Margalit Corber v. Xanodyne Pharmaceuticals, Inc.

Opinion by Judge GOULD; Dissent by Judge RAWLINSON.

OPINION

We must decide whether removal is proper under the “mass action” provision of the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332 (d)(ll)(B)(i), when plaintiffs in several actions 1 moved for coordination in the state trial court pursuant to California Code of Civil Procedure section 404 “for all purposes” and justified .their request in part by asserting a need to avoid inconsistent judgments. CAFA extends federal removal jurisdiction for certain class actions and for mass actions 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)(ll)(B)(i). Because we conclude that all of the CAFA requirements for a removable mass action are met under the totality of the circumstances in these cases, we reverse the district court’s remand orders.

*1221 I

Defendants-Appellants Teva Pharmaceuticals USA, Inc. (“Teva”) and Xanodyne Pharmaceuticals, Inc. (“Xanodyne”) appeal from the district court’s orders remanding these cases to state court. These cases were two of twenty-six…

with whom Judge BERZON joins, dissenting:

This is admittedly a fairly close case but, upon reflection, I respectfully dissent from the conclusion of my esteemed colleagues that this case fits within the parameters for removal under the Class Action Fairness Act of 2005 (CAFA).

I start from the well-established premise that removal is disfavored when determining federal jurisdiction, and that any doubt that exists when considering removal statutes should be construed against removal. See Tanoh v. Dow Chemical Corp., 561 F.3d 945, 953 (9th Cir.2009); see also State of Hawaii v. HSBC Bank Nev. N.A., 761 F.3d 1027 (9th Cir.2014). As we also recognized in Tanoh , CAFA’s mass action provision is “fairly narrow.” 561 F.3d at 953 .

With those principles firmly in mind, I reach a different conclusion than that of the majority. The plain language of the Class Action Fairness Act, 28 U.S.C. § 1332 (d)(ll)(B)(i), confers jurisdiction upon federal district courts to try a “mass action.” A mass action is defined as:

28 U.S.C. § 1332 (d)(ll)(B)(i) (emphasis added).

The majority concludes that the Plaintiffs proposed their cases “to be tried jointly” by filing a petition for coordination…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARGALIT CORBER; RENE CARO; No. 13-56306

STEVE DANTZLER; LINDA SOWARDS;

LORI HUISMAN; JOHNNY GEORGE, D.C. No. SR.; TERRY PERRY; WILLIAM 2:12-cv-09986-

RACKLEY; ANGELA YOUNG; PAMELA PSG-E

RODRIGUEZ; STEVEN SYVERSON;

OLGA CAICOYA; JANET CARROLL;

ROSE CASH; ULAD CELENTANO;

VIRGINIA COSTANZO; KIMBERLY

FILLIGIM; ARMELDIA SMITH; CARLA

WEST; JOANNE BIERZYNSKI,

individually and as next of kin to Eleanor Wojcik; SHARLEY MORRIS;

WYOMIA TIMMONS; DEAN

REINKING; DANIEL THORNE;

WENDELEN ASHBY; CARMEN

BEDFORD; CLAUDE COMMODORE;

JAMES HENSON; NANCY LOCKE;

MILDRED SCOTT; BILLIE BURNETT;

SHEENA HALL; BRENDA ROBERGE,

individually and as next of kin to Ernest Roberge; DEBORAH

WOODSUM; RICHARD PASCUITO,

Plaintiffs-Appellees,

v.

XANODYNE PHARMACEUTICALS,

INC.,

Defendant-Appellant. JUDITH ROMO; VINCENT TALDONE; No. 13-56310

ROBIN TAYLER; MARGARET

TAYLOR; RANDY TAYLOR; RAY D.C. No. TEETS; LAWRENCE TELLS; KATHRYN 5:12-cv-02036-

TEMCHACK; CHARLES TERRY; PSG-E

VERONICA TERRY; ROBERTA

THORNE; MARGARET…