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Media Alerts - Briggs v. Merck Sharp & Dohme, Corp. - Ninth Circuit
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October 22, 2015
  Briggs v. Merck Sharp & Dohme, Corp. - Ninth Circuit
Headline: Ninth Circuit panel reversed district court judge's denial of plaintiffs' remand motion, holding that the actions of plaintiffs in filing separate suits in San Diego Superior Court when a similar, but not identical, set of cases was pending in a coordinated state proceeding in Los Angeles Superior Court did not trigger removal as a mass action under CAFA.

Areas of Law: Civil Procedure, Class Action Fairness Act, Removal

Issues Presented:

Whether the five separately filed cases filed in superior court in one county, when a similar, but not identical, set of cases was pending in a coordinated state proceeding in superior court in a neighboring county, constitutes a "mass action" under CAFA which defendant may remove to federal court. Whether the plaintiffs in these five suits "proposed" to try their claims jointly within the meaning of CAFA's removal provision 28 U.S.C. ยง 1332(d)(11)(B)(i).

Brief Summary:

Five different groups of plaintiffs filed five separate lawsuits against the same defendant claiming defendant developed a drug that caused them, or deceased individuals that they represented, to contract pancreatic cancer. Defendant sought to remove the five different tort cases to federal court based on the Class Action Fairness Act (CAFA). Pursuant to CAFA, federal courts have jurisdiction of "mass actions" which are defined as "monetary relief claims of 100 or more persons which are 'proposed to be tried jointly' on the ground that plaintiff's claims involve common questions of law or fact." CAFA requires the proposal for a joint trial be made by the plaintiff and not the result of a case consolidation or joinder as a result of a defendant motion.

Defendant had originally sought removal based on complete diversity. In response to the original removal proceedings, plaintiffs represented to the federal district court that the five cases should be remanded back to state court and that they may be joined with an already existing coordinated proceeding in state court lawsuit in a neighboring county where similar claims were being litigated. Defendants then removed the case based on CAFA, alleging the plaintiffs had 'proposed a joint trial' with the preexisting state court case. The trial court agreed but the panel reversed remanding the case back to state court because plaintiff's conduct did not amount to "proposing a joint trial," as required by CAFA. In doing so, the panel rejected defendants' tactic to remove case under CAFA as a mass action finding that the plaintiffs, as masters of their complaints, must be the ones to propose a joint trial, not the defendants.

Extended Summary:

Plaintiffs are individuals who alleged that they, or deceased individuals that they represented, contracted pancreatic cancer after using incretion-based therapies for diabetes that were developed by defendant Merck Sharp & Dohme Corp (Merck). Five distinct groups of plaintiffs filed five different tort suits in California state court against Merck all with similar claims. Each of the five tort actions had fewer than 100 plaintiffs. At the time plaintiffs filed these five cases, a coordinated proceeding covering similar claims was pending in a California state court in a different county. Merck removed four of the five cases based on conventional federal diversity jurisdiction, but the district court granted plaintiffs' motions to remand. Merck then removed all five cases based on CAFA, contending that plaintiffs' statements to the court during the earlier remand proceedings - that they may join the coordinated state proceeding - converted four of the five cases into a mass action, and that the filing of the fifth case in the same state court as the other four had the same consequence. Plaintiffs moved to remand the five cases. The district court denied the motions for remand and subsequent motions for reconsideration.

Congress passed the Class Action Fairness Act (CAFA) in 2005 which extends removal jurisdiction to mass civil actions in which the monetary relief claims of 100 or more persons are proposed to be tried jointly. CAFA explicitly excludes removal jurisdiction from mass actions where claims by different plaintiffs are joined upon motion of a defendant or where claims have been consolidated or coordinated solely for pretrial proceedings. Relevant here is whether the plaintiffs 'proposed a joint trial' when stating to the federal court that they may join the earlier coordinated state proceeding if remanded back to state court.

Plaintiffs challenged the removal claiming CAFA does not apply because none of the five plaintiffs ever "proposed" to "try jointly" the claims of one hundred or more persons. Merck contended CAFA removal was proper because the plaintiffs represented to the federal court that plaintiffs may join the coordinated state proceeding in the Los Angeles Superior Court. In reversing the lower courts decision, the Ninth Circuit court ultimately held that plaintiffs did not propose a joint trial and remanded each of the five cases back to state court.

The Ninth Circuit panel commenced its analysis by interpreting the meaning of a "proposal for joint trial" as stated in the language of CAFA. According to the panel, a "proposal" can either be expressed by the parties or implied by their conduct, but it must be the plaintiff who makes the proposal. The lower court found that plaintiffs did propose a joint trial for two reasons. First, in his opinion, the trial judge believed that four of the five plaintiffs represented to him that they intended their cases to be joined with the coordinated proceeding. And second, all five cases were filed in San Diego Superior Court which is a neighboring court to the Los Angeles Superior Court. The Ninth Circuit panel held these two acts by the five plaintiffs did not constitute a proposal for a joint trial. The plaintiffs merely represented to the federal district court what might happen if they were remanded back to state court; that their cases may be joined to the coordinated state proceeding. This representation of what may have happened was not sufficient to constitute a proposal by plaintiffs to join the coordinated proceeding in the Los Angeles Superior Court. The Ninth Circuit panel also ruled that filing their five cases in San Diego County while the defendant-initiated coordinated proceeding was pending in neighboring Los Angles County constituted an implicit proposal to join their cases with the coordinated proceeding. The mere likelihood alone that the five cases would be joined in the coordinated proceeding "cannot to trigger CAFA's mass action jurisdiction, for some entity - either one of the parties or the state court - would have to take some action to effectuate the joinder." The panel concluded: "[T]here is no indication that Congress' purpose in enacting AFA 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."

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/08/14/13-56415.pdf

Panel: William A. Fletcher, Richard A. Paez, and Marsha S. Berzon, Circuit Judges.

Date Argued: July 10, 2015

Date of Issued Opinion: August 6, 2015

Docket Number: No. 15-55873

Decided: Reversed and remanded back to state court.

Case Alert Author: Brian D. Shapiro

Counsel:
Louis M. Bograd (argued), Center for Constitutional Litigation, P.C., Washington, D.C.; John M. Restaino, Jr., Restaino Siler, LLD, Denver, Colorado; Ryan L. Thompson (argued), Watts Guerra LLP, San Antonio, Texas; John R. Lytle, Napoli Bern Ripka Shkolnik, LLP, Ladera Ranch, California; Hunter J. Shkolnik, Napoli Bern Ripka Shkolnik, LLP, New York, New York, for Plaintiffs-Appellants.
Maurita Elaine Horn, Douglas R. Marvin, and Kristin Ann Shapiro (argued), Williams & Connolly LLP, Washington, D.C., for Defendants-Appellees.
Author of Opinion: Judge W. Fletcher

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/22/2015 05:48 PM     9th Circuit  

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