     Case: 14-31383   Document: 00514301083    Page: 1   Date Filed: 01/09/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                  January 9, 2018
                                No. 14-31383
                                                                   Lyle W. Cayce
                                                                        Clerk
WARREN LESTER; ALFREDA MARSHALL; DAVID QUINN; DEMETRIA
STERLING; DAWN HUMPHRIES; ET AL.,

             Plaintiffs–Appellants,

v.

EXXON MOBIL CORPORATION; CHEVRON USA, INCORPORATED;
JOSEPH GREFER; CAMILLE GREFER; ROSEMARIE GREFER HAASE;
HENRY GREFER; OFS, INCORPORATED; INTRACOASTAL TUBULAR
SERVICES, INCORPORATED; RATHBORNE PROPERTIES, L.L.C.;
RATHBORNE LAND COMPANY, L.L.C.; RATHBORNE COMPANIES,
L.L.C.; ALPHA TECHNICAL SERVICES, INCORPORATED; SHELL OIL
COMPANY; SHELL OFFSHORE, INCORPORATED; BP AMERICA
PRODUCTION COMPANY, formerly known as Amoco Production Company;
VARCO, L.P.; TEXACO, INCORPORATED; UNION OIL COMPANY OF
CALIFORNIA; CONOCOPHILLIPS COMPANY; MARATHON OIL
COMPANY; FREEPORT MCMORAN, INCORPORATED; IMC GLOBAL,
INCORPORATED; EXCHANGE OIL & GAS COMPANY; KERR-MCGEE
OIL AND GAS CORPORATION; TORCH ENERGY SERVICES,
INCORPORATED; TORCH OPERATING COMPANY; FRENCH JORDAN,
INCORPORATED, doing business as Shield Coat, Incorporated; PLACID OIL
COMPANY; ROSEWOOD RESOURCES, INCORPORATED; DYNAMIC
EXPLORATIONS, INCORPORATED; CERTAIN UNDERWRITERS AT
LLOYDS LONDON; CERTAIN LONDON MARKET INSURANCE
COMPANIES; HYDRIL COMPANY, INCORPORATED; OILFIELD
TESTERS, INCORPORATED; KBR, INCORPORATED; MCDERMOTT,
INCORPORATED; BREDERO PRICE COMPANY,

             Defendants–Appellees.
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                                      No. 14-31383
SHIRLEY BOTTLEY; JOVANE BENOIT; JUAJUAN BENOIT,

              Plaintiffs–Appellants,

v.

EXXON MOBIL CORPORATION; EXXON MOBIL OIL CORPORATION;
HUMBLE OIL & REFINING COMPANY; HUMBLE OIL & REFINING
CORPORATION; CHEVRON USA, INCORPORATED; BP CORPORATION
NORTH AMERICA, INCORPORATED; DEVON ENERGY PRODUCTION
COMPANY, L.P.; CONOCOPHILLIPS COMPANY; SHELL OIL COMPANY;
MARATHON OIL COMPANY; OXY, INCORPORATED; VARCO, L.P.;
INTRACOASTAL TUBULAR SERVICES, INCORPORATED; BP AMERICA
PRODUCTION COMPANY,

             Defendants–Appellees.


                  Appeals from the United States District Court
                      for the Eastern District of Louisiana


Before OWEN, GRAVES, and HIGGINSON, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
       ExxonMobil Oil Corporation removed the underlying suits as a “mass
action” pursuant to the Class Action Fairness Act of 2005. 1 The consolidated
interlocutory appeals of Warren Lester, et al. and Shirley Bottley, et al.
(Plaintiffs) challenge the district court’s order denying their respective motions
to remand. We affirm.
                                             I
       The Class Action Fairness Act (CAFA) “applies to any civil action
commenced on or after” CAFA’s effective date, February 18, 2005. 2 CAFA



       1 Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).
       2 Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801, 803 (5th Cir. 2006) (quoting CAFA
§ 9, 119 Stat. at 14).
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                                    No. 14-31383
expands federal removal jurisdiction over certain class and mass actions that
satisfy CAFA’s jurisdictional requirements. 3 This appeal raises two issues of
first impression in this circuit: (1) whether a motion to consolidate and transfer
related state court suits effectuates a “mass action” removable under CAFA;
and (2) if so, whether CAFA may be invoked as a basis for removal when one
of the underlying suits comprising the purported mass action commenced prior
to CAFA’s 2005 effective date.
      The lawsuits originated in Louisiana civil district court. In 2002, over
600 plaintiffs filed a petition in Warren Lester, et al. v. Exxon Mobil
Corporation, et al. alleging personal injury and property damage claims arising
from naturally occurring radioactive material (NORM).             The state court
utilized a “flighting” system to segregate the Lester plaintiffs’ claims into
smaller trials or “flights.” Plaintiffs claim there is no preclusive effect between
flights and thus far, no flight has involved more than twelve plaintiffs.
       In 2013, Shirley Bottley, Jovane Benoit, and Juajuan Benoit filed a
wrongful death and survival action—Shirley Bottley et al. v. Exxon Mobil Corp.,
et al.—seeking to recover for injuries to and the death of Cornelius Bottley.
Prior to his death, Cornelius Bottley had been a plaintiff in Lester. The Lester
and Bottley plaintiffs are represented by the same counsel.
      Shortly thereafter, the state court in Lester set for trial a flight of eight
plaintiffs—the Louisiana Texas Oilfield Inspection Service Flight (LTOIS)—
which included Cornelius Bottley’s claim. Apparently hoping to join the LTOIS
flight for trial, the Bottley plaintiffs moved to transfer and consolidate their
three-plaintiff suit with Lester. ExxonMobil Oil Corporation (Mobil Oil)—a
named defendant only in Bottley—promptly removed both suits. Mobil Oil




