Caouette et al v. Bristol-Myers Squibb Company et al

Filing 56

ORDER by Judge Edward M. Chen Granting Plaintiffs' Motion to Remand (Docket No. 25 in case 3:12-cv-01814-EMC). (emcsec, COURT STAFF) (Filed on 8/10/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES CAOUETTE, et al.,

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For the Northern District of California

United States District Court

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Plaintiffs,
v.
BRISTOL-MYERS SQUIBB COMPANY, et
al.,

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Defendants.
___________________________________/

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__________________________________/

RELATED TO
No. C-12-1815 EMC
No. C-12-1816 EMC
No. C-12-1818 EMC
No. C-12-1819 EMC
No. C-12-1820 EMC
No. C-12-1821 EMC
No. C-12-1822 EMC

AND ALL RELATED ACTIONS.

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No. C-12-1814 EMC

ORDER GRANTING PLAINTIFFS’
MOTION TO REMAND

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Currently pending before the Court are eight related cases in which the Plaintiffs have sued

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Bristol-Myers Squibb Company and McKesson Corporation. In each case, the Plaintiffs make

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essentially the same exact allegations and the same exact claims. In each case, Bristol-Myers

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removed and, subsequently, the plaintiffs filed a motion to remand.1 The arguments in the motions

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The cases and the docket numbers for the motions to remand are provided below.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

No. C-12-1814 EMC Caouette (Docket No. 25)
No. C-12-1815 EMC Anderson (Docket No. 17)
No. C-12-1816 EMC Bryan (Docket No. 14)
No. C-12-1818 EMC Applen (Docket No. 20)
No. C-12-1819 EMC Adams (Docket No. 16)
No. C-12-1820 EMC Alexander (Docket No. 16)
No. C-12-1821 EMC Bales (Docket No. 16)
No. C-12-1822 EMC Ailes (Docket No. 16)

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to remand are all the same. For ease of reference, the Court shall cite to the parties and papers in the

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Caouette case (the lowest-numbered case) only.

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Having considered the parties’ briefs, including all supplemental briefing, as well as the oral
argument of counsel, the Court hereby GRANTS the motions to remand.

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I.

FACTUAL & PROCEDURAL BACKGROUND

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In their complaint, the Caouette Plaintiffs (91 individuals total) allege as follows.

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Plavix is a drug that was designed and manufactured by Bristol-Myers and marketed, sold,

cardiovascular benefits than aspirin and was also easier on a person’s stomach. See Compl. ¶ 111.

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In fact, Plavix was not more efficacious than aspirin in preventing heart attacks and strokes; further,

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For the Northern District of California

and distributed by McKesson. See Compl. ¶ 1. Defendants represented that Plavix provided greater

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United States District Court

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there were risks in taking Plavix, including suffering a heart attack stroke, internal bleeding, and

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death. See Compl. ¶ 112. Defendants knew or should have known of both of these things. See

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Compl. ¶¶ 111-12. The Caouette Plaintiffs suffered damages arising from their use of Plavix as

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designed and manufactured by Bristol-Myers and marketed, sold, and distributed by McKesson. See

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Compl. ¶ 1.

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Based on, inter alia, the above allegations, the Caouette Plaintiffs have asserted the

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following claims: (1) strict products liability – design defect; (2) strict products liability –

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manufacturing defect; (3) negligence; (4) breach of implied warranty; (5) breach of express

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warranty; (6) deceit by concealment; (7) negligent misrepresentation; (8) fraud by concealment; (9)

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violation of California Business & Professions Code § 17200; (10) violation of California Business

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& Professions Code § 17500; (11) violation of California Civil code § 1750 (the Consumer Legal

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Remedies Act); and (12) loss of consortium.2

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The Caouette Plaintiffs filed their lawsuit against Defendants in March 2012. Bristol-Myers

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subsequently removed the case to federal court, apparently before McKesson made any appearance

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in the action. As of date, McKesson has yet to make an appearance in this lawsuit.

