The United States Court of Appeals for the Seventh Circuit recently held that statements made in a plaintiffs' response to the defendant's motion to dismiss did not constitute a "proposal" for a joint trial for purposes of removal under the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332 et seq., and therefore the defendant's removal of the suits to federal court was premature. A copy of the opinion is attached.
Defendant-manufacturer ("Boeing") was sued in Illinois state court by 117 plaintiffs ("Plaintiffs") in 29 separate actions all arising from the crash of an airliner built by Boeing. Boeing filed a motion in the state court to dismiss the case under the doctrine of forum non conveniens, arguing among other things that it would be inconvenient for its employees in Washington, where the airliner was designed and built, to have to travel repeatedly to Illinois to testify in the various trials.
In opposing the motion, the Plaintiffs stated: "Practically speaking, Boeing's suggestion . . . that its employees will have to come to Chicago, Illinois for 'several' trials is not true. As this Court is aware, in aviation disaster cases, several exemplar cases are routinely tried on one occasion at which time the issue of liability is determined for the remainder of the cases. Thus, to the extent there is a trial, Boeing's witnesses will in all likelihood not have to travel to Chicago, Illinois several times. [Boeing's affiant] agreed that if that were the case [i.e., one trial], it would not be as inconvenient for Boeing witnesses to come to Chicago."
On the basis of this response, Boeing removed the state court cases to federal district court, arguing that the Plaintiffs' statement was a proposal for a joint trial, and thus made the 29 separate suits arising from the plane crash a mass action removable under CAFA. The district courts disagreed and granted Plaintiffs' motions to remand. Boeing petitioned for leave to appeal to the Seventh Circuit.
As you may recall, CAFA "allows a court of appeals to entertain an appeal from an order remanding to the state court a purported 'mass action' removed to federal district court." See 28 U.S.C. §§ 1332(d), 1453(a), (c). A "mass action" is a suit "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." 28 U.S.C. § 1332(d)(11)(B)(i).
The Seventh Circuit granted Boeing's petition for leave to appeal, but held that "Boeing's removal of the cases was premature." The Court reasoned that "the plaintiff's statement falls just short of a proposal, as it is rather a prediction of what might happen if the judge decided to hold a mass trial. It would be odd to think that plaintiffs could not make a telling response to a motion for dismissal of a suit on the ground of forum non conveniens without thereby having forfeited their chosen forum; by arguing against dismissal, they would be arguing for it."
The Court also noted that a proposal for a joint trial "cannot be made by a defendant" and, therefore "Boeing's desire for a joint trial cannot support removal." See 28 U.S.C. § 1332(d)(11)(B)(ii)(II). In addition, a "state court's deciding on its own initiative to conduct a joint trial would not enable removal either." Further, "the proposal can be implicit, as where a single complaint joins more than 100 plaintiffs' claims without proposing a joint trial, for the assumption would be that a single trial was intendedone complaint, one trial, is the norm."
The Court also explained that removal does not require that the proposed joint trial encompass identical relief. Rather, "suits sought to be treated as a mass action must seek monetary relief, but section 1332(d)(11)(B)(i) requires only that the plaintiffs' claims involve common issues of law or fact; the issues need not be identical across all claimsthat qualification is implicit in 'common issues of law or fact.'" Although an Illinois court is not authorized to conduct a bifurcated trial, "that's not an insuperable obstacle to a mass action." The Seventh Circuit notes that a "joint trial could be limited to one plaintiff (or a few plaintiffs) and the court could assess and award him (or them) damages. Once the defendant's liability was determined in that trial, separate trials on damages brought by the other plaintiffs against the defendants would be permissible under Illinois law." The Court noted that "that form of bifurcation is common in class actions, and a mass action is a form of class action."
Ralph T. Wutscher
Kahrl Wutscher LLP
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