Pyszkowski et al v. Abbott Laboratories Inc

Filing 26

ORDER OF REMAND. The Court GRANTS 21 Motion to Remand brought by Plaintiffs Roger Pyszkowski and Mindy Pyszkowski, individually as parents and next friends of C.P., a minor, and E.P., a minor. Pursuant to 28 U.S.C. § 1447(c) this action is REMANDED to the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, for lack of federal subject matter jurisdiction. Signed by Judge G. Patrick Murphy on 4/17/2012. (jhs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROGER PYSZKOWSKI
and
MINDY PYSZKOWSKI, individually and as
parents and next friends of C.P., a minor,
and E.P., a minor,
Plaintiffs,
vs.
ABBOTT LABORATORIES, INC.,
Defendant.

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CIVIL NO. 12-56-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This lawsuit concerns personal injuries allegedly caused by Depakote, a prescription
medication manufactured and distributed by Defendant Abbott Laboratories, Inc. (“Abbott”).
This case was filed originally in the Circuit Court of the Third Judicial Circuit, Madison County,
Illinois, and comes to this Court on removal from state court. Federal subject matter jurisdiction is
alleged by Abbott on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332, as amended
by the Class Action Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (codified in
scattered sections of 28 U.S.C.). Currently this matter is before the Court on the motion of
Plaintiffs Roger Pyszkowski and Mindy Pyszkowski, individually and as parents and next friends
of C.P., a minor, and E.P., a minor, for remand of this case to state court for lack of federal subject
matter jurisdiction in diversity (Doc. 21). Pursuant to 28 U.S.C. § 1441, “any civil action brought
in a State court of which the district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district court of the United States for the district
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and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). The party
seeking removal, as the proponent of federal subject matter jurisdiction, has the burden of proof as
to the existence of such jurisdiction. See Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540 (7th
Cir. 2006); Brill v. Countrywide Home Loans, 427 F.3d 446, 447-49 (7th Cir. 2005); Bemis v. Safeco
Ins. Co. of Am., Civil No. 09-315-GPM, 2009 WL 1972169, at *2 (S.D. Ill. July 8, 2009); Welch v.
Norfolk S. Ry. Co., Civil No. 09-209-GPM, 2009 WL 2365596, at *1 (S.D. Ill. May 27, 2009); Kuntz
v. Illinois Cent. R.R. Co., 469 F. Supp. 2d 586, 589 (S.D. Ill. 2007). “‘Courts should interpret the
removal statute narrowly and presume that the plaintiff may choose his or her forum.’ Put another
way, there is a strong presumption in favor of remand.” Fuller v. BNSF Ry. Co., 472 F. Supp. 2d
1088, 1091 (S.D. Ill. 2007) (quoting Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)).
Finally, “[d]oubts concerning removal must be resolved in favor of remand to the state court.”
Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d 838, 841 (S.D. Ill. 2006). See also Stephens v.
A.W. Chesterton, Inc., Civil No. 09-633-GPM, 2009 WL 3517560, at *1 (S.D. Ill. Oct. 22, 2009)
(“Any doubts about the propriety of removal must be resolved against removal and in favor of
remand to state court.”). With the foregoing standard in mind, the Court turns to the instant motion
for remand.
In its notice of removal, Abbott asserts that this case is removable under CAFA as a
“mass action.” A mass action within the meaning of CAFA is: (1) a civil action commenced on or
after February 18, 2005, in which monetary relief claims of one hundred or more persons are joined;
(2) the plaintiffs’ claims are proposed to be tried jointly on the ground that the claims involve
common questions of law or fact; (3) there is minimal diversity of citizenship, that is, at least one
plaintiff is not a citizen of the same state as at least one defendant; and (4) the plaintiffs each seek
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a recovery exceeding $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332(d)(11)(B)(i);
Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759, 761-62 (7th Cir. 2008); Mobley v. Cerro
Flow Prods., Inc., Civil No. 09-697-GPM, 2010 WL 55906, at *2 (S.D. Ill. Jan. 5, 2010); Brown v.
Cerro Flow Prods., Inc., Civil No. 09-582-GPM, 2010 WL 55905, at *2 (S.D. Ill. Jan. 4, 2010);
Schillinger v. 360Networks USA, Inc., Civil No. 06-138-GPM, 2006 WL 1388876, at *2
(S.D. Ill. May 18, 2006) (quoting Pub. L. 109-2, § 9, 119 Stat. 4). Additionally, CAFA authorizes
removal of mass actions from state court to federal court. See 28 U.S.C. § 1332(d)(11)(A); 28
U.S.C. § 1453(b); Clayton v. Cerro Flow Prods., Inc., Civil No. 09-550-GPM, 2010 WL 55675,
at *2 (S.D. Ill. Jan. 4, 2010); Gilmore v. Bayer Corp., Civil No. 09-986-GPM, 2009 WL 4789406,
at *2 (S.D. Ill. Dec. 9, 2009). As already has been noted, Abbott, as the removing party, has the
burden of proving that all of the prerequisites for the exercise of federal subject matter jurisdiction
in diversity under CAFA are met.1
The glaring defect in Abbott’s theory of CAFA jurisdiction in this case is that the case
contains only four Plaintiffs, well short of the 100 plaintiffs required for the exercise of diversity
jurisdiction over a mass action. Abbott argues that the statutory minimum number of plaintiffs is

