A.B. et al

Filing 26

ORDER: (1) Dismissing cases without prejudice for lack of subject matter jurisdiction; and, (2) Dismissing certain Plaintiffs without prejudice under Rule 21. Signed by Judge Nancy J. Rosenstengel on 11/4/2016. (jmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE DEPAKOTE:
RHEALYN ALEXANDER, et al.,
Plaintiffs,
vs.
ABBOTT LABORATORIES, INC., and
ABBVIE, INC.,
Defendants.

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Case No. 12-CV-52-NJR-SCW
LEAD CONSOLIDATED CASE

ORDER DISMISSING CASES
FOR LACK OF SUBJECT MATTER JURISDICTION
ROSENSTENGEL, District Judge:
On September 23, 2016, the Court raised, sua sponte, whether subject matter
jurisdiction exists over certain cases in the Depakote litigation. (Doc. 565). The primary
concern was the small percentage of cases that allege complete diversity of citizenship
as the sole basis for subject matter jurisdiction despite clear incomplete diversity
between the parties. Id. at 1-2. While both sides agree that the Court has subject matter
jurisdiction over 106 of the 116 directly filed cases, the parties differ on the remaining
ten cases. Ironically, Plaintiffs assert that the Court lacks subject matter jurisdiction over
all ten cases, while Defendants assert that the Court possesses subject matter
jurisdiction over all ten cases.
For seven of the ten cases, (13-cv-0622; 13-cv-0890; 14-cv-0001; 15-cv-0102; 15-cv0186; 15-cv-0472; and 16-cv-0021), Defendants assert that subject matter jurisdiction
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exists because “Plaintiffs alleged [in their complaints] that ‘this court has subject matter
jurisdiction pursuant to 28 U.S.C. § 1332’ (or substantially similar language invoking
’28 U.S.C. § 1332’).” (Doc. 638, at p. 10.) They argue that by referencing the generic
§ 1332 diversity statute combined with the assertion that complete diversity exists,
Plaintiffs intended to invoke the specific mass action provision under subsection
1332(d). This Court finds that it would be clear error to make such a sweeping
assumption regarding Plaintiffs’ intention from the plain language contained in the
complaints. Subject matter jurisdiction under the Class Action Fairness Act (“CAFA”)
requires a proposal by Plaintiffs to try the cases jointly before the mass action provision
is triggered. 28 U.S.C. § 1332(d)(11)(B)(i). For the seven cases listed below, there is no
reference to the Depakote mass action, CAFA, or even any request for a joint trial. The
presence of an existing mass action within a district does not bestow federal subject
matter jurisdiction on a case simply because they each allege similar facts and legal
theories. The seven cases in this category do not present a federal question or invoke the
provisions of CAFA, and contrary to the assertion in the complaints, complete diversity
of citizenship does not currently exist.
To correct this jurisdictional defect, the Court turns to Federal Rule of Civil
Procedure 21. Rule 21 allows this Court to drop a nondiverse dispensable party to
secure subject matter jurisdiction in the remaining action. FED. R. CIV. P. 21; NewmanGreen, Inc. v. Alfonzo-Larrain. 490 U.S. 826, 832 (1989) (“It is well settled that Rule 21
invests district courts with authority to allow a dispensable nondiverse party to be
dropped at any time…”) This rule has been used in the Seventh Circuit to dismiss
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defendants who destroy federal diversity jurisdiction. See, e.g., Altom Transport, Inc. v.
Westchester Fire Ins. Co., 823 F.3d 416 (7th Cir. 2016); see also Sta-Rite Industries Inc. v.
Allstate Ins. Co. 96 F.3d 281 (7th Cir. 1996) (where the Seventh Circuit contemplated
dropping a Plaintiff under Rule 21, but ultimately declined to do so, finding that the
Plaintiff was an indispensable party to the claim.) When a district court exercises this
power to drop a party to preserve subject matter jurisdiction, the dismissal under Rule
21 is retroactive. Dexia Credit Local v. Rogan, 629 F.3d 612, 621 (7th Cir. 2010).
A party is dispensable to an action when the Court can “accord complete relief
among the existing parties in his absence, and there are no practical problems that
would be created by his dismissal.” Altom Transp., Inc. v. Westchester Fire Ins. Co., 823
F.3d 416, 420 (7th Cir. 2016) (citing FED. R. CIV. P. 19(a)). Applying this standard to the
present cases, it is clear that the nondiverse Plaintiffs in the seven Depakote cases are
dispensable. Each Plaintiff has an individual and distinct claim against Defendants, and
it is entirely possible to accord complete relief among the remaining parties in each of
the individual Plaintiff’s actions. 1 Combining multiple claims into a single complaint
does not make each individual claim indispensable from the others. See LeBlanc v.
Cleveland, 248 F.3d 95 (2d Cir. 2001) (Where the Second Circuit determined that one of
two injured kayakers claiming to be injured by a single motor boat in a complaint was
properly dismissed to preserve subject matter jurisdiction.) Accordingly, the following
Plaintiffs are DISMISSED from these Depakote proceedings, without prejudice:

It is undisputed that these cases present common issues of law and fact, however, the unifying
commonalities are insufficient to make any one plaintiff “indispensable.”