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The claim for loss of consortium has been brought by only those plaintiffs who were
spouses of persons who ingested Plavix. See Compl. ¶ 225.

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II.
A.

DISCUSSION

Legal Standard

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A defendant may remove an action to federal court based on
federal question jurisdiction or diversity jurisdiction. However, “‘[i]t
is to be presumed that a cause lies outside [the] limited jurisdiction [of
the federal courts] and the burden of establishing the contrary rests
upon the party asserting jurisdiction.’” The “strong presumption
against removal jurisdiction means that the defendant always has the
burden of establishing that removal is proper,” and that the court
resolves all ambiguity in favor of remand to state court.

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Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009).

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In the instant case, Bristol-Myers argues the following: (1) There is diversity jurisdiction
over the Caouette action (and the other seven related cases) because the Caouette Plaintiffs

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For the Northern District of California

United States District Court

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fraudulently joined McKesson to the lawsuit; and (2) there is subject matter jurisdiction over the

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Caouette action (and the other seven related cases) by virtue of the Class Action Fairness Act

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(“CAFA”). Bristol-Myers also makes an argument specific the Bryan case alone, i.e., there is

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diversity jurisdiction once the Court ignores the citizenship of some of the plaintiffs in the action.

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Each of these contentions is addressed below.

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B.

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Diversity Jurisdiction – Fraudulent Joinder
Some of the Caouette Plaintiffs are citizens of California and McKesson is in part a citizen

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of California as well. Thus, as a facial matter, there can be no diversity jurisdiction in the Caouette

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action (i.e., no complete diversity). Bristol-Myers contends, however, that the Court should ignore

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the citizenship of McKesson because the Caouette Plaintiffs fraudulently joined the company to the

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lawsuit.

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The Ninth Circuit has specified that “[j]oinder is fraudulent [i]f the plaintiff fails to state a

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cause of action against a resident defendant, and the failure is obvious according to the settled rules

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of the state.” Id. (internal quotation marks omitted); see also Morris v. Princess Cruises, Inc., 236

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F.3d 1061, 1068 (9th Cir. 2001) (stating that, “[i]n light of [plaintiff’s] own admission, it is

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abundantly obvious that she could not possibly prevail on her negligent misrepresentation claim

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against Consultants”); Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992) (stating

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that, “[t]o prove their allegation of fraudulent joinder [the defendants] must demonstrate that there is

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Or, as stated in the Moore’s treatise, “[j]oinder will not be deemed fraudulent unless there clearly

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can be no recovery under state law on the cause alleged or on the facts as they exist when the

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petition to remand is heard.” 15-102 Moore’s Fed. Prac. – Civ. § 102.21[5][a]. In the case at bar,

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Bristol-Myers maintains that it is obvious that the Caouette Plaintiffs have no viable state claims

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against McKesson because (1) those state claims are all preempted pursuant to the Supreme Court’s

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decision in Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011); and (2) the Caouette Plaintiffs have failed

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to allege that they ingested Plavix that was actually distributed by McKesson, as opposed to another

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company.

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1.

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For the Northern District of California

no possibility that Dodson would be able to establish a cause of action against them in state court”).

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United States District Court

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Mensing is a case involving impossibility preemption. There, the Supreme Court held that

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state law claims for failure to warn, which were asserted against generic drug manufacturers, were

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preempted because generic drug manufacturers had a federal duty to make sure the labels for their

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generic drugs were the same as the labels for the brand name drugs and therefore they could not

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make any additional or different warnings as required by state law.

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Preemption

Here, Bristol-Myers argues that impossibility preemption should also apply. Bristol-Myers

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contends that the claims here are, in essence, state law claims for failure to warn but that McKesson,

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as distributor, could not change the labels on the drugs3 to make additional or different warnings as

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required by state law; otherwise, it would be subject to civil or criminal penalties under federal law.

