Case: 13-12291 Date Filed: 07/01/2013 Page: 1 of 22
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12291
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-23505-WPD
GEOFFREY SCIMONE,
NANCY SCIMONE,
MARIO LOFARO,
NANCY LOFARO,
AGATINA VINCENZA MARFISI, et al.,
Plaintiffs - Appellees,
versus
CARNIVAL CORPORATION,
CARNIVAL CORPORATION & PLC,
COSTA CRUISE LINES, INC.,
COSTA CROCIERE S.P.A.,
JOSEPH FARCUS, ARCHITECT, P.A.,
Defendants - Appellants,
JOHN DOES, et al.,
Defendants.
Case: 13-12291 Date Filed: 07/01/2013 Page: 2 of 22
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 1, 2013)
Before CARNES, HULL and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
In 2012, one of Appellants’ cruise ships, the Costa Concordia, ran aground
off the coast of Italy. In the wake of the accident, many of the Costa Concordia’s
passengers sued Appellants (collectively referred to in this opinion as “Carnival”),
filing dozens of actions in forums both in the United States and around the world.
This appeal concerns two separate actions in particular, filed by groups of fifty-six
and forty-eight plaintiffs in the Circuit Court of the Eleventh Judicial Circuit of
Florida. Carnival removed both actions to the United States District Court for the
Southern District of Florida, claiming that the district court had subject-matter
jurisdiction under the mass-action provision of the Class Action Fairness Act of
2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of
28 U.S.C.). Both groups of plaintiffs moved for remand to the state court on the
ground that the district court lacked jurisdiction, and the district court granted
plaintiffs’ motions in February 2013.
2
Case: 13-12291 Date Filed: 07/01/2013 Page: 3 of 22
We granted Carnival permission to appeal in order to resolve an issue of first
impression in this Circuit: whether a defendant has the right, pursuant to 28 U.S.C.
§§ 1332(d)(11), 1441, and 1453, to remove multiple and separate lawsuits to
federal court as mass actions if the lawsuits in the aggregate contain 100 or more
plaintiffs whose claims revolve around common questions of law or fact, but
neither the plaintiffs nor the state court have proposed that 100 or more persons’
claims be tried jointly. Under the plain language of CAFA and § 1332(d)(11), the
district court lacked subject-matter jurisdiction over the plaintiffs’ two separate
actions unless they proposed to try 100 or more persons’ claims jointly.
Consequently, the cases were improvidently removed and should have been
remanded, and we affirm the district court’s order.
I.
This case begins with a shipwreck. The plaintiffs were all passengers on the
Costa Concordia, a large cruise ship owned and operated by Carnival and its
related corporate entities. On January 13, 2012, the Costa Concordia left Port
Civitavecchia, Italy, to embark on a Mediterranean cruise. The ship’s captain
apparently decided to execute a maneuver known as a “bow” or “sail-by-salute,”
which would bring the ship close to a nearby island. Disaster struck: the ship got
too close, hit an underwater rock, and began listing to one side, eventually
necessitating a complete evacuation. Thirty-two people died in the accident.
3
Case: 13-12291 Date Filed: 07/01/2013 Page: 4 of 22
Unsurprisingly, these events spawned many lawsuits. Less than two weeks
after the accident, six plaintiffs, including Appellee Scimone, filed a complaint
(“Scimone I”) against Carnival and related corporate entities in the Circuit Court of
the Eleventh Judicial Circuit of Florida, alleging claims for negligence,
professional negligence on the part of the ship’s architect, and intentional torts.
Additional potential plaintiffs, who had traveled on the Costa Concordia, asked to
join the suit, and the Scimone I plaintiffs soon amended their complaint to name
thirty-nine plaintiffs in total. In the ensuing weeks, yet another sixty-five Costa
Concordia passengers indicated their desire to join the Scimone I action. Rather
than adding these potential plaintiffs to the complaint, which would bring the total
number of persons whose claims would be tried jointly over 100, the Scimone I
plaintiffs voluntarily dismissed their complaint.
The original thirty-nine plaintiffs from Scimone I divided themselves into
two groups and distributed the additional sixty-five Costa Concordia passengers
between those two groups. In July 2012, the two groups filed two separate
complaints in state court, each of which named less than 100 plaintiffs. One
complaint (“Scimone II”) ended up containing forty-eight plaintiffs, while the
other complaint (“Abeid-Saba”) contained the remaining fifty-six plaintiffs. The
two complaints contain essentially the same allegations against Carnival, and there
4
Case: 13-12291 Date Filed: 07/01/2013 Page: 5 of 22
is no question that all 104 plaintiffs’ claims concern common questions of law and
fact.
