Burton v. Express Scripts, Inc.

Filing 42

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Plaintiff shall, within 14 days from the date of this Memorandum and Order, file a motion for leave to amend, and shall attach to the motion his proposed amended complaint.. Signed by District Judge Audrey G. Fleissig on 3/13/2018. (NEP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERICK BURTON, individually and on
behalf of all others similarly situated
Plaintiffs,
v.
EXPRESS SCRIPTS, INC., et al.,
Defendants.

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No. 4:17-cv-02279-AGF

MEMORANDUM AND ORDER
This matter is before the Court on the parties’ responses to the Court’s Order to
Show Cause why this case, removed under the Class Action Fairness Act (“CAFA”), 28
U.S.C. § 1332(d), should not be remanded for lack of subject matter jurisdiction. On
March 5, 2018, the Court granted Defendants’ motion to dismiss Plaintiff’s first amended
complaint for failure to state a claim. The Court dismissed the first amended complaint
without prejudice, noting that Plaintiff had filed but withdrawn a motion for leave to file
a second amended complaint, and had indicated at oral argument that he intended to file a
new motion for leave to amend in order to limit his claims and his class definition. The
Court further noted that Plaintiff’s admissions at oral argument regarding the futility of
his proposed nationwide class action raised serious doubts about whether this Court ever
had subject matter jurisdiction in this case. Therefore, the Court ordered the parties to
show cause why the case should not be remanded for lack of subject matter jurisdiction.

In response, Plaintiff states that he concurs that the Court lacks subject matter
jurisdiction.1 Defendants, on the other hand, argue that because Plaintiff’s attempt to
maintain the suit as a class action was not frivolous—even if his overly broad class
definition, which brought the case within CAFA jurisdiction, was implausible—the Court
had and still has subject matter jurisdiction. Thus, Defendants ask that the Court “retain
jurisdiction over this case, and in the event Plaintiff intends to offer a further proposed
amendment to the complaint, this Court should evaluate [the] motion for leave . . . .”
ECF No. 41 at 9.
Upon careful review of the record and the parties’ arguments, the Court concludes
that the facts alleged in the original complaint plausibly gave rise to CAFA jurisdiction at
the time of removal, which is not lost if Plaintiff now attempts to narrow the class
definition. Therefore, the Court retains jurisdiction and will give Plaintiff 14 days to file
any further motion for leave to amend.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff shall, within 14 days from the date of
this Memorandum and Order, file a motion for leave to amend, and shall attach to the
motion his proposed amended complaint.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 13th day of March, 2018.
1

Plaintiff has never moved to remand this case to state court.
2