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

Plaintiffs Are Permitted To File Several Separate Cases, Each Containing Fewer Than 100 Plaintiffs, To Avoid Removal As A Mass Action Under CAFA

Posted in Case Summaries

Johnson v. Bayer Healthcare, LLC, et al., No. 4:17-cv-01533-RLW (E.D. Mo. Nov. 29, 2017).

In this action, while granting the plaintiffs’ motion to remand, a district court in Missouri found that the plaintiffs are permitted to avoid CAFA by dividing their plaintiffs into groups of less than 100 and filing an identical complaint for each group.

The plaintiffs brought an action in the Missouri state court against the defendants alleging injuries resulting from the plaintiffs’ use of Essure® permanent birth control system, a contraceptive device manufactured by the defendants.

The defendants removed the action to the federal court on the basis of diversity jurisdiction, federal question jurisdiction, and CAFA. The plaintiffs moved to remand, which the District Court granted.

First, the District Court found that complete diversity did not exist and the plaintiffs’ claims were not fraudulently joined. The District Court also found that it did not have federal question jurisdiction.

Next, the plaintiffs argued that removal under CAFA was not appropriate because the District Court could not consider the pending petitions in Hinton v. Bayer Corp., No. 4:16-cv-01679 (E.D. Mo.) (94 plaintiffs), L. Jordan v. Bayer Corp., No. 4:16-cv-00865 (E.D. Mo.) (94 plaintiffs), Black v. Bayer Corp., No. 4:17-cv-01333 (E.D. Mo.) (95 plaintiffs), Hines v. Bayer Corp., No. 4:17-cv-01395 (E.D. Mo.) (57 plaintiffs), and McClain v. Bayer Corp., 4:17-cv-01534 (E.D. Mo.) (98 plaintiffs) to be tried in conjunction.  The plaintiffs also argued that the District Court could not aggregate those plaintiffs named in separate petition to create federal jurisdiction under CAFA.

The District Court noted that CAFA’s “mass action” jurisdictional provision conferred federal jurisdiction over civil actions in which the amount in controversy exceeded $75,000 and the monetary relief claims of 100 or more persons were proposed to be tried jointly on the ground that the plaintiffs’ claims involved common questions of law or fact.

The defendants contended that the same plaintiffs’ counsel had filed nearly identical complaints on behalf of a total of more than 100 plaintiffs. The defendants thus argued that the plaintiffs should not be permitted to avoid CAFA simply by dividing their plaintiffs into groups of less than 100 and filing an identical complaint for each group.

The District Court, however, found a long line of cases in the Eighth Circuit permitting the plaintiffs to file several separate cases, each containing fewer than 100 plaintiffs, to avoid removal as a mass action under CAFA. The District Court opined that the plaintiffs had not joined 100 or more plaintiffs in a single complaint, nor they attempted to consolidate the Hinton, Jordan, Black, Hines and McClain actions.  The District Court thus held that CAFA did not apply in the instant case and could not form a basis for federal subject matter jurisdiction.

Accordingly, the District Court granted the plaintiffs’ motion to remand.

-Melisa M. Grand