The two groups of plaintiffs served their complaints on defendants in late
August or early September 2012. Neither group of plaintiffs moved for
consolidation of the two cases in state court. Nonetheless, on September 26, 2012,
Carnival removed both Scimone II and Abeid-Saba to the United States District
Court for the Southern District of Florida. Carnival argued for removal based on
the mass-action provision of the Class Action Fairness Act and based on federal
courts’ exclusive jurisdiction over cases raising “substantial issues of federal
common law relating to foreign relations.”
Subsequently, Carnival filed two motions to dismiss each case, based on the
forum selection clause of plaintiffs’ contracts and forum non conveniens. In turn,
both groups of plaintiffs filed motions to remand their actions to state court
pursuant to 28 U.S.C. § 1447. As for CAFA’s mass-action jurisdiction, the
plaintiffs argued that “federal jurisdiction does not exist under the ‘mass action’
provision of CAFA, where the action was brought on behalf of . . . less than . . . the
number required for removal under CAFA’s definition of a ‘mass action,’” and
where “Plaintiffs have not and do not propose that this case be tried jointly with
any other separate court action.” The plaintiffs also contended that the case did not
implicate foreign relations, rendering removal on that ground improvident as well.
5
Case: 13-12291 Date Filed: 07/01/2013 Page: 6 of 22
After briefing on the plaintiffs’ motions to remand was complete, the district
court granted both the Scimone II and Abeid-Saba plaintiffs’ motions and
remanded both cases to state court. The district court concluded that defendants
could not remove pursuant to the mass-action provision of CAFA: “The problem
for removal jurisdiction under the CAFA is that neither suit has 100 plaintiffs
alone. It is also a problem that the Plaintiffs have not proposed for the cases to be
tried jointly. Therefore, the CAFA does not supply a basis for removing these two
identical lawsuits.” The district court also rejected Carnival’s assertion that the
case implicated federal common law regarding foreign policy. The district court
therefore remanded both cases and denied all pending motions -- including
Carnival’s motions to dismiss -- as moot.
Pursuant to 28 U.S.C. § 1453(c)(1), Carnival petitioned for permission to
appeal the district court’s remand orders. We granted Carnival’s petition on May
21, 2013.
II.
We review an issue of statutory interpretation de novo. United States v.
Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004). We also review a district court’s
decision to remand a case to state court for lack of subject-matter jurisdiction de
novo. Lowery v. Ala. Power Co., 483 F.3d 1184, 1193 (11th Cir. 2007); see 28
U.S.C. § 1453(c)(1) (granting us jurisdiction to hear an appeal from a district
6
Case: 13-12291 Date Filed: 07/01/2013 Page: 7 of 22
court’s grant or denial of a motion to remand a class action, notwithstanding 28
U.S.C. § 1447(d)’s general proscription on appellate review of a remand order).
According to Carnival, the district court erred in concluding that it lacked
subject-matter jurisdiction over the two lawsuits pursuant to the mass-action
provision of the Class Action Fairness Act, as codified at 28 U.S.C. § 1332(d)(11).
The district court, however, got it right; Carnival had no right to remove these two
actions pursuant to 28 U.S.C. §§ 1332(d)(11), 1441, and 1453.
The relevant portion of CAFA permits removal of a “mass action” as if it
were a class action removable under § 1332(d), provided that the mass action
satisfies the following conditions:
(i) . . . [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, except that jurisdiction shall exist only over
those plaintiffs whose claims in a mass action satisfy the jurisdictional
amount requirements under subsection (a).
(ii) . . . [T]he term “mass action” shall not include any civil action in
which --
(I) all of the claims in the action arise from an event or
occurrence in the State in which the action was filed, and that
allegedly resulted in injuries in that State or in States
contiguous to that State;
(II) the claims are joined upon motion of a defendant;
(III) all of the claims in the action are asserted on behalf of the
general public (and not on behalf of individual claimants or
7
Case: 13-12291 Date Filed: 07/01/2013 Page: 8 of 22
members of a purported class) pursuant to a State statute
specifically authorizing such action; or
(IV) the claims have been consolidated or coordinated solely
for pretrial proceedings.