1. This perhaps is the place to note that this case is not within the Court’s traditional, pre-CAFA
diversity jurisdiction. In general, federal courts have jurisdiction in diversity in cases in which there
is complete diversity of citizenship, that is, no plaintiff is a citizen of the same state as any defendant,
and an amount in excess of $75,000, exclusive of interest and costs, is in controversy. See 28 U.S.C.
§ 1332(a)(1); LM Ins. Corp. v. Spaulding Enters. Inc., 533 F.3d 542, 547 (7th Cir. 2008); Fidelity &
Deposit Co. of Md. v. City of Sheboygan Falls, 713 F.2d 1261, 1264 (7th Cir. 1983). Here Roger
and Mindy Pyszkowski, whose state citizenship for purposes of diversity jurisdiction is imputed to
their minor children, C.P. and E.P., are citizens of Illinois. See Netherlands Ins. Co. v. Marathon
Oil Corp., Civil No. 09-1057-GPM, 2009 WL 5213873, at *2 (S.D. Ill. Dec. 28, 2009). Abbott is
a corporation organized under Illinois law with its principal place of business, that is to say, its
headquarters or “nerve center,” in Illinois, and thus is an Illinois citizen as well. See 28 U.S.C.
§ 1332(c)(1); Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192-95 (2010). In sum, complete diversity
of citizenship does not exist in this case.
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satisfied in this instance because Plaintiffs in this case should be deemed by the Court to be parties
to five other cases regarding personal injuries allegedly caused by Depakote that are pending
before the Court on removal from state court, to wit:

Alexander v. Abbott Laboratories,

Inc., Civil No. 12-52-GPM (S.D. Ill. filed Jan. 19, 2012); Bartolini v. Abbott Laboratories,
Inc., Civil No. 12-53-GPM (S.D. Ill. filed Jan. 19, 2012); Book v. Abbott Laboratories, Inc.,
Civil No. 12-54-GPM (S.D. Ill. filed Jan. 19, 2012); Brumfield v. Abbott Laboratories, Inc.,
Civil No. 12-55-GPM (S.D. Ill. filed Jan. 19, 2012); and Woolfolk v. Abbott Laboratories, Inc.,
Civil No. 12-57-GPM (S.D. Ill. filed Jan. 19, 2012). According to Abbott, if the Court simply
aggregates the claims of the four Plaintiffs in this case with the those of the two plaintiffs in
Alexander, the eighty-five plaintiffs in Bartolini, the fifty-three plaintiffs in Book, the forty-five
plaintiffs in Brumfield, and the ninety-three plaintiffs in Woolfolk, then this case may be deemed to
contain a grand total of 282 Plaintiffs.2
Unfortunately for Abbott, aggregating separate cases to satisfy the minimum number of 100
plaintiffs required for a CAFA mass action is expressly foreclosed by the decision of the
United States Court of Appeals for the Seventh Circuit in Anderson v. Bayer Corp., 610 F.3d 390

