In the
United States Court of Appeals
For the Seventh Circuit
No. 10-8003
R ONALD A NDERSON, et al.,
Plaintiffs-Respondents,
v.
B AYER C ORPORATION, B AYER H EALTHCARE LLC,
and B AYER H EALTHCARE P HARMACEUTICALS, INC.,
Defendants-Petitioners.
Petition for Leave to
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-cv-00988—G. Patrick Murphy, Judge.
No. 10-8004
D ON JUAN B ROWN, et al.,
Plaintiffs-Respondents,
v.
B AYER C ORPORATION, B AYER H EALTHCARE LLC,
and B AYER H EALTHCARE P HARMACEUTICALS, INC.,
Defendants-Petitioners.
Petition for Leave to
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-cv-00989—G. Patrick Murphy, Judge.
2 Nos. 10-8003, 10-8004, 10-8005 & 10-8006
No. 10-8005
F REDERICK B ANCROFT, et al.,
Plaintiffs-Respondents,
v.
B AYER C ORPORATION, B AYER H EALTHCARE LLC,
and B AYER H EALTHCARE P HARMACEUTICALS, INC.,
Defendants-Petitioners.
Petition for Leave to
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-cv-00990—G. Patrick Murphy, Judge.
No. 10-8006
F RANCIS G. L ECKER, et al.,
Plaintiffs-Respondents,
v.
B AYER C ORPORATION, B AYER H EALTHCARE LLC,
and B AYER H EALTHCARE P HARMACEUTICALS, INC.,
Defendants-Petitioners.
Petition for Leave to
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-cv-00991—G. Patrick Murphy, Judge.
S UBMITTED F EBRUARY 22, 2010—D ECIDED JUNE 22, 2010
Nos. 10-8003, 10-8004, 10-8005 & 10-8006 3
Before F LAUM, M ANION, and E VANS, Circuit Judges.
F LAUM, Circuit Judge. Defendants (collectively referred
to as “Bayer”) have petitioned for leave to appeal the
remand orders issued by the district court in the four
above-captioned cases. In five separate, mostly identical
complaints in state court, plaintiffs sued Bayer for
personal injuries they allege were caused by Trasylol, a
prescription medication manufactured by Bayer. Defen-
dants removed, invoking the “mass action” provision of
the Class Action Fairness Act (“CAFA”), which allows
the removal of cases joining the claims of at least
100 plaintiffs that otherwise meet CAFA’s jurisdictional
requirements. The district court remanded four of the
five cases because they contained fewer than 100 plaintiffs
(in the fifth case plaintiffs meant to include 99 plaintiffs,
but actually named two-coexecutors in the same paragraph
for a total of 100 plaintiffs). Bayer asks us to grant its
petitions for review in the four cases remanded to state
court and hold that (1) plaintiffs cannot avoid federal
diversity jurisdiction by carving their filings into five
separate pleadings, and (2) there is diversity jurisdiction
over most plaintiff’s claims because the claims of the
small number of non-diverse plaintiffs were fraudu-
lently misjoined and should be severed. Because we
agree with the district court on the first question, we con-
clude that we are without jurisdiction to reach the second.
In August and September of 2009, plaintiffs’ counsel
filed in St. Clair County, Illinois, claims on behalf of
57 unrelated plaintiffs, dividing the claims between
four virtually identical complaints, using verbatim lan-
4 Nos. 10-8003, 10-8004, 10-8005 & 10-8006
guage, alleging that the plaintiffs (or their decedents)
suffered injuries as a result of being administered
Trasylol during heart surgery. Bayer removed, invoking
the district court’s diversity jurisdiction over the diverse
plaintiffs’ claims by arguing that the few non-diverse
plaintiffs had been fraudulently misjoined. The district
court remanded sua sponte.
After remand to St. Clair County, plaintiffs’ counsel
amended the complaints to add 111 new plaintiffs, spread
across the four existing suits. This resulted in a total of
100 plaintiffs in Gilmore,1 5 in Brown, 45 in Bancroft, and
18 in Lecker. Plaintiffs’ counsel also filed a fifth complaint,
Anderson, naming three plaintiffs, one of whom was non-
diverse. Defendants once again removed. The district
court remanded Bancroft, Brown, Lecker, and Anderson,
rejecting defendants’ argument that they should be
treated as a single mass action and defendants’ alternative
argument that the non-diverse plaintiffs should have
been severed from the action as fraudulently misjoined.
