In Atwell v. Boston Scientific Corporation, 2013 WL 6050762 (8th Cir. Nov. 18, 2013), the Eighth Circuit held that plaintiffs’ request to assign three multi-plaintiff cases “to a single Judge for purposes of discovery and trial” constituted a proposal for the actions to be tried jointly as a mass action under CAFA.
CAFA defines a mass action as: “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) (emphasis added). In Atwell, plaintiffs filed three separate multi-plaintiff complaints (each containing under 100 plaintiffs) and subsequently moved to assign those actions “to a single Judge for purposes of discovery and trial.” 2013 WL 6050762, at *1. The defendant removed the three actions to federal court arguing that plaintiffs’ motions were a proposal to try the three cases jointly, collectively rending them a mass action under CAFA. Id.
The Eighth Circuit agreed, reversing remand orders issued by the lower courts. The Eighth Circuit found that the lower courts failed to follow or properly apply the Seventh Circuit decision in In re Abbott Laboratories, Inc., 698 F.3d 568 (7th Cir. 2012). Abbott held that a request by plaintiffs for “consolidated pretrial, trial, or post-trial proceedings” in separate actions involving hundreds of claims constituted an implicit proposal to try those claims jointly. Id. at 571-73. Noting that the Atwell plaintiffs had requested a single judge who could “handle these cases for consistency of rulings, judicial economy, and administration of justice” and try the cases with a possible bellwether process, the Court found it was “‘difficult to see how a trial court could consolidate the cases as requested by plaintiffs and not hold a joint trial or an exemplar trial with the legal issues applied to the remaining cases.’” 2013 WL 6050762, at *5 (quoting In re Abbott Labs., 698 F.3d at 573). The Court concluded that “the motions for assignment to a single judge filed by the three plaintiff groups to the same state circuit court, combined with plaintiffs’ candid explanation of their objectives, required denial of the motions to remand.” Id.
Notably, the Eighth Circuit’s ruling contrasts with a recent decision by the Ninth Circuit in Romo v. Teva Pharmaceuticals USA, Inc., 2013 WL 5314334 (9th Cir. Sept. 24, 2013), highlighting the fact that whether a motion or request by plaintiffs constitutes a proposal for actions to be tried jointly under CAFA remains a fact-specific inquiry.