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CAFA Law Blog Information, cases and insights regarding the Class Action Fairness Act of 2005

Mere Substitution of Deceased Plaintiff’s Heir Does Not Commence a New Action under CAFA

Posted in Case Summaries

Adams v. Grefer, 636 F. App’x 906 (5th Cir. 2016).

The Fifth Circuit affirmed a remand order, finding that amending the complaint to substitute an heir for a deceased plaintiff did not commence a new action for the purposes of CAFA.

In 2002, the plaintiffs filed a mass action suit against the defendants in the Louisiana state court, alleging personal injury and property damage from contamination exposure.  The plaintiffs amended their petitions in January 2004, January 2015, and August 2015.  After the August 2015 amendment, defendant Joseph F. Grefer removed the case to the federal court under CAFA.  Grefer argued that the last amended petition added new plaintiffs and claims under Louisiana law, thereby commencing new action and opening a new window of removal under CAFA.  The plaintiffs moved to remand the action, which the District Court granted.  Grefer appealed to the Fifth Circuit.

Grefer contended that the last amended petition added hundreds of new plaintiffs and claims, citing the amended petition’s reference to Louisiana’s wrongful death statute in a section of the petition noting the substitution of heirs. The Fifth Circuit observed that Grefer’s reliance on this single citation to the wrongful death statute ignored everything that followed in the remainder of the amended petition.  The Fifth Circuit pointed that virtually every subsequent paragraph stated that the estate of original plaintiffs was represented by their respective heirs.  In fact, none of the paragraphs alleged any facts whatsoever suggesting that a new plaintiff was bringing a wrongful death claim, rather the paragraphs simply established which heirs would be representing the estates of which deceased original plaintiffs.

Citing Admiral Insurance Co. v. Abshire, 574 F.3d 267, 274 (5th Cir. 2009) for the proposition that the mere substitution of deceased plaintiffs by their heirs does not commence a new action for purposes of CAFA, the Fifth Circuit affirmed the District Court’s order remanding the action to the state court. (Editors’ Note: See the CAFA Law Blog analysis of Abshire posted on February 28, 2010).

— Kevin Lampone