'Mass Actions': Eleventh Circuit Attempts to Find a Method to the Madness

In the May issue of PLLS, I identified a number of the many unanswered questions regarding CAFA's 'mass action' provisions, codified at 28 U.S.C. '1332(d)(11). See Rothman, 'CAFA: Finding a Method to the Madness of 'Mass Actions,” Product Liability Law & Strategy (May 2007) ('Mass Action Part I').

As that issue was going to press, the Eleventh U.S. Circuit Court of Appeals sought to 'unravel some of the mysteries of CAFA's cryptic text' with respect to the 'mass action' provisions ' which the court (generously) characterized as an 'opaque, baroque maze of interlocking cross-references that defy easy interpretation.' Lowery v. Alabama Power Co., __ F. 3d __, 2007 WL 1062769, at *1, *8 (11th Cir. Apr. 11, 2007), affirming Lowery v. Honeywell Int'l Inc., 460 F. Supp. 2d 1288 (N.D. Ala. 2006). (The district court decision is cited at page 6 of Mass Action Part I.) In affirming the grant of remand in an action arising from the alleged discharge of pollutants, the court of appeals set forth the jurisdictional framework for a 'mass action.' Specifically, the court identified four jurisdictional threshold prerequisites for a 'mass action' removal: 1) numerosity ' 100 or more plaintiffs; 2) diversity ' any plaintiff is a citizen of a state different from that of any defendant ('minimal diversity'); 3) commonality ' plaintiffs' claims share common questions of law or fact; and 4) amount in controversy ' the aggregate value of plaintiffs' claims exceeds $5 million. Lowery, 2007 WL 1062769, at *10.

Issues Addressed in Dicta

The court (in dicta) addressed some of the issues presented in Mass Action Part I:

1) The court cited with approval the Senate Judiciary Committee Report stating that remands of individual claims taking a 'mass action' below the 100-plaintiff or $5 million threshold requirements do not divest the federal court of jurisdiction. Moreover, the court specifically rejected the argument that a court may not exercise jurisdiction over the action unless each individual plaintiff's claims exceed $75,000, which (for a 100 plaintiff minimum) would require the aggregate amount of a 'mass action' to exceed $7.5 million. Lowery, 2007 WL 1062769, at *12-*14; see Mass Action Part I at page 5.

2) The court observed that reliance on the Supreme Court's decision in Exxon v. Alapattah Servs. Inc., 545 U.S. 546, 125 S. Ct. 2611 (2005) to support the exercise of Supplemental Jurisdiction (28 U.S.C. '1367) over all plaintiffs in a 'mass action' where at least one plaintiff seeks in excess of $75,000 is misplaced. Lowery, 2007 WL 10622769, at *14 n.51; see Mass Action Part I at pages 5-6.

3) Under CAFA, 'a mass action will be deemed to be 'a class action removable under paragraphs (2) through (10) [of 28 U.S.C. '1332(d)] if it otherwise meets the provisions of those paragraphs,” language which appears to limit federal diversity jurisdiction over 'mass actions' to actions removed to federal court. The court noted the facial inconsistency between that provision and CAFA's grant of 'original jurisdiction' over a civil action satisfying CAFA's jurisdictional requirements. Lowery, 2007 WL 10622769, at *9 n.41, *12 n.48; see Mass Action Part I at page 6. The court of appeals, however, did not need to reach these issues; the court concluded that the removing defendants, who were added to the action after CAFA's enactment, had not satisfied their burden that the aggregate amount sought by plaintiffs exceeded $5 million.

Resolution of CAFA and Removal Issues

Although Lowery attempted to tackle the 'maze' of 'mass actions,' product liability practitioners should take note that the Eleventh Circuit's decision is notable as well for its resolution of other issues ' relating to CAFA and removal generally:

1) Defendants first added to an action after CAFA's effective date may utilize CAFA's removal provisions to remove the entire action to federal court, even as to defendants who were parties prior to CAFA's enactment. Lowery, 2007 WL 1062769, at *5-*6. Accord, Braud v. Transport Serv. Co., 445 F.3d 801 (5th Cir. 2006).

2) The removing defendant bears the burden of proving each of the jurisdictional threshold prerequisites for the removal of a 'mass action.' Although the district court had granted remand on the ground that the removing defendants had failed to show that at least one plaintiff sought in excess of $75,000, the court of appeals expressly reserved decision as to whether plaintiffs or defendants bore that burden. Lowery, 2007 WL 1062769, at *14-*15.

3) In determining the amount in controversy for removal purposes, a court may only rely on 'the limited universe of evidence available when the motion to remand is filed ' i.e., the notice of removal and accompanying documents.' Post-removal jurisdictional discovery to establish the amount in controversy is not permitted. Lowery, 2007 WL 1062769, at *19-*21.

4) The removing defendant must provide 'specific detail about the present action' to establish by a preponderance of the evidence that the requisite jurisdictional minimum is satisfied where a complaint alleges unspecified damages. Lowery, 2007 WL 1062769, at *21-*23.

Although the Eleventh Circuit in Lowery attempted to grapple with some of the thorny issues presented by CAFA's 'mass action' provisions (and removal generally), many questions remain unanswered. The Lowery decision ' and the growing list of adjectives and analogies used by courts to characterize the complexity of CAFA's 'mass action' provisions ' reinforces the observation that finding a method to the madness of 'mass actions' may indeed be light-years away.

Alan E. Rothman is the coordinating attorney for Kaye Scholer LLP's Product Liability Practice Group. In his firm's role as national coordinating counsel in pharmaceutical product liability actions, Rothman has been involved with several CAFA 'mass action' removals.

