Walker et al v. Monsanto Company et al

Filing 19

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs' motion to remand [Doc. # 9] is granted. IT IS FURTHER ORDERED that the Clerk of Court shall remand this matter to the Twenty-Second Judicial Circuit of Missouri (St. Louis City) from which it was removed. Signed by Honorable Carol E. Jackson on 11/7/11. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BENITO WALKER, et al.,
Plaintiffs,
vs.
MONSANTO CO., SOLUTIA, INC.,
PHARMACIA CORP., and PFIZER,
INC.,
Defendants.

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Case No. 4:11-CV-1654 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion to remand the action to the
Twenty-Second Judicial Circuit (St. Louis City) from which it was removed. Defendants
have filed a response in opposition to the motion and the issues are fully briefed.
Plaintiffs are 96 residents of 19 states who allege that they developed NonHodgkins lymphoma after being exposed to polychlorinated biphenyls (PCBs). The
original Monsanto Chemical Company (“Old Monsanto”) manufactured PCBs between
1935 and 1977. Defendants Monsanto Co. (“New Monsanto”), Solutia, Inc., Pharmacia
Corp., and Pfizer, Inc., subsequently acquired portions of Old Monsanto. Plaintiffs in
this action assert claims for strict liability and negligence. Defendants removed the
case to federal court, pursuant to 28 U.S.C. § 1446, alleging that the case is “part of
a ‘mass action’” under the Class Action Fairness Act of 2005 (CAFA).
I.

Procedural Background

This action is one of eleven lawsuits brought by individuals who claim that they
developed Non-Hodgkins lymphoma as a result of exposure to PCBs. The eleven cases
were filed in Los Angeles County, California, St. Louis County, Missouri, and St. Louis
City, Missouri. Plaintiffs in all eleven cases are represented by the same counsel and

bring substantially similar claims of negligence and design defect against the same
defendants. Defendants removed to this Court four of the six cases filed in St. Louis
County and all three of the cases filed in St. Louis City.1 In the notices of removal, the
defendants contend that the cases are removable as a mass action under CAFA
because “[t]here is no colorable basis for [plaintiffs’] decision to file separate . . . cases
other than a desire to remain below the 100-plaintiff threshold.”
II.

Discussion

As the parties invoking federal court jurisdiction, defendants have the burden
of establishing that all prerequisites to jurisdiction have been satisfied. In re Business
Men’s Assurance Co. of America, 992 F.2d 181, 183 (8th Cir. 1993); Hatridge v. Aetna
Cas. & Sur. Co., 415 F.2d 809, 814 (8th Cir. 1969).

See also Westerfeld v.

Independent Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010) (“Although CAFA
expanded federal jurisdiction over class actions, it did not alter the general rule that
the party seeking to remove a case to federal court bears the burden of establishing
federal jurisdiction.”)
Under CAFA, federal courts have jurisdiction over class actions in which the
amount in controversy exceeds $5,000,000 in the aggregate; there is minimal diversity
among the parties; and there are at least 100 members in the class. 28 U.S.C. §
1332(d). CAFA also provides federal jurisdiction over a “mass action,” which is defined

1

Walker et al. v. Monsanto Co. et al., 4:11CV1654 (CEJ) (96 plaintiffs residing
in 18 states); Stapleton et al. v. Monsanto Co. et al., 4:11CV1656 (AGF) (95 plaintiffs
residing in 21 states); Nunn et al. v. Monsanto Co. et al., 4:11CV1657 (CEJ) (5
plaintiffs residing in 2 states); Rodriguez et al. v. Monsanto Co. et al., 4:11CV1658
(AGF) (4 plaintiffs residing in California); Dublin et al. v. Monsanto Co. et al.,
4:11CV1659 (CEJ) (14 plaintiffs residing in 7 states); Hammonds v. Monsanto Co. et
al., 4:11CV1660 (DDN) (1 defendant residing in North Carolina); Hampton et al. v.
Monsanto Co. et al., 4:11CV1662 (CEJ) (3 plaintiffs residing in California). Two of the
cases filed in St. Louis County and both cases filed in California remain in state court.
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as “any civil action . . . in which monetary relief claims of 100 or more persons are
proposed to be tried jointly on the ground that the plaintiffs’ claims involve common
questions of law or fact . . .” 28 U.S.C. § 1332(d)(11)(B)(i). The statute explicitly
excludes from the definition of “mass action” those civil actions in which “the claims
are joined upon motion of a defendant” or “the claims have been consolidated or
coordinated solely for pretrial proceedings.” § 1332(d)(11)(B)(ii) (II) and (IV).
Defendants assert that this 96-plaintiff case satisfies the definition of mass
action when combined with the other removed cases. Defendants note that this case
was filed in the St. Louis City Circuit Court on September 9, 2011, along with another
case with 95 plaintiffs. They cite this history as evidence that the plaintiffs’ counsel
purposefully chose to “splinter” a single case for the purpose of evading federal
jurisdiction. Citing Freeman v. Blue Ridge Paper Prods., Inc., 551 F.3d 405 (6th Cir.
2008), and Westerfeld v. Independent Processing, LLC, 621 F.3d 819 (8th Cir. 2010),
defendants argue that this Court is obligated to disregard such manipulations.
At issue in Freeman was CAFA’s $5 million jurisdictional threshold. A single class
of plaintiffs divided their cause of action into five distinct law suits, each covering a
different, sequential, 6-month period, with damages in each suit just under CAFA’s $5
million threshold. 551 F.3d at 406. Under this circumstance, the Sixth Circuit held
that the damages sought in the separate cases “must be aggregated,” thereby
satisfying CAFA’s jurisdictional requirement. Id. at 407. “The complaints are identical
in all respects except for the artificially broken up time periods. Plaintiffs put forth no
colorable reason for breaking up the lawsuits in this fashion, other than to avoid federal
jurisdiction. In fact, plaintiffs’ counsel admitted at oral argument that avoiding CAFA
was the only reason for this structuring.” Defendants’ reliance on Freeman to establish

