We love our home state of California, but we have long bemoaned the widespread practice of what we call litigation tourism. That is where unrelated plaintiffs, sometimes thousands of them, from all corners of the U.S. join together in mass complaints filed in California state court. For whatever reason, California courts have seemed open to hosting plaintiffs from everywhere, a point well exemplified by our Hotel California post discussing the now-vacated Bristol-Myers Squibb Co. v. Superior Court, No. A140035, 2014 WL 3747250 (Cal. Ct. App. July 30, 2014), review granted. That was where the California Court of Appeal did an end run on Daimler AG v. Bauman in a wrongly reasoned effort to find specific personal jurisdiction in California where there was none.
Maybe the wind is shifting. Our readers already know that it took the California Supreme Court less than four months to depublishBristol-Myers Squibb (reported here). In addition, multiple recent cases in California have shipped “mass tort” plaintiffs off to parts from whence they came, and the courts who have sent these interlopers packing have done so for a variety of reasons. Is this a trend? We don’t know, but we’ve put together a checklist of issues based on the recent authorities that defendants may want to reference if they are named in lawsuits they don’t feel belong in California.
Personal Jurisdiction. The Supreme Court’s Bauman opinion was a game changer, and after the false state of Bristol-Myers Squibb, we were pleased with the California Court of Appeal’s opinion in BNSF Railway v. Superior Court, 235 Cal. App. 4th 591 (2015), which we discussed here. BNSF was an asbestos case, but it is important because it rejected general personal jurisdiction over a non-California defendant, even though the defendant had substantial business in California and California was convenient for the plaintiffs’ lawyers. The latter point is particularly important because the convenience of plaintiffs’ counsel is a recurring theme, and we have time and again heard plaintiffs’ lawyers urge California courts to hold onto masses of cases because it would be convenient. This argument is especially common in Judicial Council Coordination Proceedings, or JCCPs, which are California’s version of multidistrict litigation.
In that regard, an order entered a few days ago in the Transvaginal Mesh JCCP in Los Angeles is illuminating. (A copy is available here.) The court granted Johnson & Johnson’s motion to quash for lack of personal jurisdiction vis-à-vis the non-California plaintiffs because it is a New Jersey company and thus not “at home” in California. Robinson et al. v. Johnson & Johnson et al., No. BC531848, Minute Entry, at 10-14 (Los Angeles Super. Ct. June 22, 2015). In so holding, the court rejected the plaintiffs’ argument that the procedural joinder of litigation tourists under one caption justified jurisdiction and ruled that jurisdiction is decided on a plaintiff-by-plaintiff basis:
The Court agrees with moving party that defendant’s relationship with this forum can and should be tested plaintiff-by-plaintiff, and the motion is only brought as to the non-California plaintiffs. The mere happenstance of the joinder of those claims with the claims of the California plaintiffs does not cause the Court to doubt the correctness of the ruling above. That 67 plaintiffs have banded together (or found themselves joined together) in one suit brought by California counsel in conjunction with Texas counsel does not change the analysis.
Id. at 13. So the claims brought against J&J by non-Californians were quashed for lack of general jurisdiction. We suppose the Californians were allowed to proceed in California under specific personal jurisdiction, but we’re okay with that. The problem is litigation tourism, and Bauman and its progeny are becoming potent checks on that form of abusive forum shopping.
CAFA Removal and Transfer. Another strategy that has recently and successfully addressed litigation tourists in California is the removal and transfer of “mass actions” under the Class Action Fairness Act. We wrote on Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218 (9th Cir. 2014), here. That was where the Ninth Circuit addressed the brazenly manipulative tactic of joining hundreds of plaintiffs together in multiple mass complaints in California state court, each with just fewer than 100 plaintiffs. The stated purpose of that tactic was to avoid “mass action” removal jurisdiction under CAFA and thus remain in California state court. The Ninth Circuit correctly held that plaintiffs could not evade federal jurisdiction in this manner, reasoning that the plaintiffs’ own request to be coordinated into a JCCP was a request for a joint trial, which triggered CAFA. Id. at 1223-24.