In the May issue of PLLS, I identified a number of the many unanswered questions regarding CAFA's 'mass action' provisions, codified at 28 U.S.C. '1332(d)(11). See Rothman, 'CAFA: Finding a Method to the Madness of 'Mass Actions,” Product Liability Law & Strategy (May 2007) ('Mass Action Part I').

As that issue was going to press, the Eleventh U.S. Circuit Court of Appeals sought to 'unravel some of the mysteries of CAFA's cryptic text' with respect to the 'mass action' provisions ' which the court (generously) characterized as an 'opaque, baroque maze of interlocking cross-references that defy easy interpretation.' Lowery v. Alabama Power Co., __ F. 3d __, 2007 WL 1062769, at *1, *8 (11th Cir. Apr. 11, 2007), affirming Lowery v. Honeywell Int'l Inc., 460 F. Supp. 2d 1288 (N.D. Ala. 2006). (The district court decision is cited at page 6 of Mass Action Part I.) In affirming the grant of remand in an action arising from the alleged discharge of pollutants, the court of appeals set forth the jurisdictional framework for a 'mass action.' Specifically, the court identified four jurisdictional threshold prerequisites for a 'mass action' removal: 1) numerosity ' 100 or more plaintiffs; 2) diversity ' any plaintiff is a citizen of a state different from that of any defendant ('minimal diversity'); 3) commonality ' plaintiffs' claims share common questions of law or fact; and 4) amount in controversy ' the aggregate value of plaintiffs' claims exceeds $5 million. Lowery, 2007 WL 1062769, at *10.

Issues Addressed in Dicta

The court (in dicta) addressed some of the issues presented in Mass Action Part I:

1) The court cited with approval the Senate Judiciary Committee Report stating that remands of individual claims taking a 'mass action' below the 100-plaintiff or $5 million threshold requirements do not divest the federal court of jurisdiction. Moreover, the court specifically rejected the argument that a court may not exercise jurisdiction over the action unless each individual plaintiff's claims exceed $75,000, which (for a 100 plaintiff minimum) would require the aggregate amount of a 'mass action' to exceed $7.5 million. Lowery, 2007 WL 1062769, at *12-*14; see Mass Action Part I at page 5.

2) The court observed that reliance on the Supreme Court's decision in Exxon v. Alapattah Servs. Inc., 545 U.S. 546, 125 S. Ct. 2611 (2005) to support the exercise of Supplemental Jurisdiction (28 U.S.C. '1367) over all plaintiffs in a 'mass action' where at least one plaintiff seeks in excess of $75,000 is misplaced. Lowery, 2007 WL 10622769, at *14 n.51; see Mass Action Part I at pages 5-6.

3) Under CAFA, 'a mass action will be deemed to be 'a class action removable under paragraphs (2) through (10) [of 28 U.S.C. '1332(d)] if it otherwise meets the provisions of those paragraphs,” language which appears to limit federal diversity jurisdiction over 'mass actions' to actions removed to federal court. The court noted the facial inconsistency between that provision and CAFA's grant of 'original jurisdiction' over a civil action satisfying CAFA's jurisdictional requirements. Lowery, 2007 WL 10622769, at *9 n.41, *12 n.48; see Mass Action Part I at page 6. The court of appeals, however, did not need to reach these issues; the court concluded that the removing defendants, who were added to the action after CAFA's enactment, had not satisfied their burden that the aggregate amount sought by plaintiffs exceeded $5 million.

Resolution of CAFA and Removal Issues

Although Lowery attempted to tackle the 'maze' of 'mass actions,' product liability practitioners should take note that the Eleventh Circuit's decision is notable as well for its resolution of other issues ' relating to CAFA and removal generally:

1) Defendants first added to an action after CAFA's effective date may utilize CAFA's removal provisions to remove the entire action to federal court, even as to defendants who were parties prior to CAFA's enactment. Lowery, 2007 WL 1062769, at *5-*6. Accord, Braud v. Transport Serv. Co., 445 F.3d 801 (5th Cir. 2006).

2) The removing defendant bears the burden of proving each of the jurisdictional threshold prerequisites for the removal of a 'mass action.' Although the district court had granted remand on the ground that the removing defendants had failed to show that at least one plaintiff sought in excess of $75,000, the court of appeals expressly reserved decision as to whether plaintiffs or defendants bore that burden. Lowery, 2007 WL 1062769, at *14-*15.

3) In determining the amount in controversy for removal purposes, a court may only rely on 'the limited universe of evidence available when the motion to remand is filed ' i.e., the notice of removal and accompanying documents.' Post-removal jurisdictional discovery to establish the amount in controversy is not permitted. Lowery, 2007 WL 1062769, at *19-*21.

4) The removing defendant must provide 'specific detail about the present action' to establish by a preponderance of the evidence that the requisite jurisdictional minimum is satisfied where a complaint alleges unspecified damages. Lowery, 2007 WL 1062769, at *21-*23.

Although the Eleventh Circuit in Lowery attempted to grapple with some of the thorny issues presented by CAFA's 'mass action' provisions (and removal generally), many questions remain unanswered. The Lowery decision ' and the growing list of adjectives and analogies used by courts to characterize the complexity of CAFA's 'mass action' provisions ' reinforces the observation that finding a method to the madness of 'mass actions' may indeed be light-years away.

Alan E. Rothman is the coordinating attorney for Kaye Scholer LLP's Product Liability Practice Group. In his firm's role as national coordinating counsel in pharmaceutical product liability actions, Rothman has been involved with several CAFA 'mass action' removals.