Judith Romo v. Teva Pharmaceuticals USA, Inc.

FILED

FOR PUBLICATION SEP 24 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUDITH ROMO; VINCENT TALDONE; No. 13-56310

ROBIN TAYLER; MARGARET

TAYLOR; RANDY TAYLOR; RAY D.C. No. 5:12-cv-02036-PSG-E

TEETS; LAWRENCE TELLS;

KATHRYN TEMCHACK; CHARLES

TERRY; VERONICA TERRY; OPINION

ROBERTA THORNE; MARGARET

TIVIS; LINDA TODD; DELORES

TOOHEY; DEBRA TOURVILLE; DENA

TSOUALS; ALLEN TURNER;

CAROLYN TURNER; WANDA

TURNER; STARLET TYRONE;

GLORIA UNDERWOOD; HENRY

UNDERWOOD; JANICE VANISON;

WILLIAM VERHEYEN; CHARLES

VILDIBILL; SHARON WALLGREN;

PAM WALSH; SHARON WALSH;

KEESHA WARRIOR; LATANGA

WASHINGTON; DARLENE WATT;

JAMES WEISS; WESLEY WELBORNE,

III; DEBRA WHEELER; MARSHA

WHITT; CAROLYN WHYNO; CECILIA

WILCKENS; SANDRA WILEMON;

STELLA WILKERSON-CLARK;

JOANN WILLIAMS; JOYCE

WILLIAMS; ROSE WILLIAMS;

SHANTAS WILLIAMS; MARY

WILSON; ROSE WILSON; PATSY

WINZEY; JIMMIE WISE; RUTH

WOLFSON; JUANITA WOODSON;

LYNNE WYSOCKY, single individuals, Plaintiffs - Appellees,

v.

TEVA PHARMACEUTICALS USA,

INC.,

Defendant - Appellant.

Appeal from the United…

Opinion by Judge RAWLINSON; Dissent by Judge GOULD.

OPINION

This case presents the issue of whether removal was proper under the “mass action” provision of the Class Action Fairness Act of 2005 (CAFA), Pub.L. No. 109-2, 119 Stat. 4 (2005), when plaintiffs moved for coordination pursuant to California Code of Civil Procedure section 404. CAFA authorizes federal removal for mass actions when “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)(ll)(B)(i). Because we conclude that this CAFA jurisdictional requirement was not met under the totality of the circumstances in this case, we affirm the district court’s remand order.

I

Defendant-Appellant Teva Pharmaceuticals USA, Inc. (Teva) appeals the district court’s order remanding this case to state court. This case was one of twenty-six pending before the district court alleging injuries related to the ingestion of propox-yphene, an ingredient found in the Darvo-cet and Darvon pain medications, as well as in their generic brand counterparts. There are additional propoxyphene cases pending in…

dissenting:

I respectfully dissent.

We must decide whether removal is proper under the “mass action” provision of the Class Action Fairness Act of 2005 (“CAFA”), Pub.L. No. 109-2, 119 Stat. 4 (2005), when plaintiffs move for coordination pursuant to California Code of Civil Procedure section 404 and justify their request in part by asserting a need to *925 avoid inconsistent judgments. 1 CAFA extends federal removal jurisdiction for mass actions when “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)(ll). I would hold that these requirements are met, and would reverse the district court’s remand order.

I

The issue before us is whether Plaintiffs’ petition to coordinate actions under California Code of Civil Procedure section 404 constitutes a proposal for these actions in California state court to be tried jointly, making the actions a “mass action” subject to federal jurisdiction under CAFA. I agree with the majority that federal courts are courts of limited jurisdiction, and the general rule is that removal statutes are strictly construed…