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In addressing Bristol-Myers’s argument, the Court must first begin with its contention that

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the claims asserted by the Caouette Plaintiffs amount to claims for failure to warn. While some of

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the claims are fairly characterized as such (e.g., fraud by concealment and violation of § 172004),

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In Mensing, the Supreme Court deferred to the Food & Drug Administration’s position that
a “Dear Doctor” letter – i.e., a letter that provides a warning to physicians and other healthcare
professionals – also constitutes labeling. See Mensing, 131 S. Ct. at 2576.
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In the fraud-by-concealment claim, the Caouette Plaintiffs allege that “Defendants had the
duty and obligation to disclose to Ingesting Plaintiffs and to their physicians and healthcare
providers the true facts concerning Plavix, which facts include . . . the fact that concurrent use with
aspirin would cause serious bodily injuries, including . . . serious abnormal bleeding, TTP, and
death.” Compl. ¶ 194.

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there are also claims that cannot be so characterized, in particular, the claim for strict liability based

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on a design defect. Under California law, there are two

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two alternative tests for identifying a design defect: first, whether the
product performed as safely as an ordinary consumer would expect
when used in an intended and reasonably foreseeable manner and,
second, whether on balance the benefits of the challenged design
outweighed the risk of danger inherent in the design.

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Anderson v. Owens-Corning Fiberglas Corp., 53 Cal. 3d 987, 995 (1991). Clearly, under either test,

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a failure to warn is immaterial.

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In response, Bristol-Myers argues that the design defect claim clearly has no viability, and
therefore this points to fraudulent joinder. See Docket No. 49 (Def.’s Supp. Br. at 6). In support of
this argument, it cites to Brown v. Superior Court, 44 Cal. 3d 1049 (1988). There, the California

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For the Northern District of California

United States District Court

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Supreme Court “decline[d] to hold . . . that a drug manufacturer’s liability for injuries caused by the

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defective design of a prescription drug should be measured by the standard set forth [above].” Id. at

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1065. Instead, it held that “a manufacturer is not strictly liable for injuries caused by a prescription

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drug so long as the drug was properly prepared and accompanied by warnings of its dangerous

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propensities that were either known or reasonably scientifically knowable at the time of

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distribution.” Id. at 1069. Significantly, the Court decided to impose the less harsh standard for

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liability because of policy concerns. It explained that imposition of the harsher standard would

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hamper the development and marketing of beneficial new drugs – e.g., because to make a safer drug,

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the manufacturer may have to withhold the drug “from the market until scientific skill and

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knowledge advanced to the point at which additional dangerous side effects would be revealed.” Id.

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at 1063. The Court also noted that,

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In the § 17200 claim, the Caouette Plaintiffs allege that Defendants “[r]epresent[ed] that
Plavix is safe, fit, and effective for human consumption, knowing that said representations were
false, and concealing that Plavix products had a serious propensity to cause injuries to users.”
Compl.¶ 203(a). The Caouette Plaintiffs also allege that Defendants improperly “refrain[ed] from
taking any action that would provide prescribing physicians with appropriate information and
protect patients who ingest or use their drugs . . . , such as failing to . . . updat[e] labels and timely
and properly implement[] label changes” and failing to “tak[e] appropriate action to disseminate to
prescribing physicians and healthcare providers appropriate and permitted product information and
labels concerning safety issues and safe prescribing practices for their products.” Compl. ¶ 203(e).

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[i]f drug manufacturers were subject to strict liability, they
might be reluctant to undertake research programs to develop some
pharmaceuticals that would prove beneficial or to distribute others that
are available to be marketed, because of the fear of large adverse
monetary judgments. Further, the additional expense of insuring
against such liability – assuming insurance would be available – and
of research programs to reveal possible dangers not detectable by
available scientific methods could place the cost of medication beyond
the reach of those who need it most.

