Natale v. Pfizer, Inc.

United States Court of Appeals
For the First Circuit

No. 05-2203

JERRY NATALE, on behalf of himself and all others similarly
situated; SHERRY KWAAK, on behalf of herself and all others
similarly situated,

Plaintiffs, Appellees,

v.

PFIZER, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Schwarzer,* Senior District Judge.

Thomas A. Smart with whom Richard A. De Sovo, Robert Grass and
Alan E. Rothman, Kaye Scholer LLP, Andrew N. Nathanson, William M.
Cowan, Dora Kripapuri and Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C. were on brief for appellant.
David Pastor and Kenneth D. Quat with whom Douglas J. Hoffman
and Gilman and Pastor, LLP were on brief for appellees.

September 16, 2005

*
Of the Northern District of California, sitting by
designation.
 Per Curiam. Pfizer, sued in two class actions in

Massachusetts state court, removed these actions to the United

States District Court for the District of Massachusetts pursuant to

the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat.

4 (to be codified at 28 U.S.C. § 1332(d)(2)) ("CAFA"). The

District Court remanded the actions but certified its ruling for an

interlocutory appeal, and this court accepted Pfizer's appeal from

the remand order pursuant to CAFA § 5, 119 Stat. 12 (to be codified

at 28 U.S.C. § 1453(c)(1)).

Plaintiffs filed their actions in state court, Natale on

February 11, and Kwaak on January 13, 2005. Section 9 of CAFA

provides that "this Act shall apply to any civil action commenced

on or after the date of enactment of this Act." CAFA's date of

enactment was February 18, 2005. Pfizer filed a notice of removal

in the District Court on March 25, 2005, within 30 days of the

filing of the Natale action. 28 U.S.C. § 1446(b).

Pfizer contends that the actions were commenced on the

date they were removed. The two circuits to have addressed the

issue have rejected this contention, having held that "commenced"

means "filed" rather than "removed." Knudsen v. Liberty Mut. Ins.

Co., 411 F.3d 805, 806 (7th Cir. 2005), following Pritchett v.

Office Depot, Inc., No. 05-0501, 2005 WL 1994020 (10th Cir. Aug. 18,

2005), amending and superceding 404 F.3d 1232 (10th Cir. 2005).

Pfizer argues that these actions are different in that removal

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occurred within the statutory thirty-day period from service of the

complaint, rather than after the action had been pending for some

years. But that argument runs squarely into the statutory provision

that the Act is to apply only to actions commenced on or after the

date of enactment. We agree with the Seventh Circuit's decision in

Pfizer, Inc. v. Lott, 417 F.3d 725 (7th Cir. 2005), rejecting this

argument. To accept it would have us rewrite the statute by carving

out a class of late-filed actions.

Thus, Pfizer is left with its argument that "commenced"

means "removed." As Judge Posner points out in Lott,

While it is true that the proceeding in
federal court was "commenced" by the filing of
the removal petition, that filing was not the
beginning of the suit. For what was removed
was the suit that had been brought in the
Illinois state court, and under Illinois law
the filing of the complaint had "commenced"
the suit.

Id. at 726. The same is true under Massachusetts law. Mass. R.

Civ. P. 3 (stating that a civil action is commenced by filing of a

complaint); Big D Carpets, Inc. v. The Welch Group, Inc., 37 Mass.

App. Ct. 312, 315 (Mass. App. 1994).

Finally, we are unpersuaded by Pfizer's reliance on a

line of district court decisions following Lorraine Motors, Inc. v.

Aetna Cas. & Sur. Co., 166 F. Supp. 319 (E.D.N.Y. 1958). Those

cases involved legislation increasing the amount in controversy

requirement and rest on the rationale that an action should not be

removable from state court when that action could not have been

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originally instituted in federal court on the day it was removed

because the jurisdictional amount had been raised. See Lorraine

Motors, 166 F. Supp. at 323. They have no relevance here.

The remand order is affirmed.

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