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jurisdiction in this case is unavailing as it does not address the “mass action” provisions
of CAFA that are at issue in this case.
Westerfeld is similarly distinguishable.

The case concerned the “local

controversy” exception to CAFA’s jurisdiction. The plaintiff filed suit in Missouri state
court asserting identical state-law class action claims against a California defendant
and a Missouri defendant and seeking certification of two separate classes. 621 F.3d
at 821. Defendants removed the action to this court pursuant to CAFA. Plaintiff
argued that the class allegations against the local defendant precluded federal
jurisdiction under the local controversy exception.2 In determining whether plaintiff
sought “significant relief” from the Missouri defendant, the district court analyzed the
claims of the two purported classes separately and determined that the class against
the Missouri defendant satisfied the local controversy exception to jurisdiction under
CAFA. Id. at 824. The Eighth Circuit rejected this approach, determining that whether
an in-state defendant is a significant defendant for purposes of the local-controversy
exception must be determined by considering the claims of all of the class members
in the class action and not by considering the claims of class members on a class-byclass basis.

Id. at 824-25 (internal quotation and brackets omitted).

Again,

Westerfeld does not address the mass action provisions.

2

Under the “local-controversy exception,” a district court must decline to
exercise jurisdiction over a class action in which more than two-thirds of the class
members in the aggregate are citizens of the state in which the action was originally
filed, at least one defendant “from whom significant relief is sought by members of the
plaintiff class” and “whose alleged conduct forms a significant basis for the claims
asserted by the proposed plaintiff class” is a citizen of the state in which the class
action was originally filed, the principal injuries were incurred in the state in which the
action was filed, and no other class action alleging similar facts was filed in the three
years prior to the commencement of the current class action. 28 U.S.C. §
1332(d)(4)(A).
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This case has 96 plaintiffs. In order for this Court to have jurisdiction under the
mass action provisions, defendants must demonstrate that there really are 100
plaintiffs. CAFA is explicit that defendants cannot satisfy this requirement by seeking
consolidation themselves. See § 1332(d)(11)(B)(ii)(II) (excluding from the definition
of “mass action” claims “joined upon motion of a defendant”). Defendants’ contention
that plaintiffs have deliberately divided their cases in order to avoid the mass action
threshold is 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.”
Anderson v. Bayer Corp., 610 F.3d 390, 393 (7th Cir. 2010) (discussing difference
between CAFA’s class action and mass action provisions). “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. (citing Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 410 (7th

Cir.2000)).

See also Tanoh v. Dow Chemical Co., 561 F.3d 945 (9th Cir. 2009)

(rejecting defendant’s argument that seven separate cases could be consolidated under
CAFA, stating “Congress appears to have foreseen the situation presented in this case
and specifically decided the issue in plaintiffs’ favor.”)
This case does not satisfy the requirements of a “mass action.” Subject matter
jurisdiction is lacking and the case must be remanded to the state court from which it
was removed.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion to remand [Doc. # 9] is
granted.
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IT IS FURTHER ORDERED that the Clerk of Court shall remand this matter to
the Twenty-Second Judicial Circuit of Missouri (St. Louis City) from which it was
removed.
___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 7th day of November, 2011.

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