Brannen et al v. Ethicon, Inc. et al

Filing 19

MEMORANDUM AND ORDER re: 6 MOTION to Remand Case to State Court to City of St. Louis, MO filed by Plaintiff Rosemary Popek, Plaintiff Della Jones, Plaintiff Basil Trent, Jr., Plaintiff Timmothy Hyatt, Plaintiff David Dennis, Plaint iff Claudette Boehle, Plaintiff Steve Brockman, Plaintiff George Marten, Plaintiff Lisa Green, Plaintiff Catherine Young, Plaintiff Stacy Sellers, Plaintiff Ila Barber, Plaintiff Alan Palo, Plaintiff Margaret Higginbotham, Plaintiff Clifton Durham, Plaintiff Andy Thomas, Plaintiff Lavawn Beecher, Plaintiff Mary Chandler, Plaintiff Judith Jones, Plaintiff Steve Dacus, Plaintiff Patricia Palo, Plaintiff Carrie Reeves, Plaintiff Geraldine Edwards, Plaintiff Kristin Kulikowski, Pl aintiff Pamela Thomas, Plaintiff Tina Foley, Plaintiff Michael Sellers, Plaintiff Linda Weston, Plaintiff Debra Mathews, Plaintiff Shawn Evans, Plaintiff Barbara Tobery-Hack, Plaintiff William Roy, Plaintiff Connie Wilson, Plaintiff Lance S wanson, Plaintiff Timothy Boehle, Plaintiff Nellie Salisbury, Plaintiff Darlene Dennis, Plaintiff Patricia Boram, Plaintiff Richard Mathews, Plaintiff Melanie Ghanim, Plaintiff Julie Hudson, Plaintiff Dorothy Urka, Plaintiff Bill Hudson, Jr, Plaintiff Lori Prestay, Plaintiff Robert Urka, Plaintiff Donna Benedetto, Plaintiff Teresa Sauerheber, Plaintiff Laura Swanson, Plaintiff Ann Blocker, Plaintiff Billie Fitts, Plaintiff April Kowalsky, Plaintiff Charles Barber, Plaintiff Bar bara Marten, Plaintiff Mary Dacus, Plaintiff Pamela Trull, Plaintiff Jullian Ellis, Plaintiff Katie Durham, Plaintiff Dallas Hack, Plaintiff George Trent, Plaintiff Ward Salisbury, Plaintiff Judy Bucker, Plaintiff Sharon Byrns, Plaintiff Le anne Hanson, Plaintiff William Prestay, Plaintiff David Young, Plaintiff Kevin Foley, Plaintiff Sara Bliven, Plaintiff Kelly Boram, Plaintiff Pilar Brock, Plaintiff Tracey Bennett, Plaintiff Rick Garner, Plaintiff Stephen Trull, Plaintiff I sebell Brannen, Plaintiff John Sauerheber, Plaintiff Judy Garner, Plaintiff Robert Kulikowski, Plaintiff Melissa Kemp, Plaintiff Erlinda Brockman, Plaintiff Linda McElroy, Plaintiff Carol Brandon, Plaintiff Kristine Roy motion is DENIED. Signed by District Judge John A. Ross on 12/30/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ISEBELL BRANNEN, et al.,
Plaintiffs,
vs.
ETHICON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 4:13CV1251 JAR

MEMORANDUM AND ORDER
This matter is before the court on Plaintiffs’ Motion to Remand (“Motion”) (ECF No. 6).
This motion is fully briefed and ready for disposition.
BACKGROUND
On or around June 27, 2012, the Brannen 1 Plaintiffs filed their Petition (hereinafter
“Complaint” or “Compl.”; ECF No. 5) against Defendants in the Circuit Court of the St. Louis
City, State of Missouri.

Plaintiffs allege a product defect case in connection with the

“development, design, testing, labeling, packaging, promoting, advertising, marketing,
distribution, and selling of Defendants’ Gynecare Transvaginal Tape mesh products, which
include Gynecare TVT, Gynecare TVT-O and Gynecare TVT-S[.]” (Compl., ¶1).
The Brannen Plaintiffs filed their initial Motion for Assignment of Trial Judge in the above
styled action on February 15, 2013. Within their Motion for Assignment, Plaintiffs petitioned the
state court to assign not only Brannen but also “several state actions against manufacturers of other