Defendants then filed this petition for permission to
appeal under 28 U.S.C. § 1453(c), a provision of CAFA that
creates an exception for class actions to the general
rule that remand orders are not reviewable. See id.; 28
U.S.C. § 1447(d).
Bayer first argues that plaintiffs’ cases meet CAFA’s
definition of a “mass action” and thus the district court
1
Because it joined the claims of 100 or more plaintiffs, Gilmore
v. Bayer Corp., No. 09-986-GPM (S.D. Ill.), was not remanded
by the district court and thus is not part of this appeal.
Nos. 10-8003, 10-8004, 10-8005 & 10-8006 5
erred in remanding the cases. 28 U.S.C. § 1332(d)(11)(B)(i)
defines a mass action as “any civil action . . . in which the
monetary relief claims of 100 or more persons are
proposed to be tried jointly on the ground that the plain-
tiffs’ claims involve common questions of law or fact.”
Under CAFA, such mass actions “shall be deemed to be
a class action” removable to federal court, so long as
CAFA’s other jurisdictional requirements are met. Id.
§ 1332(d)(11)(A). There is no dispute that the other re-
quirements—amount in controversy and minimal
diversity—are met in each of the four cases that Bayer
appealed.
Of course, none of the instant four cases actually involve
the claims of more than 100 plaintiffs. Bayer, however,
urges us not to place “too much weight on form” in the
CAFA context. See Marshall v. H&R Block Tax Servs., Inc.,
564 F.3d 826, 828 (7th Cir. 2009). They argue that plaintiffs’
five separate pleadings are a transparent attempt to
circumvent CAFA, and, as such, should be treated as a
single mass action. In support of this argument, they
cite Freeman v. Blue Ridge Paper Products, Inc., 551 F.3d 405
(6th Cir. 2008). In Freeman, the Sixth Circuit considered
an appeal from the remand of five related cases
that had separated the plaintiffs’ claims for nuisance
into six-month periods in order to avoid meeting CAFA’s
$5 million jurisdictional amount. Id. at 407. The Sixth
Circuit found that “there was no colorable reason for
breaking up the lawsuit in this fashion, other than to
avoid federal jurisdiction,” and thus held that the
damages sought in each suit “must be aggregated” for
the purpose of determining whether the amount-in-
controversy requirement had been met. Id.
6 Nos. 10-8003, 10-8004, 10-8005 & 10-8006
Freeman, however, did not address the mass action
provision of CAFA. This distinction is important because
CAFA states that “the term ‘mass action’ shall not
include any civil action in which the claims are
joined upon motion of a defendant.” 28 U.S.C.
§ 1332(d)(11)(B)(ii)(II). By excluding cases in which
the claims were consolidated on a defendant’s motion,
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 struc-
ture their claims, remain outside of CAFA’s grant of
jurisdiction. This is not necessarily anomalous; after all,
the general rule in a diversity case is that “plaintiffs as
masters of the complaint may include (or omit) claims
or parties in order to determine the forum.” See Garbie v.
DaimlerChrysler Corp., 211 F.3d 407, 410 (7th Cir. 2000)
(citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)).
The only appellate court to have addressed an argu-
ment similar to Bayer’s has rejected its approach. In Tanoh
v. Dow Chemical Co., 561 F.3d 945 (9th Cir. 2009), the Ninth
Circuit considered whether seven similar cases, each
involving fewer than 100 plaintiffs, could be treated as a
single mass action for CAFA purposes. The Tanoh court
began by noting that under the plain language of CAFA,
none of the state court cases were a mass action because
they contained fewer than 100 plaintiffs each. Id. at 953.
The court went on to reject the defendant’s structuring
argument, relying on § 1332(d)(11)(B)(ii)(II) to conclude
that “Congress appears to have foreseen the situation
presented in this case and specifically decided the issue
in plaintiffs’ favor.” Id. at 953. Like Bayer here, Dow never
Nos. 10-8003, 10-8004, 10-8005 & 10-8006 7
formally moved to consolidate the state court cases. The
Ninth Circuit concluded that “[t]he absence of a
formal motion cannot blink away the fact that Dow, the
defendant, is asking us to consolidate separate actions
for purposes of applying the ‘mass action’ provision.” Id.
at 954.
