Berry v. Volkswagen of America, Inc., No. 05-1158, 2006 WL 344774 (W.D. Mo. Feb. 15, 2006).
Just in case someone marginally interested in CAFA has been buried under a rock or living in outer space and isn’t quite clear on the current state of “date of commencement” jurisprudence, this recent opinion out of the Western District of Missouri provides a curt refresher. On January 20, 2005, almost a month prior to the effective date of the Class Action Fairness Act, Darren Berry filed this action in Missouri state court, seeking certification of two classes: a nationwide class (save California plaintiffs, who, as everyone knows, are in a world of their own), and a second class consisting only of citizens of Missouri. In both classes, Berry alleged that Volkswagen had engaged in active concealment in connection with the marketing and sale of automobiles with “defective window regulators.” He also asserted a second claim under the Missouri Merchandising Practices Act on behalf of the state class only. As is a fairly regular occurrence in these types of cases, the plaintiff amended his petition on October 20, 2005, adding to the fray an additional named plaintiff as a class representative and a number of California citizens as additional plaintiffs in the nationwide class definition. Seizing on the potential opportunity, Volkswagen, on November 18, 2005, removed the action to federal court, alleging that the amended petition and addition of plaintiffs commenced a new action for the purposes of CAFA.
Missouri U. S. District Judge Ortrie D. Smith was quick off the line as to when an amendment relates back to the original complaint: “Whenever the claim or defense asserted in the amended pleading arises from the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment related back to the date of the original pleading.” Judge Smith also relied heavily on the Eighth Circuit’s recent holding in Plubell v. Merck & Co. (Editor’s Note: See CAFA Law Blog summary posted on January 25, 2006), in which the court held that substituting a new class representative does not necessarily commence a new action under CAFA. Moreover, if a defendant “knew or should have known that it would be required to defend against claims asserted by the newly-added plaintiff,” then the amended petition will relate back to the original filing.
In an effort to distinguish Plubell, Volkswagen argued that it was impossible to know that the class membership would be amended to include thousands of plaintiffs from California, a seemingly logical argument. That argument, however, sputtered when Judge Smith countered that the number of added plaintiffs was of no importance to a relation-back determination, deciding instead that the focus of the relation-back inquiry should be whether the amended petition asserted any new claims of which the defendant did not have notice of at the time of the original filing. He also noted that Volkswagen itself had argued that the same nationwide warranty claims were made in a 2004 California putative class action, so Volkswagen had prior notice that it might have to defend those claims. Finding further that the new petition asserted no new claims, but rather, asserted the exact claims as the original complaint, the court held that the amended petition related back to the pre-CAFA filing date, thus precluding the application of CAFA.
At the final turn, Judge Smith wrecked Volkswagen’s alternative argument that supplemental jurisdiction provided federal jurisdiction for the claims under Exxon v. Allapattah (Editor’s Note: See CAFA Law Blog summary posted on 2005), and remanded the case back to Missouri state court.