Smith et al v. Medtronic Inc et al

Filing 28

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to remand this action [Doc. # 16 ] is granted. IT IS FURTHER ORDERED that the Clerk of the Court shall remand this action to the Twenty-Second Judicial Circuit Court of Missouri (City of St. Louis) from which it was removed. IT IS FURTHER ORDERED that plaintiffs request for attorneys fees and costs as to the removal is denied. Signed by District Judge Carol E. Jackson on 10/30/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOYCE SMITH, et al.,

)
)
)
)
)
)
)
)
)

Plaintiffs,
vs.
MEDTRONIC, INC., et al.,
Defendants.

Case No. 4:14-CV-01636-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion to remand this case to
the Twenty-Second Judicial Circuit Court of St. Louis, Missouri for lack of subject
matter jurisdiction.

The defendants have responded, and the issues are fully

briefed.
I.

Background.

Plaintiffs in this case are ninety-nine individuals seeking to recover damages
for injuries allegedly caused by the InFUSE™ Bone Graft and LT-CAGE™ Lumbar
Tapered Fusion Device (hereinafter, “Infuse”) manufactured and distributed by the
defendants. Plaintiffs assert claims of negligence, strict liability, fraud, breach of
warranty, and violation of state consumer protection and merchandising practices
statutes.
Defendants removed the action pursuant to 28 U.S.C. § 1453, which governs
removal of class actions.

Defendants assert that jurisdiction is premised on the

Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d), in that this case is a “mass
action” as defined in 28 U.S.C. § 1332(d)(11)(B).

Two similar lawsuits involving

the Infuse device have also been removed to this Court.

1

In Anders, et al. v.

Medtronic, Inc., et al., No. 4:14-CV-1637 (ERW), there are ninety-nine plaintiffs
and in Hendrich, et al. v. Medtronic, Inc., et al., No. 4:14-CV-1635 (AGF), there are
ninety-three plaintiffs.

The Anders and Hendrich cases also originated in the

Twenty-Second Judicial Circuit Court. Prior to their removal, all three cases were
consolidated by the state court for pretrial proceedings. Defendants assert that
plaintiffs have either explicitly or implicitly proposed that the three cases be joined
for trial, thus bringing the number of plaintiffs above the threshold required for the
mass action designation and, hence, federal jurisdiction.
II.

Legal Standard.

“A defendant may remove a state law claim to federal court only if the action
originally could have been filed there.” In re Prempro Products Liability Litigation,
591 F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th
Cir. 2005)). “The defendant bears the burden of establishing federal jurisdiction by
a preponderance of the evidence.” Altimore v. Mount Mercy College, 420 F.3d 763,
768 (8th Cir. 2005). “All doubts about federal jurisdiction should be resolved in
favor of remand to state court.” In re Prempro Products Liability Litigation, 591 F.3d
at 620 (citing Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007)). A case
must be remanded if, at any time, it appears that the district court lacks subject
matter jurisdiction. 28 U.S.C. § 1447(c); Fed. R. Civ. P. 12(h)(3).
III.

Discussion.
A. Explicit or implicit proposal for joint trial

Under CAFA, the federal district courts have original jurisdiction over certain
class actions, including “mass actions.”

28 U.S.C. § 1332(d).

The term “mass

action” is defined as a civil action “in which monetary relief claims of 100 or more

