Jacqueline Alexander et al v. Bayer Corporation et al

Filing 42

MINUTES (In Chambers): ORDER GRANTING Plaintiffs' Motion to Remand 14 by Judge Michael W. Fitzgerald: The Court ORDERS that this action be REMANDED to the Los Angeles County Superior Court. ( MD JS-6. Case Terminated ) (jp)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-16-6822-MWF (MRW)
Date: November 14, 2016
Title:
Jacqueline Alexander, et al. v. Bayer Corp., et al.
Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge
Deputy Clerk:
Rita Sanchez

Court Reporter:
Not Reported

Attorneys Present for Plaintiff:
None Present

Attorneys Present for Defendant:
None Present

Proceedings (In Chambers): ORDER GRANTING PLAINTIFFS’ MOTION
TO REMAND [14]
Before the Court is Plaintiffs’ Motion to Remand, filed on September 30,
2016. (Docket No. 14). Defendants filed an Opposition to the Motion on October
17, 2016. (Docket No. 19). The Court held a hearing on the Motion on November
7, 2016, and now GRANTS the motion.
I.

BACKGROUND

This case involves seven cases that were originally filed separately in Los
Angeles County Superior Court. All seven cases alleged injuries to the female
plaintiffs as a result on using Essure, a form of birth control manufactured and
distributed by Defendants. Plaintiffs allege that they structured their individual
complaints such that the suit could be heard only in state court, and intentionally
made sure no diversity existed, asserted no federal causes of action, and limited the
plaintiffs in each case to fewer than forty. (Motion at 2).
While Plaintiffs sought to limit the number of individual plaintiffs in each
suit, they did seek to have pretrial proceedings coordinated with all Essure actions
in the state. On August 5, 2016, Plaintiffs joined in a Petition for Coordination
filed with the Judicial Council of California. This Petition specifically stated that
coordination was sought “solely for pretrial purposes.” (Exhibit 1 to Declaration
of Elizabeth Graham, Docket No. 14-2). While this Petition was pending, the Los
Angeles County Superior Court, acting sua sponte, found the seven actions related
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-16-6822-MWF (MRW)
Date: November 14, 2016
Title:
Jacqueline Alexander, et al. v. Bayer Corp., et al.
and consolidated them. (Id., Ex. 2). Plaintiffs then moved to stay all proceedings
until the Petition could be decided by the Judicial Council. (Id., Ex. 3).
Defendants also filed a motion to stay proceedings in Superior Court. (Id., Ex. 4).
On September 1, 2016, Judge Smith of the Alameda County Superior Court
was appointed as the Coordination Motion Judge. Judge Smith then issued an
order staying all actions until the petition was decided. (Id., Exs. 5–7). Four days
later, Defendants removed this action to this Court.
II.

DISCUSSION
A.

Class Action Fairness Act

Defendants’ Notice of Removal asserts jurisdiction under the Class Action
Fairness Act of 2005 (CAFA), 28 U.S.C. § 1332(d). (Notice of Removal at 1).
Under CAFA, the Court has “original jurisdiction of any civil action in which the
matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest
and costs, and is a class action in which” there is minimal diversity. 28 U.S.C. §
1332(d)(2).
As relevant here, CAFA’s “mass action” provision provides for federal
jurisdiction in non-class action cases that involve “monetary relief claims of 100 or
more persons” that are “proposed to be tried jointly . . . .” 28 U.S.C. §
1332(d)(11)(A), (B). The statute specifies that a “‘mass action’ shall not include
any civil action in which . . .(II) the claims are joined upon motion of a defendant; .
. . or (IV) the claims have been consolidated or coordinated solely for pretrial
proceedings.” 28 U.S.C. § 1332(d)(11)(B)(ii). The Ninth Circuit has not ruled on
whether a “state court's sua sponte joinder of claims might allow a defendant to
remove separately filed actions to federal court as a single ‘mass action’ under
CAFA.” Tanoh v. Dow Chem. Co., 561 F.3d 945, 956 (9th Cir. 2009) (expressing
no opinion on this question).
B.