1

Like the parties, the Court refers to these actions individually by the names of the first named
plaintiffs, Isebell Brannen, Elynda Valle, and Kelly Strantz, and collectively as “the Ethicon
cases”. Brannen, Valle and Stranz all are matters filed solely against the same Defendants.
1

mesh products, namely Defendant Coloplast, American Medical Systems, and Boston Scientific”
to a single “trial judge.” (ECF No. 1-4). When Plaintiffs filed the Motion for Assignment in
February, neither Valle, nor Stranz had been filed. On June 3, 2013, plaintiffs filed a Motion for
Assignment of Trial Judge in the Valle state court proceeding. (Notice of Removal, ¶3; ECF No.
1-3). In that motion, the plaintiffs asked that the Ethicon cases—Valle (66 plaintiffs), Brannen
(81 plaintiffs), and Strantz (34 plaintiffs)—be assigned to a single trial judge. Defendants contend
that this was the first time that the plaintiffs sought the joint trial of 100 or more plaintiffs. (Id.).
The motion to assign the Ethicon cases to a single trial judge was heard on June 6, 2013, at the
same time as identical motions filed in cases against three other mesh manufacturers, Boston
Scientific Corporation, American Medical Systems, Inc., and Coloplast Corporation. (Notice of
Removal, ¶6). On June 6, 2013, Judge Philip D. Heagney heard arguments on motions to assign
cases in Dawn Atwell, et al. v Boston Scientific, et al.; Sarah Aldridge, et al. v. American Medical
Systems, Inc.; Doris Johnson, et al. v Coloplast Corporation, et al.; and Brannen v. Ethicon, et al.
(ECF No. 6-1 at 2). At the June 6, 2013 hearing, the plaintiffs detailed the process the proposed:
Our request is simple. We want it assigned to one judge, and each one of those
cases will proceed individually according to the Missouri Rules of Civil Procedure,
and if that judge who is assigned to all of those cases wants to discuss making other
procedures, I guess that’s up to that judge.
(ECF No. 6-1at 2). However, the plaintiffs’ counsel also stated:
[O]ur motion is to have it assigned to the judge that’s going to try the case because
of the complexity that’s going to occur all the way through, that he should be the
one to marshal how the cases is going to be developed. … So it makes no sense for
me to try to tell this Court what would be the best way to go and the protocol.
That’s going to be up to the judge that’s going to end up hearing the pretrial
motions and ultimately try the case. You’ll understand, your Honor, and you
probably found out, we’ve got multiple plaintiffs. There’s going to be a process in
which to select the bellweather case to try, okay.

(ECF No. 1, ¶7).

2

Defendants filed their Notice of Removal on July 1, 2013. In the Notice of Removal,
Defendants assert that these cases are a “mass action” under the Class Action Fairness Act of 2005
(“CAFA”) and therefore there is federal court jurisdiction.

(ECF No. 1 at 3); 28 U.S.C.

§§1332(d), 1453(a) and (b). “[T]he term ‘mass action’ means 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,” §1332(d)(11)(B)(i), but does not
include an action in which “the claims have been consolidated or coordinated solely for pretrial
proceedings,” §1332(d)(11)(B)(i)(IV). “Although plaintiffs in a mass action, unlike in a class
action, do not seek to represent the interests of parties not before the court, CAFA provides that a
qualifying mass action ‘shall be deemed to be a class action’ removable to federal court under the
Act, so long as the rest of CAFA's jurisdictional requirements are met.” Tanoh v. Dow Chem. Co.,
561 F.3d 945, 952 (9th Cir. 2009, citing 28 U.S.C. § 1332(d)(11)(A); Lowery v. Alabama Power
Co., 483 F.3d 1184, 1195 (11th Cir. 2007)(“‘[A] mass action shall be deemed to be a class action’
subject to certain other CAFA provisions.”). CAFA “confers federal jurisdiction over class
actions where, among other things, 1) there is minimal diversity; 2) the proposed class contains at
least 100 members; and 3) the amount in controversy is at least $5 million in the aggregate.”
Raskas v. Johnson & Johnson, 719 F.3d 884, 886-87 (8th Cir. 2013); Plubell v. Merck & Co., 434
F.3d 1070, 1071 (8th Cir.2006) (citing 28 U.S.C. § 1332(d)). The parties do not dispute that the
required minimal diversity of citizenship exists and the amount in controversy exists (whether
measured in the aggregate or viewed on a plaintiff-by-plaintiff basis). (ECF No. 7 at 6).
STANDARD FOR REMOVAL/MOTION FOR REMAND
“Removal statutes are strictly construed, and any doubts about the propriety of removal are
resolved in favor of state court jurisdiction and remand.” Manning v. Wal-Mart Stores East, Inc.,
304 F.Supp.2d 1146, 1148 (E.D. Mo. 2004) (citing Transit Cas. Co. v. Certain Underwriters at
3

Lloyd=s of London, 119 F.3d 619, 625 (8th Cir. 1997), cert. denied, 522 U.S. 1075, 139 L. Ed. 2d
753, 118 S. Ct. 852 (1998)). The party seeking removal and opposing remand has the burden of
establishing jurisdiction.