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Id. Although, on its face, Brown addressed liability of prescription drug manufacturers, the same

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policy concerns would be equally applicable to distributors of such drugs. Neither party has

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submitted any authorities holding drug distributors should be treated any differently from drug

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manufacturers under Brown.
While the Court does not necessarily disagree with Bristol-Myers’s contention that Brown

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For the Northern District of California

United States District Court

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makes a design defect claim against McKesson unavailable, Bristol-Myers fails to take into account

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that Brown would also make a design defect claim against it unavailable. In other words, this is a

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“unique situation when the same analysis applied to an assertion of fraudulent joinder applies to all

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defendants.” Hunter, 582 F.3d at 1044. The Ninth Circuit has explained that,

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“[i]n such cases, it makes little sense to single out the in-state
defendants as ‘sham’ and call their joinder improper. In such
circumstances, the allegation of improper joinder is actually an attack
on the merits of plaintiff’s case as such – an allegation that . . . ‘the
plaintiff’s case [is] ill founded as to all the defendants.’”

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Id. at 1044-45 (quoting Smallwood v. Illinois Central R.R. Co., 385 F.3d 568, 574 (5th Cir. 2004)

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(en banc)). The merits issue then, as applied to all defendants, is one for the state court to decide.

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See id. at 1045; see also Smallwood, 385 F.3d at 575 (stating that, “[w]hen the only proffered

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justification for improper joinder is that there is no reasonable basis for predicting recovery against

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the in-state defendant, and that showing is equally dispositive of all defendants rather than to the in-

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state defendants alone, the requisite showing has not been made”). Thus, under Hunter, the state

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court – and not this Court – must decide the merits issue of whether Brown is a bar to the claims

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against both Bristol-Myers and McKesson alike.

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The Court acknowledges that Bristol-Myers has made a secondary argument – i.e., that, even

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if a design defect claim were not precluded by Brown, impossibility preemption under Mensing

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would still apply to the claim, thus establishing fraudulent joinder of McKesson. See Docket No. 46

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(Def.’s Supp. Br. at 6). The preemption argument would be applicable to McKesson alone, and not

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Bristol-Myers. However, Bristol-Myers has, as an initial matter, put at issue the viability of the

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design defect claim on a basis that is applicable to both McKesson and it alike. Thus, Bristol

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Myers’s secondary argument does not obviate the Hunter problem.

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Even if the Court were to reach the merits of the preemption claim, it is not obvious that

any such claim; it involved a failure-to-warn claim. While some district courts have held that

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Mensing impossibility preeemption applies not only to a failure-to-warn claim but also to a design

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defect claim, see, e.g., In re Pamidronate Prods. Liab. Litig., No. 09–MD–2120(KAM)(SMG), 2012

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WL 272889, at *3 (E.D.N.Y. Jan. 30, 2012); In re Fosamax Prods. Liab. Litig. (No. II), No. Civ. 08-

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For the Northern District of California

Mensing impossibility preemption would apply to a design defect claim. Mensing did not involve

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United States District Court

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008 (GEB-LHG), 2011 WL 5903623, at *6 (D.N.J. Nov. 21, 2011), the First Circuit has declined to

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so extend Mensing. See Bartlett v. Mutual Pharm. Co., 678 F.3d 30, 38 (1st Cir. 2012)

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(“conclud[ing] that the [Supreme] Court adopted a general no-preemption rule in Wyeth [v. Lane,

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555 U.S. 555 (2009)] and that it is up to the Supreme Court to decide whether [Mensing’s] exception

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is to be enlarged to include design defect claims [against generic manufacturers]”); see also

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Halperin v. Merck, Sharpe & Dohme Corp., No. 11 C 9076, 2012 U.S. Dist. LEXIS 50549 (N.D. Ill.

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Apr. 10, 2012) (explaining why design defect claims might be treated differently from failure-to-

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warn claims, particularly outside of the generic drug context).

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Accordingly, remand is required under Hunter.5

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2.

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Bristol-Myers argues that, even if the state-law claims against McKesson are not preempted

Allegations Regarding McKesson’s Distribution of Plavix to Caouette Plaintiffs

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pursuant to Mensing, the Caouette Plaintiffs still have no viable claims against McKesson because

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they have not specifically alleged that the Plavix they ingested was actually distributed by

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McKesson, as opposed to another company.

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In view of this conclusion, the Court need not reach the question whether Mensing
preempts the failure-to-warn claim against McKesson.

