117 plaintiffs filed 29 separate cases in Illinois state court arising from the crash in the Netherlands of a Turkish airliner built by Boeing. Boeing filed motions to dismiss based on the doctrine of forum non conveniens, contending that the cases should be heard in Washington state courts because the airliner was built in Washington and if the cases are tried, its employees otherwise will have to repeatedly travel to Illinois to testify in 29 separate trials. In response, plaintiffs argued that Boeing’s employees are unlikely to have to repeatedly travel to Illinois because the practice in aviation cases is to try “several exemplar cases … on one occasion at which time the issue of liability is determined for the remainder of the case.” Based on this response, Boeing removed the cases to federal district court, arguing that plaintiffs’ statement “was a proposal for a joint trial,” which made the 29 cases a mass action that could be removed under the Class Action Fairness Act. Plaintiffs moved to remand. After some of the motions to remand were granted, Boeing petitioned to appeal. The Seventh Circuit Court of Appeals decided to grant the petitions “because the appeal presents novel” CAFA issues. Koral v. Boeing Co., 2011 WL 9350 (7th Cir. Jan. 4, 2011).
The Seventh Circuit held that Boeing’s removal of the cases was premature and that the remand orders accordingly also were premature. (The decision thus indicates that the federal courts presently lack jurisdiction over the cases, but does not indicate the specific disposition of the cases that were both prematurely removed and prematurely remanded or how they are to return to state court jurisdiction.) The Seventh Circuit held that the plaintiffs’ statement about the likelihood of an exemplar (or joint) trial was a “prediction of what might happen if the judge decided to hold a mass trial,” rather than a proposal to the court for a joint trial that would have permitted removal. “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.”
After holding that a “proposal” for a joint trial that would permit removal based on CAFA does not include a prediction in response to a motion to dismiss, the Seventh Circuit next held that a “proposal” for a joint trial that would permit removal based on CAFA also does include a decision by a court to conduct a joint trial because the “proposal” must be made by a plaintiff, rather than by a court.
The Seventh Circuit then explained, however, that a proposal for a joint trial that would permit removal need not include “relief,” i.e., damages, as to all plaintiffs. A proposal for a joint trial as to liability (but not damages) accordingly apparently would be sufficient to permit removal.
Koral v. Boeing Co. provides significant guidance concerning the interpretation of CAFA’s provision for removal of groups of cases from state court to federal court as a mass action based on a proposal for a joint trial.