Removal Was Improper

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-16-6822-MWF (MRW)
Date: November 14, 2016
Title:
Jacqueline Alexander, et al. v. Bayer Corp., et al.
All parties agree that most of the requirements of CAFA are satisfied:
minimal diversity is present and the amount-in-controversy requirement is met.
The sole issue before this Court is whether the state court’s sua sponte
consolidation of the cases for trial, issued on August 12, 2016, rendered the cases
removable to federal court under CAFA. This is an open question in the Ninth
Circuit, as the court expressly declined to address the question in Tanoh. 561 F.3d
at 956. Of course, had Plaintiffs proposed to have their cases tried jointly, that
would qualify as a mass action removable under CAFA. 28 U.S.C. §
1132(d)(11)(A), (B). But the text of the statute does not make clear whether a sua
sponte state court consolidation is a “proposal” for the cases to be tried jointly such
that the case becomes removable.
Plaintiffs point to the Seventh Circuit’s opinion in Koral v. Boeing Co., 628
F.3d 945, 946–47 (7th Cir. 2011). There the court “assume[d]” a state court’s
deciding on its own initiative to conduct a joint trial would not enable removal. Id.
The court made clear that this assumption was “answering a question left open in .
. . Tanoh . . . .” Id. The court reasoned that a sua sponte consolidation would not
be a “proposal,” and that because the purpose of the mass action provision was to
prevent plaintiffs from circumventing CAFA, allowing removal in response to a
court’s actions would not make sense. Id. Defendants point out that this was not
the Seventh Circuit’s actual holding in the case, and was not a briefed issue. At the
hearing, Defendants reiterated that the Court should view this case with some
skepticism, given the fact the issue was not briefed. The Court agrees that this
statement was likely dicta, but still takes note of the Seventh Circuit’s reasoning on
the issue.
CAFA specifically excludes from federal jurisdiction cases that are “joined
upon motion of a defendant,” again focusing on the actions of plaintiffs. 28 U.S.C.
§ 1332(d)(11)(B)(ii)(II). The Ninth Circuit has held that plaintiffs are “masters of
their complaint,” such that structuring complaints to avoid triggering CAFA
jurisdiction is allowable. See Tanoh, 561 F.3d at 953 (affirming the remand of a
case involving seven groups of plaintiffs, each with less than 100 people, but
totaling more than 100 people combined). The Ninth Circuit also described the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-16-6822-MWF (MRW)
Date: November 14, 2016
Title:
Jacqueline Alexander, et al. v. Bayer Corp., et al.
mass action provision of CAFA—as opposed to the class action provisions—as
“fairly narrow.” Id. Plaintiffs argue that the Ninth Circuit’s pronouncements on
the mass action clause, combined with the Seventh Circuit’s decision on this
specific issue, show that remand is proper here.
Defendants point out that there is no express limitation of “proposals” to
those coming from plaintiffs in mass actions. At the hearing, Defendants placed
emphasis on this argument. They correctly note that Congress could have inserted
such a limitation had it intended to exclude sua sponte consolidations by state
courts from CAFA’s jurisdictional grant. (Opposition at 3). Defendants also cite
to the Eleventh Circuit’s definition of “propose,” which was cited positively by the
Ninth Circuit: “‘Propose’ means ‘to form or declare a plan or intention’ or ‘to offer
for consideration, discussion, acceptance, or adoption.’” Scimone v. Carnival
Corp., 720 F.3d 876, 881 (11th Cir. 2013) (quoting Webster’s Third New
International Dictionary 1819 (2002)). Defendants argue that by joining the cases
here, the state court “declared a plan or intention” to try the cases together.
(Opposition at 4).
A straightforward reading of the statute’s text leads the Court to reject
Defendants’ arguments. As Plaintiffs argue, courts do not typically “propose” or
“offer,” they issue orders or mandates that the parties must follow. Notably,
Defendants point to no case in which a court has described judicial actions as
“proposals.” An “order,” on the other hand, is defined as a “command, direction,
or instruction.” Black’s Law Dictionary (10th ed. 2014). This definition fits more