Cent. Iowa Power Coop. v. Midwest Indep. Transmission Sys.

Operator, 561 F.3d 904, 912 (8th Cir. 2009).
DISCUSSION
The primary issue before us is whether three individual state court actions, each with fewer
than one hundred plaintiffs, should be treated as one “mass action” eligible for removal to federal
court under CAFA. A “mass action” includes the claims of at least one hundred plaintiffs
“proposed to be tried jointly.” § 1332(d)(11). In addition, Plaintiffs also contend that the notice of
removal was untimely.
A. Timely Filed
Plaintiffs assert that this case must be remanded because Defendants’ Notice of Removal
was untimely. 28 U.S.C. §1446(b)(1) requires a defendant to file a notice of removal within 30
days after the receipt by the defendant of the pleading upon which removal is based.
In Atwell v. Boston Scientific Corporation, No. 13-8031 (8th Cir. Nov. 18, 2013), the
Eighth Circuit addressed this precise issue. Atwell was one of the vaginal mesh cases discussed
during the June 6, 2013 hearing in St. Louis City Circuit Court. The Atwell defendants removed
that action to federal court, and the district court judge granted the motion to remand. On appeal
pursuant to 28 U.S.C. §1453(c)(1), the Eighth Circuit reversed the district court and held that
federal court jurisdiction was proper under CAFA’s mass action provision.
In Atwell, the Eighth Circuit noted that “[t]he thirty-day time limit begins running when a
plaintiff ‘explicitly discloses’ she is seeking a remedy that affords a basis for federal jurisdiction.”
Atwell, at 4 (citing Knudson v. Sys. Painters, Inc., 634 F.3d 968, 974 (8th Cir. 2011)). The Eighth
Circuit held that “plaintiffs’ assignment motions attempted to limit their request to coordination of
4

pretrial proceedings, which would keep the cases outside the definition of a mass action.” Atwell,
at 4, citing 28 U.S.C. §1332(d)(11)(B)(ii)(IV). The Eighth Circuit held that it was “[o]nly when
plaintiffs’ attorneys made clear the extent of consolidation being sought at the state court motions
hearing did Boston Scientific have a basis for removal.” Atwell, at 4. The Eighth Circuit
determined that plaintiffs’ counsel’s oral statements, when transcribed, satisfied §1446(b)(3)’s
“other paper” requirement. Id.
As instructed in Atwell, the Court holds that removal was timely because it was done
within 30 days of the hearing on the Motion for Assignment of Trial Judge on June 6, 2013. The
court holds that the February 15, 2013 motion did not propose to try jointly more than 100
plaintiffs’ claims for monetary relief against Defendants. Rather, the motion sought to join cases
that were filed against other, unrelated defendants. (ECF No. 7 at 5). It was not until the June 3,
2013 Motion for Assignment of Trial Judge, where the plaintiffs proposed that the claims of more
than 100 plaintiffs against these Defendants should be assigned to a single “trial judge” or until the
June 6, 2013 motion hearing that the plaintiffs “explicitly disclose[d]” that they were seeking to
consolidate these cases for trial. In either event, the Court finds that Defendants’ Notice of
Removal was timely and, therefore, denies the Motion to Remand on this basis.
B. Tried Jointly
Although CAFA contains language that claims “consolidated or coordinated solely for
pretrial proceedings,” do not qualify as “mass actions” 28 U.S.C. § 1332(d)(11)(B)(ii)(IV), the
Eighth Circuit has instructed that the instant situation is distinguishable. In Atwell, the Eighth
Circuit held that “the motions for assignment to a single judge filed by the three plaintiff groups to
the same state circuit court, combined with plaintiffs’ candid explanation of their objectives,
required denial of the motions to remand.” Atwell, at 10. These factors are all present in the
instant case. In the June 3, 2013 motion and at the June 6, 2013 hearing, Plaintiffs’ counsel
5

indicated their intent to consolidate the cases for one judge for trial. Therefore, the Court finds
that removal was proper under 28 U.S.C. §1332(d)(11) and denies the Motion to Remand. See
Atwell, at 10; Stranz v. Johnson & Johnson, Inc., No. 13CV1247RWS, slip op. No. 31) (E.D. Mo.
Dec. 11, 2013).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff=’s Motion for Remand [6] is DENIED.
Dated this 30th day of December, 2013.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

6