28 U.S.C. § 1332(d)(11)(B).
The definition of “mass action” contains several requirements that are not in
dispute in this case. Both parties agree that the plaintiffs’ claims involve common
questions of law or fact -- they all arise out of the same accident -- and that at least
some plaintiffs’ claimed damages exceed the amount-in-controversy requirement
of 28 U.S.C. § 1332(a). The parties contest only whether the numerosity
requirement has been satisfied. In the underlying state-court proceedings, the
plaintiffs filed two separate cases, each of which contained less than 100 plaintiffs
and, therefore, could not satisfy § 1332(d)(11)(B)(i)’s numerosity requirement
standing alone. Carnival nevertheless removed both cases to the United States
District Court for the Southern District of Florida. However, unless the two cases
were “proposed to be tried jointly” prior to removal, CAFA barred it from doing
so.
“[T]he starting point for interpreting” what constitutes a proposal for a joint
trial, and who may make such a proposal pursuant to § 1332(d)(11)(B)(i), “is the
language of the statute itself.” Consumer Prod. Safety Comm’n v. GTE Sylvania,
Inc., 447 U.S. 102, 108 (1980). The key language in the statute defines a mass
8
Case: 13-12291 Date Filed: 07/01/2013 Page: 9 of 22
action as a civil action in which “claims of 100 or more persons are proposed to be
tried jointly.” 28 U.S.C. § 1332(d)(11)(B)(i) (emphasis added). “Propose” means
“to form or declare a plan or intention” or “to offer for consideration, discussion,
acceptance, or adoption.” Webster’s Third New International Dictionary 1819
(2002). Notably, the statute’s passive syntax makes it somewhat ambiguous who
can make the proposal for joint trial. However, at least under these circumstances,
the essential question is whether the two groups of plaintiffs proposed a joint trial
of their claims in the state court.
As to who may make the proposal, the universe of possible subjects is
limited: the statute must be referring to a proposal made by the plaintiff, by the
defendant, or perhaps by the state court acting sua sponte. We leave open the
possibility that the state trial judge’s sua sponte consolidation of 100 or more
persons’ claims could satisfy the jurisdictional requirements of
§ 1332(d)(11)(B)(i). Since neither party has suggested that the state court ordered
or even raised the possibility of a joint trial, we have no occasion to, and do not
decide that question. Nor do either of the parties argue, nor could they, that the
defendant can be the one to propose joint trial in the state court. This much is
obvious from the structure of the exceptions to removal jurisdiction carved out by
CAFA, one of which expressly bars removal of suits where “the claims are joined
upon motion of a defendant.” 28 U.S.C. § 1332(d)(11)(B)(ii)(II). Although
9
Case: 13-12291 Date Filed: 07/01/2013 Page: 10 of 22
Carnival goes to great lengths to insist that this jurisdictional exclusion, by its own
terms, does not apply to the present case, the exclusion nonetheless matters
because it informs our interpretation of the preceding subparagraph that defines
“mass action.” Since we know for sure that a mass action cannot be one joined on
the defendant’s motion, it follows that the proposal must originate either with the
plaintiffs or, perhaps, with the state court.
At a minimum, what is clear from the statute’s text and structure is that the
plaintiffs can propose a joint trial, either by naming 100 or more plaintiffs in a
single complaint or by their litigation conduct at any time prior to defendants’
removal of their action to federal court. If, for instance, plaintiffs initially file
multiple lawsuits but then, on the eve of trial, move to consolidate their cases, this
belated proposal would nonetheless fall within the plain meaning of
§ 1332(d)(11)(B)(i)’s “are proposed to be tried jointly” language. Absent a
proposal or perhaps a sua sponte court determination, however, the federal courts
lack subject-matter jurisdiction over the plaintiffs’ claims. In addition, no one
disputes that the burden of showing that plaintiffs proposed a joint trial rests with
the removing defendant.
Our reading of the statute is fully consonant with four longstanding
principles. First, we assess jurisdictional facts at the time of removal. See Pretka v.
Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010) (“A court’s analysis
10
Case: 13-12291 Date Filed: 07/01/2013 Page: 11 of 22
of [CAFA’s] amount-in-controversy requirement focuses on how much is in
controversy at the time of removal, not later.”); Sierminski v. Transouth Fin. Corp.,
216 F.3d 945, 946 (11th Cir. 2000). This principle, when read along with the
statutory language, necessarily means that the defendant cannot propose joint trial
because the proposal must be made in the state court prior to the defendant’s
attempt to remove the case, and -- pursuant to § 1332(d)(11)(B)(ii)(II) -- the
defendant cannot move for consolidation in state court and subsequently take
advantage of federal removal jurisdiction. Second, as we have long recognized,
plaintiffs are “the master of the complaint” and are “free to avoid federal
jurisdiction,” Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1314 (11th Cir.
2004), by structuring their case to fall short of a requirement of federal jurisdiction.
We permit this so long as the method of avoidance is not fraudulent. See, e.g.,
Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998) (fraudulent
joinder of defendants to defeat diversity jurisdiction). The plaintiffs in this case, as
the masters of the complaint, could choose (as they obviously did) a state forum
rather than a federal one so long as they were willing to undergo the inconvenience
of two separate trials. Third, the burden of establishing removal jurisdiction rests
with the defendant seeking removal. See Lowery, 483 F.3d at 1208 (CAFA did not
alter the “longstanding, near-canonical rule” that the burden of proving
jurisdictional requirements rests with the removing defendant (internal quotation
11
Case: 13-12291 Date Filed: 07/01/2013 Page: 12 of 22
marks omitted)). Finally, when we evaluate whether the particular factual
circumstances of a case give rise to removal jurisdiction, we “strictly construe[] the
right to remove” and apply a general “presumption against the exercise of federal
jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved
in favor of remand.” Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040,
1050 (11th Cir. 2001).
Based on the undisputed record, Carnival cannot demonstrate that the
plaintiffs in the two actions proposed a joint trial of their claims, in whole or in
part, in state court. What actually happened in the case is this: initially, six
plaintiffs filed a complaint, Scimone I, and later amended that complaint to add
thirty-three more plaintiffs. Yet another sixty-five Costa Concordia passengers,
who were potential additional plaintiffs, later indicated that they wanted to join
Scimone I. At that point, rather than simply naming all 104 passengers to the
complaint in Scimone I, the Scimone I plaintiffs voluntarily dismissed their
lawsuit. The thirty-nine Scimone I plaintiffs then split into two groups, divided the
sixty-five other Costa Concordia passengers into those two groups, and filed two
separate complaints in Florida state court. One complaint (Scimone II) named
forty-eight plaintiffs, and the other complaint (Abeid-Saba) named the remaining
fifty-six. Carnival then removed these two separate actions to federal court.
12
Case: 13-12291 Date Filed: 07/01/2013 Page: 13 of 22
At no point in this procedural history did the 104 plaintiffs in these two
actions ever file a single complaint that named 100 or more plaintiffs. Scimone I
had thirty-nine plaintiffs, Scimone II had forty-eight, and Abeid-Saba had fifty-six.
On the face of the complaint in Scimone I, therefore, the initial group of plaintiffs
proposed to try only thirty-nine persons’ claims jointly. The mere fact that another
sixty-five Costa Concordia passengers wanted to join the action does not mean that
the thirty-nine plaintiffs in Scimone I proposed or acquiesced to a joint trial with
100 or more persons. In fact, they obviously wanted, and took steps to ensure that
they would get, separate trials with less than 100 persons involved. Thus, when the
Scimone I plaintiffs realized that other Costa Corcordia passengers wanted to join,
they, as masters of the Scimone I complaint, elected to voluntarily dismiss the
complaint rather than aggregating 100 or more persons’ claims. Carnival has not
contested that the plaintiffs had the right to do so under Florida’s rules of civil
procedure. The plaintiffs then filed two separate lawsuits, Scimone II and Abeid-
Saba, neither of which proposed to try 100 or more persons’ claims jointly. Thus,
nothing in how the plaintiffs structured their complaints amounted to a “proposal,”
as required by 28 U.S.C. § 1332(d)(11)(B)(i). Nor did plaintiffs’ subsequent
litigation conduct amount to a proposal to try 100 or more persons’ claims jointly.
Neither group of plaintiffs ever moved the state court to consolidate those two
separate lawsuits or hold a joint trial on any component (e.g., liability) of the two
13
Case: 13-12291 Date Filed: 07/01/2013 Page: 14 of 22
groups’ claims. In short, nothing the plaintiffs did in state court, from the time that
Scimone I was filed to the time Carnival removed the two actions to federal court,
constituted a proposal for a joint trial on 100 or more persons’ claims.
