Barden v. Hurd Millwork Company, No. 06-C-46, 2006 WL 2560109 (E.D. Wis. Sep. 5, 2006)

·  You have the right to remove a case over which the federal courts would have original jurisdiction. 

·   You have the right to remove a putative class action commenced on or after February 18, 2005. 

·   Anything your opponent adds to the lawsuit on or after this date can and will be used to confer jurisdiction under CAFA.

No doubt these words will be uttered by Horatio Caine on the next episode of CSI:  Miami.

This is the nutshell summary of the jurisdiction portion of the Eastern District of Wisconsin’s recent decision in Barden v. Hurd Millwork Company.  If you are real lover of the law, you can read the rest of the case on your own. 

Barden, representing a putative class of consumers, filed a lawsuit against Hurd Millwork, a manufacturer and distributor of gas-filled insulated glass products. A product which I am sure we all use in our everyday lives. Barden claimed Hurd Millwork breached warranties and misrepresented the quality of its products. Barden filed the lawsuit in April 2004. In December 2005, Barden amended the complaint, naming new defendants and adding new claims. One of the new defendants removed the case under CAFA. Then, some of the other of the new defendants filed a Rule 12(b)(6) motion to dismiss claims against them.

There was no objection to jurisdiction from any party. Nevertheless, citing its duty to police its own jurisdiction (and maybe looking for fame and notoriety from mention in the CAFA Law Blog), Judge Lynn Adelman investigated whether subject matter jurisdiction existed. The Court rounded up the usual suspects from the Seventh Circuit: Brill v. Countrywide Homes, Inc., Knudsen v. Liberty Mutual Inc. (“Knudsen I”), Knudsen v. Liberty Mutual Inc. (“Knudsen II”). (Editors’ Note:  See the CAFA Law Blog analyses posted of these three cases on November 2, 2005; September 3, 2005; and January 30, 2006). In light of these precedents and the uncontested evidence showing Barden had added new parties and new claims after CAFA’s effective date, it was an open and shut case. The lawsuit was held for questioning (and all further proceedings) in federal court.

The decision went on to demonstrate the consequences of the long arm of the (CAFA) law reaching out to grab a lawsuit. Addressing the merits of the motion to dismiss, Judge Adelman rejected Barden’s argument that a previous similar motion denied by the state court was law of the case. Characterizing the law of the case doctrine as “only a presumption, not a straightjacket,” and “quite flexible…authorizing a federal court to revise a non-final decision at any time,” the Court discarded the presumption and considered the basis of the motion. Then, switching from good cop to bad cop (or vice versa, depending on your perspective), the Court nevertheless rejected the defendant’s bid for dismissal of one part of the lawsuit.

The CAFA inquiry in this case ended almost as soon as it began. Although the Court released Brill, Knudsen I and Knudsen II on their own recognizance, they should not leave town. They may be needed for further questioning.