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The Court rejects this argument as well. While the Caouette Plaintiffs could have made

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clearer allegations to that effect, the allegations that they have in the complaint are enough. They

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have alleged:

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This action involves claims of personal injury, economic damages,
punitive damages, and other claims of damage arising from the use of
Plavix, a pharmaceutical compound researched, designed, formulated,
compounded, tested, manufactured, produced, processed assembled,
inspected, distributed, marketed, labeled, promoted, packaged,
advertised for sale, prescribed[,] or otherwise placed in the stream of
commerce by Defendant BRISTOL-MYERS SQUIBB COMPANY
(“BMS”) and marketed, sold, and distributed by Defendant
MCKESSON CORPORATION (“McKesson”) . . . .

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Compl. ¶ 1 (emphasis added). As indicated by the language italicized above, the Caouette Plaintiffs

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have alleged that their damages arose from their use of Plavix distributed by McKesson.

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For the Northern District of California

United States District Court

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The fact that Plavix has distributors other than McKesson (approximately twenty) is not

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controlling. See Docket No. 5 (May Decl. ¶ 3) (testifying that Bristol-Myers “has at least twenty

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wholesale distributors of Plavix throughout the United States, and five in California alone, including

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McKesson Corporation[;] McKesson is one of many – not the exclusive – distributors of Plavix to

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pharmacies, healthcare facilities, and hospitals”). The Caouette Plaintiffs are not required to sue all

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distributors.

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C.

Diversity Jurisdiction in Bryan Action

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As to the Bryan action alone, Bristol-Myers advances one additional argument in favor of

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diversity jurisdiction. More specifically, Bristol-Myers notes that, in the Bryan case, some of the

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plaintiffs are citizens of New York, just as Bristol-Myers is (in part) a citizen of New York; thus,

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there is no complete diversity. Bristol-Myers contends, however, that the New York citizens should

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be ignored for purposes of evaluating diversity jurisdiction because they were “fraudulently

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misjoined.” Opp’n at 13. Fraudulent – also known as procedural misjoinder –

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focuses on whether the jurisdictional spoiler has been properly joined
under state or federal joinder rules. The doctrine provides that federal
courts may sever an improperly joined party before assessing the
propriety of removal. If the remaining properly joined parties are
completely diverse, the court retains that portion of the case and
remands the rest of the case to state court.

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In re Yasmin & Yaz Mktg., Sales Pracs. & Prods. Liab. Litig., 779 F. Supp. 2d 846, 853 (S.D. Ill.

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2011).

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The doctrine of fraudulent misjoinder appears to have first been articulated by the Eleventh

Wright, et al., Fed. Prac. & Proc. § 3723. “Affirming the district court, the Eleventh Circuit found

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that the factual commonality among the claims of the plaintiffs against the different classes of

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defendants was insufficient to satisfy Federal Civil Rule 20,[6] and thus some defendant classes were

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misjoined.”7 Id. The court noted that procedural misjoinder could be “‘just as fraudulent as the

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joinder of a resident defendant against whom a plaintiff has no possibility of a cause of action. A

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defendant’s “right of removal cannot be defeated by a fraudulent joinder of a resident defendant

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For the Northern District of California

Circuit in Tapscott v. MS Dealer Service Corporation, 77 F.3d 1353, 1360 (11th Cir. 1996). See

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United States District Court

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having no real connection with the controversy.”’” Id. While Tapscott involved the procedural

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misjoinder of a defendant, other courts have subsequently applied the doctrine to cover any

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procedural misjoinder, which includes a plaintiff fraudulently misjoining a nondiverse plaintiff in

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order to defeat diversity jurisdiction. See id. (citing In re Rezulin Prods. Liab. Litig., 168 F. Supp.

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2d 136, 148 (S.D.N.Y. 2001) (finding misjoinder of plaintiffs and severing misjoined plaintiffs for

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purposes of maintaining the defendants’ right to removal of the remainder of the action)).

