Permitted gamesmanship versus prohibited conduct.  That is the dichotomy that one district judge adopted to describe the transparent forum manipulation that some plaintiffs undertake under CAFA.  To be honest, neither characterization is terribly flattering:  Either plaintiffs are openly gaming the system to avoid federal jurisdiction under CAFA, or they are engaging in conduct that a federal statute downright prohibits.  Either way, the result should be an order for the defense.

Well, neither the world nor the law is perfect, as the Ninth Circuit reminded us last week in an opinion remanding hundreds of claims relating to the same prescription drug.  Briggs v. Merck Sharp & Dohme, No. 15-55873, 2015 WL 4645605 (9th Cir. Aug. 6, 2015). To back up a little, the issue is “mass action” jurisdiction under CAFA, a topic that we have been tracking for some time (includingherehere, and here).  As our readers know, CAFA permits removal of “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.”  28 U.S.C. § 1332(d)(11)(B)(i).  This has led to the widespread practice of plaintiffs’ attorneys gathering up hundreds of unrelated plaintiffs claiming injuries related to the same product or related products.  But rather than file one complaint for each plaintiff or file one consolidated complaint (either of which would almost always result in undisputable removal jurisdiction), the plaintiffs’ attorneys divide their clients into multiple mass complaints, with each complaint including at least one non-diverse plaintiff to defeat complete diversity and each numbering fewer than 100 plaintiffs.  This is their extraordinarily transparent attempt to avoid removal under CAFA “mass action” jurisdiction. 

It should not work, and it did not work last year in Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218 (9th Cir. 2014). In Corber, the Ninth Circuit held that several mass complaints, taken together, constituted a CAFA mass action.  The Court of Appeals’ reasoning was solid:  The plaintiffs collectively numbered more than 100, and the plaintiffs had proposed that their cases be tried jointly within the meaning of CAFA when they petitioned to coordinate their complaints before one California state judge “for all purposes.”  As we pointed out when we first wrote on Corber, coordination “for all purposes” is the only kind of coordination that California’s rules permit. 

Alas, we stopped short of calling Corber a blockbuster because we thought the opinion’s reasoning was more narrow than it needed to be, especially by focusing too specifically on the exact language in the plaintiffs’ coordination petition. 

We guess then we should have seen Briggs coming.  In Briggs, the other shoe dropped, and the Ninth Circuit found no mass action jurisdiction under CAFA, based in part on the language the plaintiffs used in their coordination petitions.  There were five complaints at issue, each numbering less than 100 plaintiffs, but easily exceeding 100 plaintiffs when taken together.  When the first of the complaints were filed, the drug manufacturer defendant removed the cases to federal court, which resulted in the plaintiffs’ counsel representing to the district court that the cases, if remanded, would be assigned to a single state judge “for all purposes.”  Briggs, at *3.  When the drug manufacturer removed another of the cases, the plaintiffs’ counsel similarly represented to the district court that remand would “result in these cases joining the Judicial Council Coordinated Proceeding (JCCP)” already underway in Los Angeles.  Id. at *4. 

Interestingly, the district court remanded the cases.  But the manufacturer removed them again, this time asserting “mass action” jurisdiction under CAFA.  We applaud this move, as it was already transparent enough that plaintiffs were manipulating the forum (have we mentioned that we believe this tactic to be “transparent”?), and plaintiffs had expressly affirmed their intent to coordinate their cases with the ongoing JCCP for all purposes. That is 100 or more plaintiffs proposing that their cases be tried jointly within the meaning of CAFA, which makes them a mass action, which means federal jurisdiction under Corber

The Ninth Circuit, however, saw it differently in Briggs.  As the Ninth Circuit framed the issue, there were two questions:  What does it mean to make a “proposal”; and what does it mean to “propose a joint trial”?  Id. at *6.  On the first question, the court reasoned that the “proposal” could not come from a defendant. Id. at *7.  The court also reasoned that a proposal could be implicit, as the Corber court had already ruled.  Id.. at *7 (citingCorber, 771 F.3d at 1225).  We are okay with that ruling, as there are any number of ways that plaintiffs can signal a “proposal” for a joint trial short of filing a formal request.  In blogging on Corber, we called it an “actions speak louder than words” approach. 

But according to the Ninth Circuit, a proposal has to be a “voluntary and affirmative act,” and it must be made to a court that can grant the proposed relief.  Id. at *7.  These plaintiffs had not done that—they represented to a federal district court that if their cases proceeded in state court they would be coordinated into the ongoing JCCP.  The Ninth Circuit saw these as: (1) mere predictions of what would happen if the cases were remanded, and (2) something made to a tribunal (a federal court) that lacked the authority to actually join the plaintiffs’ cases with the JCCP. Id. at **7-8. 

The Ninth Circuit also doubted whether one set of plaintiffs had requested a joint trial because, when they filed their petition to join the coordination proceeding in Los Angeles, they filed a declaration stating that they “do not seek joint trials of any cases or plaintiffs, but rather, all claims shall be tried individually.”  Id. at *10.  The Ninth Circuit also cited a case management order from the JCCP stating that the order “does not constitute a determination that these actions should be consolidated for trial.” Id.

So there you have it.  No “proposal” and no proposal for a “joint trial.”  No federal jurisdiction under CAFA.  We fault this reasoning in the Briggs opinion for the same reasons we thought Corber took too narrow a view.  That is to say, by parsing the procedure and facts so closely, the court looked past the forum manipulation that was so obviously going on, losing sight of the forest for the trees. That is unfortunate.  Some commentators have even suggested that the Briggs opinion provides the “magic words” that plaintiffs can use to avoid removal, but we don’t think so.  Sure, the plaintiffs inserted their “we don’t seek joint trials” disclaimer in their add-on petition, but the California rules still permit only one kind of coordination, and there were multiple other factors at play as well.  In the end, the takeaway is that “mass action” jurisdiction in the Ninth Circuit under Corber and Briggs will be a case-by-case inquiry, although we still like our chances.