Harris et al v. Abbott Laboratories, Inc.

Filing 20

ORDER OF REMAND. The Court GRANTS 19 Motion to Remand brought by Plaintiffs Jewell J. Harris, individually and as parent and next friend of D.H., a minor, Dallas Nyhagen, Becki Nyhagen, individually and as parent and next friend of M.M., a minor, Amanda Buttke, Rebecca Buttke, Courtney Calvert, individually and as parent and next friend of J.C., a minor, Allison Anne Curci, individually and as parent and next friend of E.C., a minor, Margie Dickson, individually and as parent and next friend of T.D., a minor, Lorene S. Fitzgerald, individually and as parent and next friend of M.F., a minor, Natasha Gean, individually and as parent and next friend of Z.G., a minor, Melissa Lee Goins, individually and as parent and next friend of M.J.G., a minor, Mary Hobbins, individually and as parent and next friend of B.H., a minor, Amanda Holden, individually and as parent and next friend of L.H., a minor, Penny Kay, individually and as parent and next friend of S.J., a minor, De'Wanda O 9;Neil, individually and as parent and next friend of I.O., a minor, Danyelle Harris, individually and as parent and next friend of D.R., a minor, Judy Mason, Victoria Cook, and Jonathan Wilson. Pursuant to 28 U.S.C. § 1447(c) this action is REMANDED to the Circuit Court of the Twentieth Judicial Circuit, St. Clair 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
JEWELL J. HARRIS, individually and as )
parent and next friend of D.H., a minor, )
et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
ABBOTT LABORATORIES, INC.,
)
)
Defendant.
)

CIVIL NO. 12-163-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”).
Plaintiffs in this case are, in addition to Jewell J. Harris, individually and as parent and next friend
of D.H., a minor: Dallas Nyhagen; Becki Nyhagen, individually and as parent and next friend of
M.M., a minor; Amanda Buttke; Rebecca Buttke; Courtney Calvert, individually and as parent and
next friend of J.C., a minor; Allison Anne Curci, individually and as parent and next friend of E.C.,
a minor; Margie Dickson, individually and as parent and next friend of T.D., a minor;
Lorene S. Fitzgerald, individually and as parent and next friend of M.F., a minor; Natasha Gean,
individually and as parent and next friend of Z.G., a minor; Melissa Lee Goins, individually and as
parent and next friend of M.J.G., a minor; Mary Hobbins, individually and as parent and next friend
of B.H., a minor; Amanda Holden, individually and as parent and next friend of L.H., a minor; Penny
Kay, individually and as parent and next friend of S.J., a minor; De’Wanda O’Neil, individually and

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as parent and next friend of I.O., a minor; Danyelle Harris, individually and as parent and next friend
of D.R., a minor; Judy Mason; Victoria Cook; and Jonathan Wilson. This case was filed originally
in the Circuit Court of the Twentieth Judicial Circuit, St. Clair 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 Plaintiffs’ motion for remand of this case to
state court for lack of federal subject matter jurisdiction in diversity (Doc. 19).
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 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.”
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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
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); Anderson v. Bayer Corp., Civil No. 09-988-GPM, 2010 WL 148633, at *2
(S.D. Ill. Jan. 13, 2010); 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
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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 thirty-two 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 satisfied in this instance because Plaintiffs in this case should be deemed by the Court
to be parties to six 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); Pyszkowski v. Abbott Laboratories, Inc.,
Civil No. 12-56-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 thirty-two Plaintiffs in this case with the those of the two plaintiffs in

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 Jewell
Harris, whose state citizenship for purposes of diversity jurisdiction is imputed to her minor child,
D.H., is a citizen 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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Alexander, the eighty-five plaintiffs in Bartolini, the fifty-three plaintiffs in Book, the forty-five
plaintiffs in Brumfield, the four plaintiffs in Pyszkowski, and the ninety-three plaintiffs in Woolfolk,
then this case may be deemed to contain a grand total of 314 Plaintiffs.2
Unfortunately for Abbott, its theory of 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 (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

2. Somewhat bizarrely, Abbott also proposes that Plaintiffs in this case be deemed parties 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.
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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 separate state-court toxic
tort actions against same manufacturer, each with fewer than 100 plaintiffs, could not be treated as
single “mass action” eligible for removal to federal court under CAFA, as the manufacturer
requested; none of the individual actions had the requisite minimum number of plaintiffs, neither the
parties nor the state trial court had proposed consolidating actions for trial, and CAFA specifically
directed that claims joined upon the motion of a defendant did not constitute a mass action for CAFA
purposes); Kaya v. Boeing Co., No. 10 C 6617, 2011 WL 52425, at **1-2 (N.D. Ill. Jan. 3, 2011)
(declining to aggregate two cases containing a total of twenty-three plaintiffs with twenty-seven other
cases arising out of the same airplane crash that were pending before the court in order to create a
CAFA mass action); Kalan-Suna v. Boeing Co., No. 10 C 6639, 2010 WL 4928941, at **1-2
(N.D. Ill. Nov. 30, 2010) (declining to aggregate a case brought by a single plaintiff with twentyeight other cases arising from the same airplane crash that were pending before the court to create
a CAFA mass action); Ledford v. Boeing Co., No. 10 C 06613, 2010 WL 4638409, at **1-2
(N.D. Ill. Nov. 5, 2010) (declining to aggregate a case brought by a single plaintiff with twenty-eight
other cases arising from the same airplane crash that were pending before the court to create a CAFA
mass action).
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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, Pyszkowski, 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. 19-2
at 25. 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). Abbott has failed to show that this case is 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. 19) is GRANTED. Pursuant to 28 U.S.C.
§ 1447(c) this action is REMANDED to the Circuit Court of the Twentieth Judicial Circuit,
St. Clair 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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