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Several district courts have followed Tapscott and its progeny. See Prempro, 591 F.3d at

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621(citing cases); In re Yasmin & Yaz, 779 F. Supp. 2d at 854 (citing cases). The Fifth Circuit also

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seems to have indicated agreement with Tapscott. See Crockett v. R.J. Reynolds Tobacco Co., 436

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F.3d 529, 533 (5th Cir. 2006). But other than the Eleventh and Fifth Circuits, no other circuit court

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has adopted the fraudulent misjoinder doctrine. The Ninth Circuit, for example, has acknowledged

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Federal Rule of Civil Procedure 20 governs permissive joinder. “Persons . . . may be
joined in one action as defendants” so long as “(A) any right to relief is asserted against them
jointly, severally, or in the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to
all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2).
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The Court notes that “[w]hether the federal or state rules on joinder apply has . . . received
conflicting results post-Tapscott.” In re Prempro Prods. Liab. Litig., 591 F.3d 613, 622 n.6 (8th Cir.
2010). It appears that “most courts looking at this issue have applied the state rule. This seems the
better choice since the question is whether the parties were misjoined in state court.” Osborn v.
Metro. Life Ins. Co., 341 F. Supp. 2d 1123, 1128 (E.D. Cal. 2004).

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See California Dump Truck Owners Ass’n v. Cummins, Engine Co., Inc., 24 Fed. Appx. 727, 729

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(9th Cir. 2001) (“assum[ing], without deciding, that this circuit would accept the doctrines of

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fraudulent and egregious joinder as applied to plaintiffs”). The same is true of the Tenth and Eighth

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Circuits. See Lafalier v. State Farm Fire & Cas. Co., 391 Fed. Appx. 732, 739 (10th Cir. 2010)

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(statin that “[t]here may be many good reasons to adopt procedural misjoinder, . . . [b]ut we need not

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decide that issue today, because the record before us does not show that adopting the doctrine would

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change the result in this case”); Prempro, 591 F.3d at 622 (stating that, “even if adopted the

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doctrine, the plaintiffs’ alleged misjoinder in this case is not so egregious as to constitute fraudulent

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misjoinder”). Furthermore, several district courts “have criticized Tapscott, arguing that questions

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For the Northern District of California

the doctrine in an unpublished decision predating January 1, 2007, but has not expressly adopted it.

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United States District Court

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of joinder under state law do not implicate federal subject matter jurisdiction, federal jurisdiction is

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to be narrowly construed, and the fraudulent misjoinder doctrine has created an unpredictable and

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complex jurisdictional rule.” Id. at 621-22 (citing cases); see also In re Yasmin & Yaz, 779 F. Supp.

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2d at 854-55 (citing cases). “Many of these courts also opine that the better approach is for parties

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to seek severance in state court prior to removal.” Id. at 855.

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While the reasoning in these district court cases is persuasive, ultimately, the Court need not

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decide whether or not to endorse the Tapscott rule. This is because even if it were to adopt the

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fraudulent misjoinder doctrine, “the plaintiffs’ alleged misjoinder in this case [of nondiverse

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plaintiffs] is not so egregious as to constitute fraudulent misjoinder.” Prempro, 591 F.3d at 622.

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“[A]bsent evidence that plaintiffs’ misjoinder borders on a ‘sham,’ [the Court] decline[s] to apply

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Tapscott to the instant case.” Id. at 624. In the case at bar, there is nothing to suggest that the New

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York plaintiffs are sham plaintiffs; there is nothing to indicate, for example, that they did not ingest

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Plavix and suffer injury as a result.

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D.

