Teague v. Johnson & Johnson

749 F.3d 879
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 11, 2014
Docket13-6287, 13-6290, 13-6293, 13-6288, 13-6291, 13-6294, 13-6289, 13-6292, 13-6295
StatusPublished
Cited by70 cases

This text of 749 F.3d 879 (Teague v. Johnson & Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Teague v. Johnson & Johnson, 749 F.3d 879 (10th Cir. 2014).

Opinions

BRISCOE, Chief Judge.

In the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d), 1453 (“CAFA” or “Act”), Congress authorized the removal of certain class actions from state to federal court. The Act’s primary objective was to “ensur[e] Federal court consideration of interstate cases of national importance.” Standard, Fire Ins. Co. v. Knowles, — U.S. -, 133 S.Ct. 1345, 1350, 185 L.Ed.2d 439 (2013) (internal quotation marks omitted). To this end, CAFA also provides for the removal of “mass actions” that do not qualify as traditional class actions, see Fed.R.Civ.P. 23, but which otherwise meet the Act’s criteria, Visendi v. Bank of Am., N.A., 733 F.3d 863, 867 (9th Cir.2013); see also 28 U.S.C. § 1332(d)(11)(A), (B).

CAFA defines a mass action 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 and fact.” Id. § 1332(d)(ll)(B)(i). The Act excludes from the term “mass action,” infer alia, any civil action in which either “the claims are joined upon motion of a defendant,” or “the claims have been consolidated or coordinated solely for pretrial proceedings.” Id. § 1332(d)(ll)(B)(ii)(II), (IV).

The controversy before us began when 702 plaintiffs from 26 different states and the Commonwealth of Puerto Rico filed twelve nearly identical product liability actions against the defendants in the District Court of Pottawatomie County, Oklahoma. The defendants are manufacturers of tran-svaginal mesh medical devices. The plaintiffs are women who were implanted with the devices and their husbands, who assert loss-of-consortium claims.

None of the individual actions contained 100 or more plaintiffs. Each of the actions included at least one New Jersey resident plaintiff. Each complaint specifically disclaimed federal question and federal diversity jurisdiction, and included provisions that admitted the claims had been joined for the purpose of pretrial discovery and proceedings but disclaimed joinder for trial purposes. All twelve actions were assigned to the same state court judge.

The defendants, corporate residents of New Jersey, removed the actions to the United States District Court for the Western District of Oklahoma, relying on both diversity jurisdiction and CAFA removal jurisdiction. They argued that complete diversity existed between the parties because in each action, the New Jersey citi[886]*886zen plaintiff had been fraudulently joined and should therefore be disregarded for diversity purposes. They further contended that jurisdiction was available under CAFA’s “mass action” provision because, by filing all of the suits in the same court before the same judge, plaintiffs had proposed a joint trial of claims involving more than 100 plaintiffs.1

Plaintiffs moved to remand eleven of the actions, involving 650 plaintiffs,2 to state court. The district court granted their motion. It declined to adopt the procedural misjoinder doctrine advocated by the defendants, and concluded that plaintiffs had not in fact proposed a joint trial of their claims, as required for CAFA removal jurisdiction. Halliburton v. Johnson & Johnson, 983 F.Supp.2d 1355, Nos. CIV-13-832-L, CIV-13-833-L, CIV-13-834-L, CIV-13-836-L, CIV-13-838-L, CIV-13-839-L, CIV-13-840-L, CIV-13-841-L, CIV-13-844-L, CIV-13-845-L, CIV-13-846-L, 2013 WL 5719016 (W.D.Okla. Oct. 18, 2013). We now affirm the district court’s order remanding these cases to state court.

I. APPELLATE JURISDICTION

Ordinarily, an order remanding a removed case to state court is not appeal-able. 28 U.S.C. § 1447(d). CAFA provides an exception by permitting a court of appeals to review an order remanding a class action — including a mass action — to state court “if application is made to the court of appeals not more than 10 days after entry of the order.” Id. § 1453(c)(1). The defendants filed a timely application to appeal. We therefore have jurisdiction to review the order of remand under CAFA. We discuss our jurisdiction to review the district court’s determination concerning diversity jurisdiction in Part III, infra.

II. REMAND UNDER CAFA

“We review the district court’s ruling on the propriety of removal de novo.” Frederick v. Hartford Underwriters Ins. Co., 683 F.3d 1242, 1245 (10th Cir.2012). The issue here is a narrow one: whether a joint trial involving the claims of 100 or more persons has been proposed, thus making plaintiffs’ claims a “mass action” removable to federal court. At the outset, we note that it seems clear that the plaintiffs’ choice to file separate suits, each containing fewer than 100 plaintiffs, cannot simply be disregarded as procedural gamesmanship and their “civil action” summarily treated as a single one containing 650 plaintiffs. On that point, we adopt the well-established principle, explained in several persuasive cases from our sister circuits, that “state 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 — 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); see also Scimone v. Carnival Corp., 720 F.3d 876, 884 (11th Cir.2013) (“Every other court of appeals confronted with this question has come to the same conclusion: that plaintiffs have the ability [887]*887to avoid § 1332(d)(11)(B)(i) jurisdiction by filing separate complaints naming less than 100 plaintiffs and by not moving for or otherwise proposing joint trial in the state court.”); Tanoh v. Dow Chem. Co., 561 F.3d 945, 953 (9th Cir.2009).

Plaintiffs have conceded that their claims involve common questions of law and fact. The real battle here is over whether the plaintiffs’ filing of these cases in the same Oklahoma court, even if permissibly divided into eleven different actions, proposed a joint trial involving all of their claims. In support of their argument that it did, the defendants emphasize that “a joint trial can take different forms as long as the plaintiffs’ claims are being determined jointly.” In re Abbott Labs., Inc., 698 F.3d 568, 573 (7th Cir.2012). By placing their claims before the single Oklahoma judge, they argue, the plaintiffs have implicitly proposed a joint trial under CAFA through their litigation conduct.

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