of such identical splintered lawsuits may be aggregated.”  The Court, however, remarked that those concerns were not present in this case.

Next, the Court observed that Westerfeld also involved a different issue than raised here. In Westerfeld, while discussing CAFA’s local-controversy exception, the Eighth Circuit found that “whether an in-state defendant is a significant defendant for purposes of the local-controversy exception must be determined by considering the claims of ‘all of the members in the class action’ and not by considering the claims of class members on a class-by-class basis.”

While the courts in Freeman and Westerfeld were concerned not to construe the statute in a manner that permitted the parties to subvert the requirements and the language of the statute, neither case involved the language and provision at issue here, the Court observed. Agreeing with Anderson and Tanoh that the mass action provision of CAFA gives plaintiffs the choice to file multiple separate actions that do not each qualify for CAFA jurisdiction, the Court concluded that the defendants’ argument that these separate lawsuits be treated as one action was tantamount to a request to consolidate them–a request that Congress has explicitly stated cannot become a basis for removal as a mass action.

Accordingly, the Court remanded the action to the Circuit Court for St. Louis County, Missouri