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

Plaintiffs Can Avoid Mass Action Jurisdiction Under CAFA By Artificially Splitting Cases Into Groups of Fewer Than 100 Plaintiffs

Posted in Case Summaries

Jordan v Bayer Corporation, 2017 WL 1909059 (E.D. Mo. May 10, 2017).

In granting plaintiffs’ motion to remand, a Missouri District Court held that the Class Action Fairness Act did not apply where state court plaintiffs with common claims against a common defendant filed separate cases with fewer than 100 plaintiffs each to avoid federal jurisdiction under CAFA, where there was nothing in any case’s record that the plaintiffs proposed to try their separate cases jointly.

In this matter ninety-nine plaintiffs brought an action in the Circuit Court of the City of St. Louis, Missouri, seeking damages for injuries sustained as a result of the implantation and use of Essure, a contraceptive device manufactured by the defendants.  This is one of the several cases filed against the defendants, all of which removed to the Eastern District of Missouri. But, the District Court has consistently remanded those cases back to the state court.  (Editors’ Note: See the CAFA Law Blog analysis of Mcpeters v. Bayer Corp., posted on May 12, 2017).

The defendants removed this case to federal court based on diversity jurisdiction, federal question jurisdiction, and CAFA’s mass action jurisdiction.  The plaintiffs moved to remand, arguing that the parties were not diverse, there was no federal question presented, and the action did not contain 100 or more plaintiffs to confer jurisdiction under CAFA. The District Court agreed with the plaintiffs and remanded the case.

Although the instant case involved only ninety-nine plaintiffs, the defendants argued that it should be considered along with other similar Essure cases filed in the Eastern District of Missouri to form a single mass action involving more than 100 plaintiffs.  The defendants argued that those cases were part of the same mass action because the complaints contained the same substantive allegations, alleged the same causes of action, were filed by the same counsel, and were filed in the same jurisdiction.  The defendants contended that the plaintiffs could not avoid removal under CAFA by artificially separating their plaintiffs into groups of fewer than 100 plaintiffs.

The District Court found that the instant case did not involve the claims of 100 or more persons, and there was no indication in the record that the case would be consolidated or that the plaintiffs wished to have the case tried jointly with any other cases.  The District Court further found that the fact that there was nothing in the record to suggest that the plaintiffs had made any attempt to consolidate the case with any other Essure cases against the defendants distinguished the case from the Eighth Circuit’s decision in Atwell v. Boston Scientific Corp., 740 F.3d 1160 (8th Cir. 2013).

In Atwell, the Eighth Circuit recognized that state court plaintiffs with common claims against a common defendant may bring separate cases with fewer than 100 plaintiffs each to avoid federal jurisdiction under CAFA unless plaintiffs proposed to try their separate cases jointly.  (Editors’ Note: See the CAFA Law Blog analysis of Atwell posted on September 19, 2014).

The District Court opined that the defendants’ suggestion that even though the plaintiffs had made no attempt to consolidate the cases, it should nevertheless treat all of the Essure cases filed by the same lawyers as one action, contravenes both the letter and the spirit of the mass action provisions of CAFA, and has been repeatedly rejected by courts in the Eastern District of Missouri.

The District Court thus concluded that CAFA could not form a basis for subject matter jurisdiction, and accordingly, granted the plaintiffs’ motion to remand.

Nicholas Kopcho