1

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Plaintiff(s)
James Vailes and minor
Plaintiff J.V.
Sarah J. DuBeau and minor
Plaintiffs C.D.
Sarah J. DuBeau and minor
Plaintiffs J.D.
Stacy Clemmons and minor
Plaintiff A.C.
Pamela Reyes and minor
Plaintiff J.A.
Rebecca Jackson and minor
Plaintiff I.G.
Lorri McDanel and minor
Plaintiff A.M.
John Marzigliano

Case Number
13-CV-0622

Case Style
Barbour, et al. v. Abbott Labs., Inc.

13-CV-0890

Moore, et al. v. Abbott Labs., Inc.

13-CV-0890

Moore, et al. v. Abbott Labs., Inc.

14-CV-0001

Milam, et al. v. Abbott Labs., Inc.

15-CV-0102

Alexander, et al. v. Abbott Labs., Inc.
and AbbVie Inc.
Jackson v. Abbott
Labs., Inc.
Bauman, et al. v. Abbott Labs., Inc.
and AbbVie Inc.
Sanders, et al. v. Abbott Labs., Inc.
and AbbVie Inc.

15-CV-0186
15-CV-0472
16-CV-0021

Exercising Rule 21 authority to dismiss the nondiverse Plaintiffs eliminates the
diversity destroying Plaintiffs and ensures subject matter jurisdiction over the
remaining claimants. The Clerk of Court is DIRECTED to terminate each Plaintiff listed
in the chart above from CM/ECF. For case No. 15-cv-0186, Jackson v. Abbott Labs., Inc.,
(S.D. Ill. 2015), the Clerk of Court is DIRECTED to close the case as Rebecca Jackson
and minor Plaintiff I.G. were the only Plaintiffs therein. Additionally, the Court reserves
its ruling on case No. 13-cv-686, R.R., II, et al., v. Abbott Laboratories Inc., (S.D. Ill. 2013).
Case No. 13-cv-686 is the same outlier direct ingestion case referenced in this Court’s
Order dated October 12, 2016, and the Court intends to address this issue at the
upcoming status conference. See (Doc. 616, at p. 2).
The remaining two directly filed Depakote cases (Case Nos. 13-cv-1041, Clay, et
al., v. Abbott Laboratories, et al., (S.D. Ill. 2013) and 13-cv-1043, Taft et al., v. Abbott
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Laboratories, et al., (S.D. Ill. 2013)) contain only nondiverse parties such that Rule 21
cannot be utilized to ensure subject matter jurisdiction. Also, the complaints in these
two cases expressly assert that this Court has subject matter jurisdiction under the mass
action jurisdictional provisions of 28 U.S.C. §1332(d)(2) and (d)(11). See Clay et al., v.
Abbott Laboratories et al., No. 13-CV1041, Doc. 2 at p. 2; Taft et al. v. Abbott Laboratories et
al., No. 13-CV-1043, Doc. 2 at p. 2. Defendants contend that subject matter jurisdiction is
obtained when a Plaintiff files a separate parallel complaint which invokes CAFA
jurisdiction and vaguely references a pending mass action. (Doc. 638, at pp. 5-13).
Conversely, Plaintiffs appear to contend that CAFA does not provide original
jurisdiction for Plaintiffs to file directly in federal court and nevertheless, Plaintiffs’
actions are insufficient to join the pending mass action. 2 (Doc. 608 at pp. 5-13).
The mass action provision of the Class Action Fairness Act (“CAFA”) expands
the diversity requirements under Section 1332 to provide for “minimum diversity”
when certain conditions are met. 28 U.S.C. §1332(d)(2) and (d)(11). Concerning Plaintiffs
assertion that CAFA works only as a removal statute, nothing in the language of statute
or the legislative history limits its application as described by Plaintiffs. Contrary to
Plaintiffs assertion, both section 1332(a) and 1332(d)(2) contain identical language
concerning original jurisdiction. Compare 28 U.S.C. §1332(a); with 28 U.S.C. §1332(d)(2)

It is difficult to ascertain Plaintiffs’ desired outcome regarding these ten cases. On the one hand, they
claim that the Court does not have subject matter jurisdiction. (Doc. 608, at p. 13) (“The Court lacks
jurisdiction over [ten] actions filed in this Court.”); (Doc. 652, at p. 6) (“Accordingly, the Court cannot
properly exercise its jurisdiction over these 10 cases.”) Yet on the other hand, they expressly state that
they “do not seek the dismissal of any of the Directly Filed Depakote Cases.” (Doc. 608). Certainly the
Plaintiffs in these cases would not take such contradictory and juxtaposed position simply to build in a
gratuitous appellate issue, but finding daylight between these positions has confounded the Court.
2

