August 31, 2015 Practice Points

Ninth Circuit Remands Hundreds of Claims Despite Possible Joinder

By Kristin L. Beckman

The Ninth Circuit Court of Appeals recently remanded hundreds of claims regarding the same prescription drug in Briggs v. Merck Sharp & Dohme, No. 15-55873, 2015 WL 4645605 (9th Cir. Aug. 6, 2015). In doing do, the court found that the district court had no mass-action jurisdiction under the Class Action Fairness Act (CAFA), primarily based on both the language of the statute, 28 U.S.C. § 1332(d), as well as in the individual petitions when the petitions did not “propose” any joint trial of the claims.

In Briggs, the plaintiffs filed five separate cases, each including fewer than 100 plaintiffs with at least one non-diverse plaintiff, all involving the same drug manufacturer and complaints. At one point in the proceedings, plaintiffs’ counsel represented to the district court that remand would “result in these cases joining the Judicial Council Coordinated Proceeding (JCCP),” already underway in Los Angeles. Nevertheless, the district court remanded the cases and the manufacturer removed them again, this time asserting mass-action jurisdiction under CAFA. Despite the plaintiffs expressly affirming their intention to coordinate cases with the ongoing JCCP (arguably implicating federal jurisdiction, as there were 100 or more plaintiffs proposed in other cases be tried jointly within the meaning of CAFA), the district court denied remand.

In doing so, the lower court opined that the representations made during hearings, implicitly proposing that the claims be joined with the claims of other plaintiffs and four other cases, were sufficient to implicate a proposal for a joint trial within the meaning of CAFA.

On appeal, the Ninth Circuit considered whether the plaintiffs made a “proposal” for joint trial of claims of 100 or more persons sufficient to trigger CAFA’s removal jurisdiction. Specifically, the Ninth Circuit evaluated whether the plaintiffs in Briggs had 1) made any “voluntary or affirmative acts”—and an “intentional act”—that would constitute such a proposal (and not a mere suggestion or prediction) and also 2) whether the plaintiffs had requested any joint trial “made to a court that can effect the proposed relief.” The court concluded they had not. In the Briggs decision, the appellate court reasoned that the plaintiffs’ representations regarding the ongoing JCCP were “predictions” of what would happen if the cases were remanded. Moreover, the statements regarding the JCCP were made to a court (the district court) that lacked any authority to actually join the plaintiffs’ cases with the JCCP. Accordingly, the statements were not “made to [any] court that [could] effect the proposed relief” and, therefore, the plaintiffs’ claims were insufficient to serve as a proposal for joint trials.

Finally, the Ninth Circuit indicated that the plaintiffs had not requested a joint trial because they had filed a declaration stating that they “do not see joint trials of any cases or plaintiffs, but rather, all claims shall be tried individually.” Furthermore, the JCCP’s case-management order stated that it did “not constitute a determination that these actions should be consolidated for trial.” Accordingly, because there was no "proposal" for a "joint trial," the Ninth Circuit concluded that the district court did not have jurisdiction and remanded the cases with directions to the district court to remand the five cases to state court.

Practitioners may want to review Briggs carefully, as the court stopped short of providing—but suggested—wording in complaints that plaintiffs’ counsel could use to defeat CAFA jurisdiction in the form of a declaration. Moreover, Briggs establishes that defendants cannot “propose” a joint trial for removal purposes.

—Kristin L. Beckman, Barrasso Usdin Kupperman Freeman & Sarver, LLC, New Orleans, LA

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