2

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) (emphasis
added). However, a CAFA mass action is not a case where “the claims are joined
upon motion of a defendant,” or where “the claims have been consolidated or
coordinated solely for pretrial proceedings.” § 1332(d)(11)(B)(ii)(II, IV) (emphasis
added).
Even where “plaintiffs concede that their respective individual claims ‘involve
common questions of law or fact,’ 28 U.S.C. § 1332(d)(11)(B)(i), state court
plaintiffs with common claims against a common defendant may bring separate
actions, each with fewer than 100 plaintiffs, to avoid federal jurisdiction under
CAFA—unless their claims are ‘proposed to be tried jointly.’” Atwell v. Boston
Scientific Corp., 740 F.3d 1160, 1162–63 (8th Cir. 2013) (collecting cases). The
proposal for a joint trial may be explicit or implicit. Koral v. Boeing Co., 628 F.3d
945, 947 (7th Cir. 2011). The determination of whether claims in a putative mass
action have been proposed to be tried jointly is necessarily a fact intensive inquiry
that requires examination of both the “initial pleading” and, if the case was not
initially removable on that basis, any “pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3); see Atwell, 740 F.3d at 1162.
In Atwell, three groups of plaintiffs brought product liability actions in the St.
Louis Circuit Court, claiming that they were injured by the defendants’ transvaginal
mesh devices. Each group consisted of fewer than 100 plaintiffs. Each group of
plaintiffs filed motions asking that all of the cases be assigned to a single judge for
purposes of discovery and trial. Id. at 1161. The cases were removed to federal

3

court, and two were remanded. In determining whether remand was appropriate,
the court of appeals wrote:
[T]he critical issue becomes whether the three groups of plaintiffs
proposed that their claims be “tried jointly,” in which case
§ 1332(d)(11)(B)(i) applies and the cases are removable, or simply
asked that their respective claims be “consolidated or coordinated
solely for pretrial proceedings,” in which case § 1332(d)(11)(B)(ii)(IV)
applies and the cases are not removable. The answer to this question
requires careful review of the proceedings in the City of St. Louis
Circuit Court.
Id. at 1163.
As instructed by Atwell, this Court has examined the voluminous state court
record to determine whether the plaintiffs in this action or in the Anders or
Hendrich action either explicitly or implicitly proposed that their claims be tried
jointly. Id. (quoting Koral v. Boeing Co., 628 F.3d 945, 947 (7th Cir. 2011)). Based
on that review, the Court finds that no such request was expressly made or can be
inferred.
Unlike the plaintiff groups in Atwell, the plaintiffs here did not request that
their case and the Anders and Hendrich cases be assigned to a single judge, nor did
they seek consolidation of the three cases.

The defendants’ quotation of

statements made by plaintiffs’ counsel in the state court record are either taken out
of context or mischaracterized and do not support defendants’ claim that the Smith
plaintiffs “implicitly” wanted the three case to be tried jointly. For example, when
counsel for the Smith plaintiffs wrote, “[h]ere, there are numerous questions of fact
concerning the conduct of Defendants common to all Plaintiffs,” the reference was
to all plaintiffs in the Smith case, not all plaintiffs in all three cases. [Doc. #1-4 at
357; see also id. at 519, 523–24.]

Moreover, the statement was made in a

memorandum responding to defendants’ argument that the Smith plaintiffs were

4

not properly joined and that each of the Smith plaintiffs’ claims should be tried
separately. Likewise, the statements that the “[p]etition is replete with common
facts alleging improper and illegal behavior that harmed all of the Plaintiffs” and
that “severance of Plaintiffs’ claims would needlessly multiply the number of causes
of action and the number of judges and juries needed to address the same issue”
were clearly made in reference to the ninety-nine plaintiffs in the Smith case only.
[Doc. #1-4 at 357.] Finally, the Smith plaintiffs’ reference to Missouri’s permissive
joinder rule, Mo. Sup. Ct. R. 52.05(a), was made in the context of the assertion
that their ninety-nine claims should remain joined—not that their claims should be
joined with those of the Anders and Hendrich plaintiffs.
Of course, plaintiffs in separate cases cannot argue against joinder of the
cases and simultaneously seek to have those cases brought before the same judge
for separate trials, because that is an implicit request to consolidate for a joint trial.
Atwell, 740 F.3d at 1163–64.

But that is not what has occurred in this case.

Moreover, the state court’s Administrative Order consolidated the three cases “for
all pretrial matters only.” Upon completion of the pretrial matters, “each case” was
to be returned to the division responsible for assigning cases for trial. There is no
indication that the state court anticipated that the Smith, Anders and Hendrich
cases would be assigned to a single judge for a joint trial.
The plaintiffs’ acknowledgment of the policy favoring joint trials in cases
where common questions of fact and law predominate cannot alone be construed as
an implicit proposal for the joinder of the three groups of cases.

