Aiona v. Bayer-Healthcare Pharm., Inc., 2015 WL 293496 (N.D. Cal. Jan. 20, 2015)

Where a petition for coordination unequivocally stated that coordination was sought only for pre-trial purposes and not for a joint trial, a district court in California found that the actions did not qualify as a mass action under CAFA.

Plaintiffs filed a Joint Petition for Coordination (the “Joint Petition”) under California Code of Civil Procedure § 404.1, seeking to coordinate 7 similar actions brought against the same defendant.  The plaintiffs made clear in their Joint Petition that they did not seek a joint trial, but rather were limiting their request for coordination to pre-trial purposes only.

Defendant sought removal under CAFA, contending that the Joint Petition was sufficient to invoke the “mass action” provision of CAFA, defined as any civil action in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.

Here, the only question posed was whether the Joint Petition represented a proposal to try the various actions jointly, or whether, as plaintiffs maintained, it was merely a request for coordination for pre-trial purposes. Although § 404.1 refers to coordination of civil actions being appropriate if  “one judge hearing all of the actions for all purposes” would promote the ends of justice, courts have recognized the possibility of coordination for pre-trial purposes only.  See e.g. Gutowski v. McKesson Corp., 2013 WL 675540 (Feb. 25, 2013). A petition for coordination when subject to removability must be carefully assessed to determine whether, in language or substance, the petition proposes a joint trial. Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218 (9th Cir.2014) (en banc). In Corber, although the petition did not expressly request a joint trial, the court held that where it sought coordination for “all purposes,” and where it listed the danger of inconsistent judgments and conflicting determinations of liability as reasons for coordination, the petition, in substance, was requesting joint trial. Corber, 771 F.3d at 1223-24.

In the present case, even though the language of the Joint Petition was nearly identical to the petition in Corber, the court held that the explicit references limiting coordination “for pre-trial purposes only” was sufficient to conclude that the petitioners did not propose joint trials, only consolidation of pre-trial proceedings. Accordingly, the Court concluded that the included actions did not qualify as a removable mass action under CAFA, and remanded them to state court.