There is an emerging consensus that defendants cannot invoke the mass action provision of the Class Action Fairness Act of 2005 (CAFA) to remove groups of similar but separate state court cases where no single case would have enough plaintiffs to qualify.

CAFA changed the traditional jurisdictional and procedural rules governing federal diversity jurisdiction over certain types of actions involving numerous plaintiffs. Among other things, CAFA made it easier to remove these cases from state court to federal court. To learn about the changes effected by CAFA, see CAFA Jurisdiction Comparison Chart. For information about removal, see Practice Note, Removal: Overview.

Among other things, CAFA defined a mass action. Mass actions are cases in which the plaintiffs do not formally obtain class certification, but, in pertinent part, "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)).

Defendants have argued that in determining whether the 100-plaintiff minimum is satisfied, federal courts should consider together any substantially similar cases. They contend that plaintiffs should not be able to evade CAFA by, for example, filing two virtually identical complaints with 55 plaintiffs each rather than one complaint with all 110 plaintiffs.

This argument initially received a positive reception. The US District Court for the Western District of Texas denied motions to remand to state court six actions, each of which had just under 100 plaintiffs, that asserted substantially similar claims. Comparing the division of plaintiffs into separate actions to both fraudulent joinder of defendants and bad faith pleading of the amount in controversy, the district court concluded that substance must trump form. Because nearly 600 plaintiffs asserted virtually identical claims, there was a removable mass action. (Hamilton v. Burlington N. Santa Fe Ry. Co., No. A-08-CA-132-SS, (W.D. Tex. Aug. 8, 2008).)

Since then, however, the trend has been in the opposite direction. The US Court of Appeals for the Eleventh Circuit earlier this month joined the US Courts of Appeals for the Third, Seventh and Ninth Circuits in holding that removal is improper when the defendant must join several cases to satisfy the 100-plaintiff requirement. (Scimone v. Carnival Corp., No. 13-12291, (11th Cir. July 1, 2013); Abrahamsen v. ConocoPhillips Co., 503 F. App'x 157 (3d Cir. 2012), cert. denied, 133 S. Ct. 1820 (2013); Anderson v. Bayer Corp., 610 F.3d 390 (7th Cir. 2010); Tanoh v. Dow Chem. Co., 561 F.3d 945 (2009).) Several judges in the US District Court for the Eastern District of Missouri have reached the same conclusion (Hammonds v. Monsanto Co., No. 4:11 CV 1660 DDN, (E.D. Mo. Nov. 15, 2011) (collecting cases)).

These courts use similar reasoning. They rely most heavily on the statutory exceptions to the definition of mass action. Among other things, CAFA excludes cases where either the claims:

(28 U.S.C. § 1332(d)(11)(B)(ii).)

There is only a mass action, therefore, if someone other than the defendant joins the claims of 100 or more plaintiffs for trial. If a group of 99 or fewer plaintiffs choose not to have their claims tried with those of the plaintiffs in some other case, the defendants cannot force them to do so to then remove both cases. This is consistent with the general rules that plaintiffs are masters of their own complaints and that federal courts should narrowly construe their removal jurisdiction. (See, for example, Scimone, , at *3-7.)

Moreover, some of these courts reason, the fact that Congress carved out exceptions for cases joined by a defendant or only consolidated for pre-trial purposes demonstrates that Congress intended that some claims that might otherwise qualify as mass actions could nonetheless remain in state court. Plaintiffs electing to litigate separately from others with similar claims therefore do not violate the spirit of the law or its letter. (See, for example, Scimone, , at *7-8.)

The Eleventh Circuit also distinguished a recent Supreme Court decision interpreting CAFA (Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345 (2013)). Knowles concerned a different statutory provision, the amount in controversy requirement for class actions (not mass actions). And, the Eleventh Circuit found, Knowles held only a plaintiff who files a proposed class action cannot enter into a binding stipulation limiting the damages sought by the uncertified class. The court found that Knowles "cannot be read to suggest that all sections of CAFA strip plaintiffs of their traditional role as masters of their complaint ... " (Scimone, , at *9).

The majority position leaves open issues regarding joinder of state court actions to satisfy the 100-plaintiff requirement. For example, some of the cases expressly refuse to decide whether a sua sponte consolidation by the state court would suffice. The courts also appear to differ about what counts as a joint trial request by the plaintiffs and what is only a request for pre-trial consolidation (compare In re Abbott Labs., Inc., 698 F.3d 568 (7th Cir. 2012) (remand denied) with Gutowski v. McKesson Corp., No. C 12-6056 CW, (N.D. Cal. Feb. 25, 2013) (remand granted)).

On the whole, however, the law appears to be moving in the direction of allowing plaintiffs to separate themselves into groups too small to qualify as mass actions. Plaintiffs' counsel who wish to remain in state court should consider this possibility. Defendants' counsel who want to remove related but separate cases to federal court under CAFA's mass actions provisions should be aware that they face an uphill battle. For information on reasons for removing a case, see Practice Note, Removal: Overview: Reasons for Removal.