2. Somewhat bizarrely, Abbott also proposes that Plaintiff in this case be deemed a party to four
actions involving personal injuries allegedly caused by Depakote that were filed in the Circuit Court
of Cook County, Illinois, and apparently have been removed by Abbott to the United States District
Court for the Northern District of Illinois. The Court entirely fails to see how cases pending in
courts completely separate from this one may be deemed to be this Court’s cases through any form
of legal legerdemain. The Court notes also that since the removal to this Court of this case,
Alexander, Bartolini, Book, Brumfield, and Woolfolk, an additional case involving personal injuries
allegedly caused by Depakote has been removed to this Court, Harris v. Abbott Laboratories, Inc.,
Civil No. 12-163-GPM (S.D. Ill. filed Feb. 24, 2012). Presumably, Abbott would argue that the
thirty-two plaintiffs in Harris should be aggregated with the plaintiffs in this case, Alexander,
Bartolini, Book, Brumfield, and Woolfolk for purposes of satisfying the minimum number of
plaintiffs specified by the mass action requirements of CAFA.
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(7th Cir. 2010). In Anderson the court of appeals was confronted by four separate cases, none of
which involved 100 or more plaintiffs but which the removing defendants argued contained, in the
aggregate, 111 plaintiffs. See id. at 392. Noting that CAFA expressly excludes from its definition
of a mass action cases that have been consolidated on a defendant’s motion, the Anderson court said:
“The mass action provision gives plaintiffs the choice to file separate actions that do not qualify for
CAFA jurisdiction. The instant cases contain fewer than 100 plaintiffs and thus are not removable
under the plain language of the statute.” Id. at 393. The court said further that the removing
defendants’ “argument that these separate lawsuits be treated as one action is tantamount to a request
to consolidate them – a request that Congress has explicitly stated cannot become a basis for removal
as a mass action.” Id. at 393-94 (citing 28 U.S.C. § 1332(d)(11)(B)(ii)(II)). The court found the
defendants’ contention that the plaintiffs had deliberately divided their cases in order to avoid the
mass action threshold irrelevant. “By excluding cases in which the claims were consolidated on a
defendant’s motion, Congress appears to have contemplated that some cases which could have been
brought as a mass action would, because of the way in which the plaintiffs chose to structure their
claims, remain outside of CAFA’s grant of jurisdiction.” Id. at 393. “This is not necessarily
anomalous; after all, the general rule in a diversity case is that ‘plaintiffs as masters of the complaint
may include (or omit) claims or parties in order to determine the forum.’” Id. (quoting Garbie v.
DaimlerChrysler Corp., 211 F.3d 407, 410 (7th Cir. 2000)). See also Tanoh v. Dow Chem. Co., 561
F.3d 945, 953-54 (9th Cir. 2009) (concluding that seven similar cases, each involving fewer than 100
plaintiffs, could not be treated as a single mass action for CAFA purposes because allowing the cases
to be aggregated to meet the mass action threshold was tantamount to consolidation of the cases on
the removing defendant’s motion).
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In support of its argument that this case is indeed a CAFA mass action, Abbott puts great
weight on the fact that the plaintiffs in Alexander have moved in the Supreme Court of Illinois for
coordinated or consolidated pretrial proceedings in the St. Clair County circuit court in this case,
Alexander, Bartolini, Book, Brumfield, and Woolfolk, as well as in the four Depakote actions that,
as already has been noted, are pending in the Northern District of Illinois. Under the Illinois
Supreme Court Rules,
When civil actions involving one or more common questions of fact or law are
pending in different judicial circuits, and the supreme court determines that
consolidation would serve the convenience of the parties and witnesses and would
promote the just and efficient conduct of such actions, the supreme court may, on its
own motion or on the motion of any party filed with the supreme court, transfer all
such actions to one judicial circuit for consolidated pretrial, trial, or post-trial
proceedings.
Illinois S. Ct. R. 384(a). See also Neofotistos v. Center Ridge Co., 609 N.E.2d 806, 808
(Ill. App. Ct. 1993). It appears from the record that this request for centralization of Depakote cases
remains pending before the Illinois Supreme Court and in fact is opposed by Abbott. Regardless,
Abbott argues that the Rule 384 motion shows that the disparate actions at issue here nonetheless
comprise a mass action. Abbott ignores, of course, the fact that CAFA excludes from the definition
of a mass action cases in which “the claims have been consolidated or coordinated solely for pretrial
proceedings.” 28 U.S.C. § 1332(d)(11)(B)(ii)(IV). Conversely, of course, if separate cases are
consolidated for trial, they properly may be aggregated as a mass action. See Anderson, 610 F.3d
at 394 (citing Bullard, 535 F.3d at 762) (“Of course, subsequent action by the plaintiffs in state court
might render these claims removable . . . . So 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.”). However, it does not appear from the Rule 384 motion in this case that the plaintiffs
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in Alexander contemplate a joint trial of the claims asserted in the various cases at issue here.
Rather, the Alexander plaintiffs state simply that “[c]onsolidating these cases for proceedings
through trial will prevent duplication and inconsistency in discovery and court rulings, and will allow
the parties to coordinate document discovery, depositions, pretrial litigation, and trial.” Doc. 21-3
at 2. Thus, it appears that the Alexander plaintiffs contemplate consolidated discovery and pretrial
proceedings, but not a joint trial of the hundreds of claims asserted in the ten subject cases. This is
consistent with the Court’s experience, in which so-called “mass tort” cases are never tried in their
entirety, and instead “bellwether” claims selected by the parties are tried individually in order to
answer difficult issues of causation or liability common to all of the claims and/or to value the
remaining claims in the case for purposes of settlement.