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(each providing that “[t]he district court shall have original jurisdiction…” over any
claim that meets the enumerated criteria set forth in their respective subsections.) The
Seventh Circuit has acknowledged this language and its impact in Hart v. FedEx Ground
Package Sys. Inc., 457 F.3d 675, 680 (7th Cir. 2006); see also Abrego Abrego v. The Dow Chem.
Co., 443 F.3d 676, 680 (9th Cir. 2006) (“Section 1332(d), added by CAFA, vests the
district court with 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 the parties satisfy, among other requirements, minimal
diversity.”) (internal quotation omitted). Whether Plaintiffs file the cases in state court
or directly in federal court, it is clear that federal subject matter jurisdiction can be
obtained by using the minimum diversity provisions of CAFA.
It is clear that the Plaintiffs in the removed Depakote mass action clearly
contemplated and wanted additional cases with similar allegations to be considered
part of their action. See (Doc. 2-2, at p. 2) (requesting that the pending Depakote cases in
the numerous Illinois state courts, “as well as future Depakote cases….” be
consolidated.) Plaintiffs try to limit the impact and legal effect of their request by
pointing to Koral v. Boeing Co., 628 F.3d 945, 947 (7th Cir. 2011). (Doc. 652, at p. 2)
(“Seventh Circuit law is clear: for a proposal to effectively consolidate separate
plaintiffs’ claims for the purposes of creating a mass action under CAFA, ‘[t]he proposal
must be to the court in which the suits are pending.’”) (quoting Koral, 628 F.3d at 947).
While the proposal for a joint trial triggering a mass action must occur before the court
where the suits are pending, Koral does not address the circumstance at hand, i.e.,
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attempts by a Plaintiff to join an existing mass action. 3
The exact procedure for a party to join a removed mass action is not clearly
defined by any appellate court. There is no language in CAFA or any indication in the
legislative history that special procedural rules should apply once a mass action is
created. Indeed, the current circumstance is no different than a nondiverse plaintiff
seeking to join an existing Rule 23 class action. In either circumstance, jurisdiction does
not exist until the parties are properly joined to the action. Whether it is an existing class
action, standard case, or an existing mass action, this Court does not allow a party to
join an existing action simply by filing a parallel complaint (even when it expressly
references an existing case or class action). Cases that would otherwise lack subject
matter jurisdiction are routinely added to existing cases under Rule 15, Rule 20, or Rule
24. 4 This Court recognizes that it is clear that the new Plaintiffs and the original mass
action Plaintiffs intended for the claims to fall within the same mass action, however,
the “procedures” utilized by the Plaintiffs in Case Nos. 13-cv-1041 and 13-cv-1043 fail to
meet the basic requirements of the Federal Rules of Civil Procedure. Accordingly, these
two cases have not been joined to the mass action and therefore the Court continues to
lack subject matter jurisdiction. Case Nos. 13-cv-1041, Clay, et al., v. Abbott Laboratories, et

This Court is skeptical that the clause cited by Plaintiffs has the sweeping implication they assert. When
the quoted language is read in its full context, it becomes clear that Judge Posner was acknowledging a
limitation on defendants as to what language may be cited when moving for removal under CAFA as a
“proposal” by plaintiffs for a joint trial.
4 Rule 24 of the Federal Rules of Civil Procedure allows a person to intervene in an action who “has a
claim or defense that shares with the main action a common question of law or fact.” FED. R. CIV. P.
24(b)(1)(B). Rule 20 of the Federal Rules of Civil Procedure allows a person to join an action as a plaintiff
if that action arises “out of the same transaction, occurrence, or series of transactions or occurrences…”
and there are common questions of law or fact that will arise in the action. FED. R. CIV. P. 20. Finally, Rule
15 allows the parties to amend the complaint to add parties to their claim.
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al., (S.D. Ill. 2013) and 13-cv-1043, Taft et al., v. Abbott Laboratories, et al., (S.D. Ill. 2013)
are hereby DISMISSED without prejudice, and the Clerk of Court is DIRECTED to
close these two cases.
Finally on an administrative matter, this Court continues to notice Plaintiffs’ use
of footnotes for purposes of case citation. The excessive use of footnotes has been
utilized by parties in other courts as a page limitation workaround. See 14-cv-2329-BLF,
Free Range Content, Inc., et al., v. Google Inc., (N.D. Ca. 2014) (noting that in a 25 page
brief, Plaintiffs’ copious and excessive footnotes concealed what would have been an
additional 16 pages if drafted in the text of the main body). While there is no evidence
to suggest Plaintiffs are utilizing footnotes citations for such a purpose, the Court
nevertheless recommends that Plaintiffs discontinue their current practice.
IT IS SO ORDERED.
DATED: November 4, 2016
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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