closely with the common understanding of judicial actions, and describes the state
court’s consolidation of the cases here. Plaintiffs did not propose that the cases be
consolidated in state court, nor would they have any say in the matter once the
state court ordered the consolidation. The state court did not propose consolidation
and then ask for the parties’ thoughts or responses. Rather, it issued an order
consolidating the cases and assigning them to a single judge.
Under no standard definition would this qualify as a proposal. Indeed, Ninth
Circuit cases discussing the mass action clause seem to contemplate such proposals
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-16-6822-MWF (MRW)
Date: November 14, 2016
Title:
Jacqueline Alexander, et al. v. Bayer Corp., et al.
coming only from parties, not the court itself. See, e.g., Corber v. Xanodyne
Pharmaceuticals, Inc., 771 F.3d 1218, 1223 (9th Cir. 2014) (“Tanoh v. Dow
Chemical Co. holds, consistent with the plain language of CAFA, that the proposal
to try claims jointly must come from the plaintiffs, not from the defendants.”).
Because courts issue orders, not proposals, this view of “proposal” makes sense.
And because CAFA does not allow removal for cases consolidated by order or
mandate, this Court does not have jurisdiction here.
The Court notes another district court to address this issue seems to have
arrived at the same conclusion. See Time Ins. Co v. Astrazeneca AB, 52 F. Supp.
3d 705, 715 (E.D. Pa. 2014) (“The Defendants point to the fact that the
Philadelphia County Court of Common Pleas was likely to ‘exercise its discretion
to join the claims sua sponte.’ This is not enough to say that the Plaintiffs were
proposing that their claims be tried together based on the uncertain possibility that
this could happen if both claims were filed in state court. This action should not be
considered a ‘mass action’ under CAFA.”). This holding also seems to
contemplate that only parties can make “proposals.”
In addition, the Court noted at the hearing that Defendants do not argue or
point to any California precedent or rules of court that rendered it a foregone
conclusion that consolidation would occur. In fact, Defendants’ counsel at the
hearing reasoned that the lack of precedent on this issue might be due to the fact
that consolidation is a rare occurrence in California courts.
Ninth Circuit case law also leads this Court to conclude that the mass action
provision should be read narrowly, and that remand is appropriate here. The Ninth
Circuit has repeatedly held that Plaintiffs are masters of their complaint, and that
strategic filing of separate complaints in state court does not automatically create
jurisdiction under CAFA. See, e.g., Tanoh, 561 F.3d at 953. The Ninth Circuit has
also stated that the mass action provision as a whole is “fairly narrow.” Id.;
Corber, 771 F.3d at 1222 (describing mass actions provision as narrow). Taken
together, the Court agrees with Plaintiffs that a state court’s sua sponte
consolidation of cases should not automatically entitle Defendants to federal
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-16-6822-MWF (MRW)
Date: November 14, 2016
Title:
Jacqueline Alexander, et al. v. Bayer Corp., et al.
jurisdiction notwithstanding Plaintiffs’ attempts to remain in state court. This case
is not a mass action removable under CAFA.
III.

CONCLUSION

The Court concludes that this case is not a “mass action” within the
definition of CAFA, and that it must therefore be remanded to the state court. The
state court’s sua sponte consolidation of the cases is not a proposal to have the
cases tried jointly. Instead, it is a judicial mandate. Given the narrow reading
courts apply to CAFA’s mass action provision, the Court will not read the word
“propose” in such a broad manner.
In making this decision, the Court is mindful that “no antiremoval
presumption attends cases involving CAFA.” Dart Cherokee Basin Operating Co.
v. Owens, 135 S. Ct. 547, 554 (2014).
Because the Court concludes that it has no jurisdiction under CAFA, the
Court does not address Plaintiffs’ other argument for removal concerning the stay
ordered by the state court.
The Court ORDERS that this action be REMANDED to the Los Angeles
County Superior Court.
IT IS SO ORDERED.

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