United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CAROL E. JACKSON, District Judge.
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.
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. 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).
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 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 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 ...