Carnival argues, nevertheless, that the plaintiffs in these two cases did in fact
implicitly “propose” a joint trial. Indeed, this is the crux of Carnival’s case. In
essence, Carnival says that the plaintiffs proposed a joint trial simply by initially
filing a single state-court action (containing only thirty-nine plaintiffs) and then
voluntarily dismissing that case and re-filing two separate but largely identical
lawsuits (each of which still had fewer than 100 plaintiffs). As Carnival puts it,
“[a]t the very least, this conduct suggests a joint trial,” which satisfies
§ 1332(d)(11)(B)(i); moreover, the division “essentially demands a joint trial,”
because some individual plaintiffs who traveled on the same ticket, or who
belonged to the initial group of thirty-nine plaintiffs in Scimone I, are now split
between Scimone II and Abeid-Saba. We are unpersuaded.
To begin with, the statutory language requires a “proposal,” not a mere
suggestion, and common sense dictates that, when plaintiffs choose to voluntarily
dismiss a single complaint (which had fewer than 100 plaintiffs), then divide
themselves into two separate groups, and file two separate complaints (each of
which has fewer than 100 plaintiffs), they are actually proposing two separate trials
rather than a joint trial. The fact that a plaintiff in Scimone II traveled on the same
14
Case: 13-12291 Date Filed: 07/01/2013 Page: 15 of 22
ticket as a plaintiff in Abeid-Saba bears on whether the two cases share common
questions of law or fact, not on whether those plaintiffs proposed a joint trial of
100 or more persons’ claims. Nor did the plaintiffs do anything at all that amounts
to a demand for a joint trial of 100 or more persons’ claims. Every step the
plaintiffs took was plainly directed toward achieving the exact opposite. Indeed, if
we accepted Carnival’s position, we would reduce the meaning of the word
“proposed” to nothing more than “contemplated the possibility of” or even
“consciously attempted to avoid.” Yet we would hardly say that a mouse
“proposes” to be eaten by a cat when it makes the mistake of being seen by the cat,
recognizes the danger, and then quickly scurries away. This interpretation of the
word “proposed” would affect a substantial change to the statute as Congress wrote
it. The more natural reading of the provision is that the plaintiffs must actually
want, or at least intend to bring about, what they are proposing.
Every other court of appeals confronted with this question has come to the
same conclusion: that plaintiffs have the ability to 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. In Anderson v.
Bayer Corp., more than 100 plaintiffs, in what the Seventh Circuit described as
five “mostly identical complaints,” sued Bayer in state court, all claiming that
Bayer’s medication Trasylol injured them. 610 F.3d 390, 392 (7th Cir. 2010). None
15
Case: 13-12291 Date Filed: 07/01/2013 Page: 16 of 22
of the cases standing alone involved more than 100 plaintiffs, but Bayer argued
that the “plaintiffs c[ould] not avoid federal diversity jurisdiction [under
§ 1332(d)(11)(B)(i)] by carving their filings into five separate pleadings.” Id. Much
like we have done, the Seventh Circuit pointed out that 28 U.S.C.
§ 1332(d)(11)(B)(ii)(II) specifically excludes claims joined upon the defendant’s
motion. This exclusion informed the Seventh Circuit’s interpretation of
§ 1332(d)(11)(B)(i) and implied that plaintiffs were able to avoid federal
jurisdiction, since “Congress appears to have contemplated that some cases which
could have been brought as a mass action would, because of the way in which the
plaintiffs chose to structure their claims, remain outside of CAFA’s grant of
jurisdiction.” Id. at 393. And this conclusion was consistent with the general
principle that plaintiffs, as masters of their complaints, ordinarily may choose to
include or omit parties in order to obtain their desired forum. See id. The Seventh
Circuit therefore interpreted the “[t]he mass action provision [to] give[] plaintiffs
the choice to file separate actions that do not qualify for CAFA jurisdiction.” Id.
“Of course, subsequent action by the plaintiffs in state court might render these
claims removable,” but nothing in the plaintiffs’ conduct in the state court had
indicated the desire to try 100 or more persons’ claims jointly. Id. at 394.
Therefore, the Seventh Circuit concluded that there was “no federal jurisdiction
under CAFA.” Id.