The other shoe dropped this month in Corber’s companion caseRomo v. McKesson Corp., No. ED 12-2036, 2015 WL 3622620 (C.D. Cal. June 9, 2015), which we discussed here. On remand from the Ninth Circuit, the cases were in federal court, but they could not be transferred to the Darvocet multidistrict litigation because CAFA mass actions cannot be transferred to MDLs, right?
Wrong. The district judge in Romo transferred the cases to the MDL transferor district under the general venue transfer statute, 28 U.S.C. § 1404, finding that the Eastern District of Kentucky was a more convenient forum based on one manufacturing defendant’s principal place of business there and other factors. Again, multiple claims brought by non-Californians against non-Californians dispatched from California, where they never should have been in the first place.
Severance and Forum Non Conveniens. Of course, there is the old standby, forum non conveniens. We have filed more forum non conveniens motions than we can remember, and have won some, lost others. We are encouraged by the recent California Court of Appeal opinion in David v. Medtronic, Inc., No. B254914, 2015 WL 3645254 (Cal. Ct. App. Jun. 12, 2015), where the California Court of Appeal affirmed an order dismissing claims on the basis of forum non conveniens and held that the non-Californians’ claims could be severed from the Californians to achieve that result. We discussed David here, a case that 37 plaintiffs filed together in California with just one of them actually residing in California. The crux of the ruling was that the plaintiffs’ claims were not properly joined together in one civil action because they did not arise out of “the same transaction, occurrence, or series of transactions or occurrences.” Being treated with the same medical device was not sufficient because the plaintiffs “had different surgeries, performed by different surgeons, with different knowledge and exposure to different representations.” We like that reasoning because it so widely describes the cases that we see, where the only common factor among plaintiffs is that they were treated with the same or similar products. That alone is not sufficient to meet California’s permissive joinder standards. The Court of Appeal similarly approved of the trial court’s severance of claims against a co-defendant doctor on the basis that he was “of no real importance to the outcome of the case.”
Another example close on the heels of David v. Medtronic is the Transvaginal Mesh JCCP order. The Los Angeles court dismissed claims against J&J for lack of personal jurisdiction (see above), but the subsidiary that made and sold the products had already submitted to the court’s jurisdiction. The subsidiary therefore moved to sever the plaintiffs (again, multiple plaintiffs from all over the country joined under one caption) and to dismiss their claims under forum non conveniens. The court met the subsidiary defendant halfway: It severed the claims and established a separate civil action for each plaintiff, but it declined to dismiss the cases. Citing David and echoing its reasoning, the court ruled that “each of the female plaintiffs had her implant surgery on an individual basis in any number of locations spread throughout the United States” and thus had her own medical history and treatment “based on the specific facts know to [her] doctor.” Robinson, Minute Entry at 22.
So the J&J subsidiary did not get the claims dismissed, but the severance ruling is significant standing on its own. It is a direct strike at joinder, the procedural mechanism that facilitates litigation tourism more than any other. Moreover, the court’s reasoning (and that of the Court of Appeal in David) is widely applicable and should hold sway in future cases where the plaintiffs were treated with the same or similar products, but otherwise have nothing in common. The joinder ruling should also be helpful in contexts other than forum non conveniens. The improper joinder of non-diverse plaintiffs and/or forum defendants is often a barrier to removal jurisdiction. Authorities upholding severance of plaintiffs and defendants should support efforts to gain traction in federal court. We commented on a similar dynamic under Federal Rule 21 here.
California. Such a lovely place, such a lovely face. But what should we do with out-of-staters who import their claims into California for no reason other than their lawyers believe it to be a favorable forum? We ask that they be sent home. And if we do not succeed, we ask again in the next case, and then ask again, and so on. The above discussion is meant to help. Go forth.