Plubell v. Merck & Co., 434 F.3d 1070, No. 05-4217, 2006 WL 141661 (8th Cir. Jan. 20, 2006).
While the country’s federal district courts may have seen most of the action when it comes to interpreting the Class Action Fairness Act of 2005, the circuit courts of appeal are not far behind, as cases like this piece of the national Vioxx litigation puzzle percolate through the system. Here, the Eighth Circuit steps to the plate and swings away at the CAFA “date of commencement” issue which has taken up so much of the CAFA judicial energy during the first year of the CAFA Revolution. Specifically, the court considered whether a new action was commenced post-CAFA by the substitution of the class representative upon discovery that the original representative did not have a colorable claim.
This particular battle began when plaintiffs sued Merck & Co. in Missouri state court in December, 2004, before the adoption of CAFA, claiming that the company engaged in deceptive trade practices linked to the development and marketing of Vioxx. However, the original class representative was mistaken about the manufacturer of her pain medication, so the plaintiffs asked the court for leave to substitute another class member as class representative. The state court, prior to class certification, granted leave to amend in August, 2005 to allow the plaintiffs to replace the former class representative with class member Mary Plubell. Immediately upon the amendment of the petition, Merck removed the case to federal court under CAFA, arguing that the plaintiffs’ substitution of class representatives “commenced” a new action. Judge Howard F. Sachs, U.S. District Judge for the Western District of Missouri, denied Merck’s motion and remanded the case to state court. Merck decided, presumably due to the facts surrounding the original representative’s unfounded claim, to appeal the ruling to the Eighth Circuit.
Judge Benton, writing for the court, held that the amended petition substituting Plubell related back to the original 2004 filing, preceding the effective date of CAFA. Most of the opinion centers on Missouri state law, since state law controls whether an amended petition relates back to the original petition. However, the panel referenced Rule 15(c) of the Federal Rules of Civil Procedure, since the applicable Missouri rule was derived from Rule 15(c), for guidance in determining whether the amendment related back to the original petition. The fact that the amended pleading added a new plaintiff rather than a new defendant presented an unusual angle, the Eighth Circuit observed, but the twist did not change the court’s analysis since Rule 15 is extended to the addition of plaintiffs by analogy, per the advisory committee’s notes following Rule 15.
Conducting his analysis according to the blueprint provided by Missouri Rule 55.33 and Fed. R. Civ. P. 15, Judge Benton addressed the question of whether the claim asserted in the amended pleading arose out of the same conduct, transaction, or occurrence as that set forth in the original pleading. Further, if the amended claim did arise out of the same occurrence, the original complaint must have given the defendant sufficient notice of the amended claim, and amendment of the claim must not result in prejudice to the defendant. Although Merck argued that Plubell’s claim did not arise out of the same conduct, transaction or occurrence since the original representative did not have a colorable claim, the court concluded that the true inquiry is whether the amended claim arises out of the same conduct, transaction, or occurrence set forth in the complaint. The court reasoned that whether the original representative purchased a Merck product was inconsequential — the complaint set forth that she did, and therefore, Merck had notice of the amended claim. Moreover, the court concluded that Merck would suffer no prejudice by allowing the petition to be amended, since the amended pleadings were identical to the original. Thus, Judge Benton concluded, “Merck was in no way prejudiced by the identical allegations in the amended pleadings.”
At the end, Merck threw up a “Hail Mary” last-ditch attempt to stay in federal court –that CAFA conferred on Merck a “right” to be in federal court. Judge Benton quickly dismissed this argument (perhaps between chuckles), stating, “While some defendants may benefit by having their cases in federal instead of state court, this is not a stated purpose of the Act.”
Editor’s Note: The issue of when an action is “commenced” under the Class Action Fairness Act has been the subject of heavy litigation at the district court level. With Friday’s decision, the Eighth Circuit joins the Seventh, Ninth and Tenth Circuits as having addressed the CAFA commencement issue. For coverage of other U.S. Circuit Court of Appeals decisions, see earlier CAFA Law Blog posts discussing these cases, including: the Seventh Circuit’s rulings in Pfizer v. Lott, 417 F.3d 725, (7th Cir. 2005), Schillinger v. Union Pacific Railroad Co., 425 F.3d 330 (7th Cir. 2005), and Knudsen v. Liberty Mutual Insurance Co., 411 F. 3d 805 (7th Cir. 2005); the Ninth Circuit’s decision in Bush v. Cheaptickets, Inc., 425 F.3d 683 (9th Cir. 2005); and the Tenth Circuit’s decision in Pritchett v. Office Depot, Inc., 420 F.3d 1090 (10th Cir. 2005).