16
Case: 13-12291 Date Filed: 07/01/2013 Page: 17 of 22
Similarly, in Tanoh v. Dow Chemical Co., an earlier Ninth Circuit case cited
by Anderson in support of its disposition, the defendants removed seven actions
(each with fewer than 100 plaintiffs) to federal court pursuant to CAFA. 561 F.3d
945, 950-51 (9th Cir. 2009). All 664 plaintiffs in the seven actions alleged that
Dow Chemical exposed them to toxic chemicals. Id. Like here, the defendants
argued that the plaintiffs “sought to avoid federal jurisdiction by filing several
separate state court actions in groups fewer than one hundred.” Id. at 951 (internal
quotation mark omitted). The Ninth Circuit concluded that, “[b]y its plain terms,
[CAFA] does not apply to plaintiffs’ claims in this case, as none of the seven state
court actions involves the claims of one hundred or more plaintiffs, and neither the
parties nor the trial court has proposed consolidating the actions for trial.” Id. at
953. The Third Circuit has agreed with the Seventh and the Ninth Circuits, albeit in
an unpublished opinion. Abrahamsen v. ConocoPhillips, Co., 503 F. App’x 157,
160 (3d Cir. 2012) (when 123 plaintiffs filed four separate complaints, none of
which had 100 or more plaintiffs, “[t]he plain text of CAFA clearly preclude[d]
jurisdiction” because “Plaintiffs did not propose to try their claims jointly”). 1
Carnival levels two abstract, policy-based objections to our conclusion and
the decisions of those other circuits: first, that we have violated the basic principle
1
As we have done, the Seventh and Ninth Circuits left open the possibility that a state court’s sua
sponte decision to conduct a joint trial on 100 or more persons’ claims would suffice. See
Anderson, 610 F.3d at 394 n.2; Tanoh, 561 F.3d at 956.
17
Case: 13-12291 Date Filed: 07/01/2013 Page: 18 of 22
that “courts will not permit plaintiff to use artful pleading to close off defendant’s
right to a federal forum,” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 397
n.2 (1981) (internal quotation mark omitted); and, second, that we have ignored the
purpose of the statute, which was to expand federal jurisdiction over class and
mass actions and to facilitate their removal. The problem with the first objection is
that Carnival presupposes that which it first has to prove: that it is entitled to a
federal forum for two complaints that, on their face, each involve less than 100
claims. Carnival is only entitled to a federal forum if the plaintiffs filed a single
complaint in state court that involved 100 or more persons’ claims or otherwise
proposed a joint trial for multiple complaints that in the aggregate contain 100 or
more plaintiffs. The problem with the second objection is that there is no indication
that Congress’s purpose in enacting CAFA was to strip plaintiffs of their ordinary
role as masters of their complaint and allow defendants to treat separately filed
actions as one action regardless of plaintiffs’ choice. Contrary to Carnival’s
position, the jurisdictional exclusion of claims joined only on a defendant’s motion
speaks to precisely the opposite intent: to continue to repose in plaintiffs the ability
to choose a state forum as long as they do not join 100 or more persons’ claims. In
fact, the primary purpose behind CAFA’s amendments to 28 U.S.C. § 1332 was to
eliminate the complete-diversity and individual-amount-in-controversy
requirements that applied to all other diversity suits in favor of the more forgiving
18
Case: 13-12291 Date Filed: 07/01/2013 Page: 19 of 22
requirements of minimal diversity and a $5 million total amount in controversy.
See S. Rep. No. 109-14, at 10 (2005) (“The current rules [i.e., complete diversity
and the $75,000 individual-amount-in-controversy requirement] governing federal
jurisdiction have the unintended consequence of keeping most class actions out of
federal court . . . .”). What the plaintiffs have done in this case does not defeat
Congress’s intent to remove those impediments to federal adjudication of class
actions.
Nor are we persuaded by the authorities Carnival cites. The two cases upon
which it most heavily relies -- Standard Fire Insurance Co. v. Knowles, 133 S. Ct.