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CAFA Jurisdiction
Finally, as to all of the eight actions, Bristol-Myers argues that there is jurisdiction pursuant

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to CAFA. CAFA provides for federal jurisdiction over not only certain class actions but also certain

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“mass actions.” See 28 U.S.C. § 1332(d)(11)(A) (providing that “a mass action shall be deemed to

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be a class action removable under paragraphs (2) through (10) if it otherwise meets the provisions of

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those paragraphs”). The term “mass action” is defined in CAFA as a civil action “in which

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monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the

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plaintiffs’ claims involve common questions of law or fact.” Id. § 1332(d)(11)(B)(i) (adding that

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“jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the

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jurisdictional amount requirements under subsection (a) – i.e., the $75,000 amount-in-controversy

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requirement). Bristol-Myers admits that, in each of the eight cases at issue, the number of plaintiffs

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is less than one hundred. However, Bristol-Myers points out, if the Court were to aggregate the

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eight cases, then the number of plaintiffs would clearly exceed one hundred. See Opp’n at 17

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(indicating that the plaintiffs in all eight cases number 659). Bristol-Myers maintains that the Court
should aggregate the cases because the plaintiffs in the eight actions have essentially brought the

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For the Northern District of California

United States District Court

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same case but split up the actions solely for the purpose of avoiding federal jurisdiction. In essence,

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Bristol-Myers argues that the Court should look through the procedural gamesmanship of Plaintiffs

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and deem the eight cases together one mass action.

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While Bristol-Myers’s position is not without any force, it has been foreclosed by the Ninth

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Circuit’s decision in Tanoh v. Dow Chemical Co., 561 F.3d 945 (9th Cir. 2009). In Tanoh, the issue

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was “whether seven individual state court actions, each with fewer than one hundred plaintiffs,

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should be treated as one ‘mass action’ eligible for removal to federal court under CAFA.” Id. at

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952. The court concluded that the answer was no. In so holding, the Ninth Circuit started off by

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looking at the plain language of the statute. It noted:

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CAFA’s “mass action” provision applies only to civil actions in which
the “monetary relief claims of 100 or more persons are proposed to be
tried jointly.” By its plain terms, § 1332(d)(11) therefore does not
apply to plaintiffs’ claims in this case, as none of the seven state court
actions involves the claims of one hundred or more plaintiffs, and
neither the parties nor the trial court has proposed consolidating the
actions for trial.

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Id. at 953.
The court also pointed out that other provisions of CAFA undercut the defendant’s position

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that the seven cases should be aggregated together and deemed one mass action. For example, under

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CAFA, “the term ‘mass action’ shall not include any civil action in which . . . the claims are joined

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upon motion of a defendant.” 28 U.S.C. § 1332(d)(11)(B)(ii)(II) (emphasis added). The Ninth

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Circuit stated that,

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[i]n light of this statutory directive, we fail to see how the result could
be any different in a case such as this one, in which Dow – while never
formally moving to consolidate plaintiffs’ claims – urges us to treat
those claims as if they should have been consolidated for purposes of
removal under CAFA. The absence of a formal motion cannot blink
away the fact that Dow, the defendant, is asking us to consolidate
separate actions for purposes of applying the “mass action” provision.
Tanoh, 561 F.3d at 953-54.
As another example, CAFA also provides that “the term ‘mass action’ shall not include any
civil action in which . . . the claims have been consolidated or coordinated solely for pretrial
proceedings.” 28 U.S.C. § 1332(d)(11)(B)(ii)(IV) (emphasis added). “This provision reinforces

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[the] conclusion that Congress intended to limit the numerosity component of mass actions quite

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severely by including only actions in which the trial itself would address the claims of at least one

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hundred plaintiffs.” Tanoh, 561 F.3d at 954 (emphasis added).

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Notably, the Ninth Circuit went on to find unpersuasive the defense argument that plaintiffs

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were artificially structuring their lawsuits solely to avoid federal jurisdiction. The court noted that,

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even assuming (as the defendant argued) “CAFA’s primary purpose was to prevent plaintiffs’

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lawyers from abusing the class action device, often by filing several ‘copycat’ actions alleging the

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same injuries on behalf of the same class of plaintiffs in different state courts,” such concerns were

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inapplicable in a case such as the one before it “in which seven different groups of plaintiffs, none of

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which purport to represent a nationwide class, allege the same injuries in the same court.” Id.

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(emphasis in original).