“[S]tate court

plaintiffs with common claims against a common defendant may bring separate
cases with fewer than 100 plaintiffs each to avoid federal jurisdiction under CAFA—

5

unless their claims are ‘proposed to be tried jointly.’” Atwell, 740 F.3d at 1162
[quoting Romo v. Teva Pharm. USA, Inc., 731 F.3d 918, 922 & n.1 (9th Cir. 2013)
(emphasis added)]. If the policy does not preclude what plaintiffs have done here
(i.e., carefully structuring each case so as to avoid CAFA jurisdiction), then certainly
plaintiffs’ acknowledgment of the policy cannot be said to manifest a desire for
joinder of the cases.
The Court finds unpersuasive the defendants’ argument that an implicit
proposal for joinder is demonstrated by the possibility that plaintiffs will claim in
subsequent trials that the results of the first trial should be given preclusive effect.
If the 291 plaintiffs involved in the Smith, Anders and Hendrich cases had instead
brought individual actions against the defendants, the fact that 290 of them might
benefit from rulings made in the first trial would not support an argument for
joinder.
The defendants have pointed to no portion of the state court record reflecting
an explicit request by plaintiffs for joinder of the three cases. And, as discussed
above, the Court finds no implicit proposal for joinder. Because this case is brought
by fewer than 100 plaintiffs, it is not a mass action and does not meet the
jurisdictional requirements of CAFA. Thus, remand is required.
B. Timeliness of removal
Defendants’ attempt to remove is also time-barred. 28 U.S.C. § 1446(b)(1)
requires a defendant to file a notice of removal within 30 days after the defendant
receives the pleadings upon which removal is based. The time limit begins when a
plaintiff “explicitly discloses she is seeking a remedy that affords a basis for federal
jurisdiction.” Atwell, 740 F.3d at 1162 (citing Knudson v. Sys. Painters, Inc., 634

6

F.3d 968, 974 (8th Cir. 2011)). A pleading includes a copy of an amended pleading,
motion, order, or other paper. 28 U.S.C. § 1446(b)(3).
Defendants’ argument for removal is based on statements in plaintiffs’
memorandum in opposition to defendants’ motion to dismiss, filed on August 22,
2014, and plaintiffs’ sur-reply, filed on September 18, 2014. [Doc. #1-4 at 282,
498.] As discussed above, however, those statements neither explicitly nor
implicitly seek a joint trial with the Anders and Hendrich plaintiffs, so they are not a
proper basis for removal under CAFA. Because those statements were not requests
for a joint trial, defendants have not sought removal on the basis of any amended
pleading, motion, order, or other paper that was filed within 30 days of their notice
of removal that would qualify this case as a mass action. Therefore, defendants’
attempt at removal is untimely as well.
C. Attorney’s fees and costs
The plaintiffs request that the defendants be ordered to pay the costs and
attorney’s fees incurred as a result of removal, as permitted by 28 U.S.C.
§ 1447(c). “[T]he standard for awarding fees should turn on the reasonableness of
the removal. Absent unusual circumstances, courts may award attorney’s fees
under § 1447(c) only where the removing party lacked an objectively reasonable
basis for seeking removal. Conversely, when an objectively reasonable basis exists,
fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005)
(citations

omitted).

After

considering

the

arguments

presented

in

the

memorandum in opposition to remand, the Court finds that defendants had an
objectively reasonable basis to seek removal.
Accordingly,

7

IT IS HEREBY ORDERED that plaintiffs’ motion to remand this action [Doc.
#16] is granted.
IT IS FURTHER ORDERED that the Clerk of the Court shall remand this
action to the Twenty-Second Judicial Circuit Court of Missouri (City of St. Louis)
from which it was removed.
IT IS FURTHER ORDERED that plaintiffs’ request for attorney’s fees and
costs as to the removal is denied.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 30th day of October, 2014.

8