1345 (2013), and Freeman v. Blue Ridge Paper Products, Inc., 551 F.3d 405 (6th
Cir. 2008) -- dealt with different issues and not with the mass-action provision at
issue in this case. In Knowles, the question was whether the lead plaintiff in a
class-action lawsuit could avoid federal removal jurisdiction by stipulating prior to
class certification that he, and the class he sought to represent, would not seek
more than $5 million in damages. See 133 S. Ct. at 1347. The relevant statutory
provision provided that “to determine whether the amount in controversy exceeds
the sum or value of $5,000,000,” the “claims of the individual class members shall
be aggregated.” 28 U.S.C. § 1332(d)(6). The district court in Knowles aggregated
the class members’ claims and found that the amount in controversy exceeded $5
million but nonetheless remanded on the basis of Knowles’s stipulation. Knowles,
19
Case: 13-12291 Date Filed: 07/01/2013 Page: 20 of 22
133 S. Ct. at 1348. The Supreme Court reversed because “[t]he stipulation
Knowles proffered to the District Court . . . does not speak for those he purports to
represent . . . . because a plaintiff who files a proposed class action cannot legally
bind members of the proposed class before the class is certified.” Id. at 1348-49. In
light of the nonbinding nature of Knowles’s stipulation, the Supreme Court
concluded that § 1332(d)(6) obligated a district court to determine whether it had
jurisdiction based on its own calculation of the aggregate amount in controversy.
Id. at 1350.
The holding of Knowles, which concerns a different section of the statute,
plainly does not address the issue presented in this case. Carnival nevertheless
places great significance on the part of the opinion that states:
To hold [that plaintiff’s stipulation determined the bounds of federal
jurisdiction] would, for CAFA jurisdictional purposes, treat a
nonbinding stipulation as if it were binding, exalt form over
substance, and run directly counter to CAFA’s primary objective:
ensuring Federal court consideration of interstate cases of national
importance. It would also have the effect of allowing the subdivision
of a $100 million action into 21 just-below-$5-million state-court
actions simply by including nonbinding stipulations; such an outcome
would squarely conflict with the statute’s objective.
Id. (internal quotation marks and citation omitted). Carnival urges us to read this
passage as stating a broad rule that CAFA does not allow plaintiffs to structure
their lawsuits to avoid CAFA jurisdiction. As we see it, this stretches the Supreme
Court’s analysis far past its breaking point. The passage pertains to the amount-in-
20
Case: 13-12291 Date Filed: 07/01/2013 Page: 21 of 22
controversy requirement and to the unique situation where a lead plaintiff merely
creates the appearance of a smaller amount in controversy with a nonbinding
stipulation to that effect. It cannot be read to suggest that all sections of CAFA
strip plaintiffs of their traditional role as masters of their complaint, particularly
where, as in this case, the plaintiffs’ decision to proceed in two separate lawsuits
does not merely create the appearance of two trials but would actually result in two
trials in state court.
Freeman, Carnival’s Sixth Circuit authority, also dealt with CAFA’s
amount-in-controversy requirement. In that case, the same class brought the same
claim in five different actions, divided only by artificial time limits that ensured
that each action putatively fell under the $5 million amount-in-controversy
threshold of 28 U.S.C. § 1332(d)(2). Freeman, 551 F.3d at 406. Freeman held that
all five actions nonetheless collectively fell within CAFA’s jurisdiction, and that
plaintiffs could not artificially structure their class-action lawsuits to avoid the $5
million amount-in-controversy requirement. Id. at 407. Both Knowles and
Freeman, which concerned class actions rather than mass actions, never had
occasion to interpret the “are proposed to be tried jointly” language of
§ 1332(d)(11)(B)(i) or its interaction with the jurisdictional exclusion of
§ 1332(d)(11)(B)(ii)(II) -- which together make clear that plaintiffs retain the
ability to avoid federal jurisdiction simply by not proposing joint trial of 100 or
21
Case: 13-12291 Date Filed: 07/01/2013 Page: 22 of 22
more persons’ claims. To put it another way, this case deals with a precondition to
even treating the plaintiffs’ two separate lawsuits as a class action in the first place,
whereas Freeman and Knowles dealt with whether a class action or group of class
actions satisfied § 1332(d)’s amount-in-controversy requirement for federal
jurisdiction -- two very different questions.
The long and short of this case is that, in order for the district court to have
subject-matter jurisdiction, 28 U.S.C. § 1332(d)(11)(B)(i) requires a proposal for
joint trial of 100 or more persons’ claims. But the forty-eight plaintiffs in Scimone
II and the fifty-six plaintiffs in Abeid-Saba never filed a single complaint naming
100 or more plaintiffs and never moved for consolidation or a joint trial on part or
all of their two separate actions. In other words, they never proposed joint trial of
100 or more persons’ claims. In the face of the letter of the statute, the district
court’s remand order was proper.
AFFIRMED.
22