See, e.g., In re Yasmin & Yaz

(Drospirenone) Mktg., Sales Practices & Prods. Liab. Litig., No. 3:09-md-02100-DRH-PMF,
MDL No. 2100, 2010 WL 4024778, at **2-3 (S.D. Ill. Oct. 13, 2010) (citing Manual for Complex
Litigation (Fourth) § 22.315 (2004)) (directing the selection of twelve bellwether cases for individual
trials in a multidistrict litigation proceeding involving some 3,700 cases). In any event, Abbott,
which, as noted, has the burden of proof as to subject matter jurisdiction, has not pointed to any
evidence that counsel for the hundreds of claimants in the cases under discussion actually propose
to try all of those claims at one time, a venture that strikes the Court as quixotic, to say the least.
The Seventh Circuit Court of Appeals held recently that a vague “prediction of what might happen
if the judge decided to hold a mass trial” of tort claims is insufficient to establish that a case
qualifies as a mass action and thus is within federal jurisdiction pursuant to CAFA. Koral v. Boeing
Co., 628 F.3d 945, 947 (7th Cir. 2011). The Court finds that Abbott has failed to show that this case
is removable as a mass action under CAFA.
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As a final matter, the Court addresses the issue of whether to compel Abbott to pay costs and
expenses pursuant to 28 U.S.C. § 1447, which provides, in pertinent part, that “[a]n order remanding
[a] case may require payment of just costs and any actual expenses, including attorney fees, incurred
as a result of the removal.” 28 U.S.C. § 1447(c). In Martin v. Franklin Capital Corp., 546 U.S. 132
(2005), the Court held that, “[a]bsent unusual circumstances, courts may award attorney’s fees under
§ 1447(c) only where the removing party lacked an objectively reasonable basis for seeking
removal.” Id. at 141. “The appropriate test for awarding fees under § 1447(c) should recognize the
desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the
opposing party, while not undermining Congress’ basic decision to afford defendants a right to
remove as a general matter, when the statutory criteria are satisfied.” Id. at 140.

In the

Seventh Circuit objective unreasonableness of removal generally is established only where a removal
violates Seventh Circuit law as pronounced by the decisions of the Seventh Circuit Court of Appeals
and the Supreme Court of the United States. See Lott v. Pfizer, Inc., 492 F.3d 789, 793
(7th Cir. 2007); Kalbfleisch v. Columbia Cmty. Unit Sch. Dist. Unit No. 4, 644 F. Supp. 2d
1084, 1090 (S.D. Ill.2009). As a rule, it is difficult to prove that the removal of a case is objectively
unreasonable so as to warrant an award of costs and expenses, including attorney fees, for improper
removal, given what the Seventh Circuit Court of Appeals has acknowledged is a “dearth” of
appellate authority regarding removal caused by the broad prohibition of appellate review of remand
orders imposed by 28 U.S.C. § 1447(d).

Wisconsin v. Amgen, Inc., 516 F.3d 530, 533

(7th Cir. 2008). Here Abbott came remarkably close to the knuckle in its removal of this case, but
the Court cannot call the removal objectively unreasonable. Thus, the Court will not award costs
and expenses pursuant to Section 1447(c) in this case.
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To conclude, Plaintiffs’ motion for remand (Doc. 21) is GRANTED. Pursuant to 28 U.S.C.
§ 1447(c) this action is REMANDED to the Circuit Court of the Third Judicial Circuit,
Madison County, Illinois, for lack of federal subject matter jurisdiction.
IT IS SO ORDERED.
DATED: April 17, 2012

/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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