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Finally, the Ninth Circuit distinguished cases in which courts had found federal jurisdiction

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based on CAFA because of artificial structuring of lawsuits by plaintiffs. First, those cases did not

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address CAFA’s mass action or numerosity provisions. See id. at 955 (noting that those cases were

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class actions and that, in those cases, “it was undisputed that both plaintiff classes easily exceeded

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CAFA’s one hundred plaintiff threshold”). Second, those cases “involved plaintiffs who attempted

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to split their claims into multiple suits covering discrete time periods so as to expand their recovery

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without triggering CAFA’s $5 million amount in controversy requirement.” Id. at 955. There was

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no colorable reason to divide the cases up by time other than to avoid federal jurisdiction. See id.

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The Ninth Circuit explained that “[t]he concerns animating [those cases] simply not present in this

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case, as none of the seven groups of plaintiffs has divided its claims into separate lawsuits to expand

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recovery. To the contrary, each of the seven state court actions was brought on behalf of a different

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set of plaintiffs, meaning that none of the plaintiff groups stands to recover in excess of CAFA’s $5

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million threshold between the seven suits.” Id. (emphasis added).

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In light of Tanoh, Bristol-Myers’s main arguments in its opposition brief are unavailing. To

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the extent Bristol-Myers argues that Tanoh is distinguishable because, there, the defendant was the

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one proposing to aggregate, the situation is no different here. Bristol-Myers is the one proposing to
aggregate, not the plaintiffs in the eight actions. While the plaintiffs did seek to relate the cases,

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under CAFA, “the term ‘mass action’ shall not include any civil action in which . . . the claims have

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been consolidated or coordinated solely for pretrial proceedings.” 28 U.S.C. §

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1332(d)(11)(B)(ii)(IV) (emphasis added). The request to relate cannot be deemed a request to join

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claims for trial.8

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Finally, Bristol-Myers’s reliance on Bullard v. Burlington Northern Santa Fe Railway Co.,

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535 F.3d 759 (7th Cir. 2008), is unavailing, too. In Tanoh, the Ninth Circuit distinguished Bullard,

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pointing out that,

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[i]n that case, 144 plaintiffs sought damages for exposure to chemicals
that had allegedly escaped from a nearby wood-processing plant. The
court held that by filing a complaint on behalf of 144 residents injured
by the leak, plaintiffs had proposed jointly trying the claims of one
hundred or more people, triggering removal under CAFA. The
Seventh Circuit had no occasion to consider whether multiple state
court actions involving fewer than one hundred plaintiffs could be
removed under CAFA as a single mass action, as plaintiffs’ complaint
in Bullard, on its face, asserted claims on behalf of more than one
hundred individuals.

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In Tanoh, the Ninth Circuit indicated that the seven cases could become removable “if
plaintiffs seek to join the claims for trial.” Tanoh, 561 F.3d at 956; see also Anderson v. Bayer
Corp., 610 F.3d 390, 394 (7th Cir. 2010) (stating that “[s]uch a request from the plaintiffs seems
possible (perhaps even likely) at some future point in these cases, given the similarity of their
claims[,] [b]ut it is not yet a certainty, and Congress has forbidden us from finding jurisdiction based
on Bayer’s suggestion that the claims be tried together[;] [s]o long as plaintiffs (or perhaps the state
court) do not propose to try these cases jointly in state court, they do not constitute a mass action
removable to federal court”).

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Tanoh, 561 F.3d at 956 n.6.

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III.

CONCLUSION

For the foregoing reasons, the Court agrees with the plaintiffs in the eight related cases that

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subject matter jurisdiction in each case is lacking. The Court emphasizes that there is a “‘strong

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presumption against removal jurisdiction’” and “all ambiguit[ies] [are resolved] in favor of remand

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to state court.” Hunter, 582 F.3d at 1042. Accordingly, the plaintiffs’ motions to remand are

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granted.

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The Clerk of the Court is instructed to enter a judgment in each of the eight cases in
accordance with this opinion and close the file in the case.

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IT IS SO ORDERED.

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Dated: August 10, 2012

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EDWARD M. CHEN
United States District Judge

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