We agree with our colleagues on the Ninth Circuit. The
mass action provision gives plaintiffs the choice to file
separate actions that do not qualify for CAFA jurisdic-
tion. The instant cases contain fewer than 100 plaintiffs
and thus are not removable under the plain language of
the statute. Bayer’s argument that these separate law-
suits be treated as one action is tantamount to a request
to consolidate them—a request that Congress has
explicitly stated cannot become a basis for removal as
a mass action.
Of course, subsequent action by the plaintiffs in state
court might render these claims removable. See Bullard
v. Burlington Northern Santa Fe Railway Co., 535 F.3d 759,
762 (7th Cir. 2008) (holding that a case in state court may
become a removable mass action “long after filing” if the
claims of more than 100 plaintiffs are subsequently pro-
posed to be tried jointly). In Bullard, we specifically de-
scribed as removable a hypothetical set of “15 suits” with
“10 plaintiffs each” that are proposed to be tried to-
gether. Id. We also noted that the § 1332(d)(11) ex-
tended to a situation where only a few representative
plaintiffs would actually go to trial, with claim or issue
preclusion to be used to dispose of the remaining claims
without trial. Id. Such a request from the plaintiffs seems
8 Nos. 10-8003, 10-8004, 10-8005 & 10-8006
possible (perhaps even likely) at some future point in
these cases, given the similarity of their claims. But it is
not yet a certainty, and Congress has forbidden us from
finding jurisdiction based on Bayer’s suggestion that the
claims be tried together. So long as plaintiffs (or perhaps
the state court) do not propose to try these cases
jointly in state court, they do not constitute a mass
action removable to federal court.2
Finding no federal jurisdiction under CAFA, we turn
to defendants’ alternative argument for diversity juris-
diction, fraudulent misjoinder. Before reaching the
merits of this argument, however, we must consider
plaintiffs’ argument that we are without appellate juris-
diction to hear it.
Typically, federal courts of appeal are barred from
reviewing district court orders remanding removed
cases to state court. See 28 U.S.C. § 1447(d). However, an
exception exists when a party appeals “from an order
granting or denying a motion to remand a class action
to the State court from which it was removed.” 28 U.S.C.
§ 1453(c). In Brill v. Countrywide Home Loans, Inc., 427
F.3d 446 (7th Cir. 2005), we held that “[b]ecause
§ 1453(c)(1) permits appellate review of remand orders
‘notwithstanding section 1447(d),’ we are free to consider
any potential error in the district court’s decision, not
2
Like the Ninth Circuit in Tanoh, we express no opinion as to
whether a state court’s sua sponte joinder of claims might
allow a defendant to remove separately filed state court claims
to federal court as a single “mass action.” 561 F.3d at 956.
Nos. 10-8003, 10-8004, 10-8005 & 10-8006 9
just a mistake in application of [CAFA].” Id. at 451-52.
Plaintiffs do not address Brill, which at first glance
might appear to control here.
We have, however, an independent duty to examine
the basis for our jurisdiction, and this case differs from
Brill in one important respect. In Brill, there was never
any dispute about whether the state court case was a
class action. Instead, we were confronted with both
CAFA and non-CAFA theories of federal subject-matter
jurisdiction over a particular class action, and con-
cluded that we had the jurisdiction to address both argu-
ments. 427 F.3d at 451-52. Here, however, we have con-
cluded that the remanded cases do not meet CAFA’s
definition of a class action, because they are not mass
actions as defined in the statute. From the plain
language of § 1453(c), which extends appellate jurisdic-
tion only to remand orders for “class actions” as defined
in CAFA, it follows that we lack jurisdiction to proceed
further. Because the district court properly concluded
that the above-captioned cases were not mass actions, we
have no jurisdiction to hear an appeal from the remand
order.
Defendants’ petition for leave to appeal under 28 U.S.C.
§ 1453(c) is D ENIED.
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