      3   28 U.S.C. § 1332(d).
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                                       No. 14-31383
claimed Bottley and Lester were removable as a newly commenced mass action
under CAFA. 4 At the time of removal, over 500 plaintiffs remained in Lester.
       Both the Bottley and Lester plaintiffs moved for remand asserting a lack
of subject matter jurisdiction.          They claimed that the Bottley plaintiffs’
consolidation motion did not give rise to a mass action, and in any event, CAFA
did not provide an opportunity for removal because the Lester action was
commenced prior to CAFA’s effective date. The district court denied remand,
ordered Bottley consolidated with Lester, and later denied Plaintiffs’ Motion for
Reconsideration. 5      Recognizing that its decision “resolve[d] a significant
jurisdictional question,” the district court advised that “it might be wise for the
parties to seek Fifth Circuit review at the beginning of the long and costly
process of serial trials in this matter.” The Bottley and Lester plaintiffs then
filed a petition for permission to appeal under 29 U.S.C. § 1292(b), and this
court granted that petition.
       We conclude that Mobil Oil was permitted to remove both Bottley and
Lester to federal court as a mass action under CAFA.
                                              II
       CAFA authorizes the removal of “mass actions,” defined as “any civil
action . . . 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.” 6 Excluded from that definition is any civil action in



       4  Exxon Mobil Corporation, a defendant named in both suits, is a separate and distinct
entity from ExxonMobil Oil Corporation (Mobil Oil), the removing party.
        5 After we issued an order granting Plaintiffs’ interlocutory appeal, Plaintiffs also

sought permission to appeal the district court’s order denying Plaintiffs’ Motion for
Reconsideration pursuant to 28 U.S.C. § 1453(c). See Motion for Permission to Appeal at 1-3,
Lester et al. v. Exxon Mobil Corp. et al., No. 15-90002 (5th Cir. Jan. 23, 2015), DCN No. 2. We
denied that request. See Order Denying Motion for Leave to Appeal, Lester et al. v. Exxon
Mobil Corp. et al., No. 15-90002 (5th Cir. Mar. 11, 2015), DCN No. 34.
        6 28 U.S.C. § 1332(d)(11)(B)(i).

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                                     No. 14-31383
which “the claims are joined upon motion of a defendant,” or “the claims have
been consolidated or coordinated solely for pretrial proceedings.” 7 CAFA’s
amount in controversy and minimal diversity requirements are not in dispute. 8
“We review a district court’s denial of a motion to remand for lack of subject
matter jurisdiction de novo,” 9 and the district court’s construction of CAFA
presents questions of law that we also review de novo.
       Mobil Oil contends, and the district court concluded, that the mass action
inquiry is focused on what plaintiffs proposed. Mobil Oil argues that the
Bottley plaintiffs’ filing of a motion to consolidate effectuated a mass action
under CAFA—Bottley plus Lester easily meets CAFA’s 100-person numerosity
requirement.      In their briefs, however, Plaintiffs argued that the Bottley
motion did not propose a joint trial of 100 or more persons. Their arguments
essentially are comprised of three main contentions: (1) there is no mass action
because, they assert, the motion for consolidation was not granted by the state
trial court prior to removal, (2) the Bottley motion intended to propose a joint
trial only with the LTOIS flight, and (3) Lester’s procedural history, involving
small trial flights with no accompanying preclusive effect, indicates the
absence of a joint trial involving 100 or more persons.
       As a factual matter, the record is unclear regarding whether the state
court signed a consolidation order. That ambiguity is immaterial to the mass
action inquiry, however, because the plain language of CAFA indicates that a
mass action arises upon a proposal for joint trial. 10 “[T]he language selected
by Congress must be given effect.” 11



       7 Id. § 1332(d)(11)(B)(ii)(II), (IV).
       8 Id. § 1332(d)(2), (6).
       9 Hood ex rel. Mississippi v. JP Morgan Chase & Co., 737 F.3d 78, 84 (5th Cir. 2013)

(per curiam) (citing Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013)).
       10 28 U.S.C. § 1332(d)(11)(B)(i).
       11 Quarles v. St. Clair, 711 F.2d 691, 698 (5th Cir. 1983).

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       The Bottley plaintiffs moved to consolidate their case with the Lester
case, not just the flight set for trial. The Bottley plaintiffs requested transfer
to “effect a consolidation for purpose of trial pursuant to Article 1561 of the
Louisiana Code of Civil Procedure.” Article 1561, titled “Consolidation for
Trial,” provides:
       When two or more separate actions are pending in the same court,
       the section or division of the court in which the first filed action is
       pending may order consolidation of the actions for trial after a
       contradictory hearing, and upon a finding that common issues of
       fact and law predominate . . . . 12

       The Bottley motion alleged that the cases involved “overlapping
liabilities, damages, and questions of law and fact” and “[t]he determination of
any of these issues in either case will have great bearing on the other and vice
versa.” It further stated that consolidation was sought in “an effort to seek
judicial efficiency.”
       Additionally, as noted by the district court, Louisiana case law seems to
have interpreted Article 1561, in accord with the article’s plain language, to
only permit consolidation for trial, as opposed to pretrial, purposes. 13 To the
extent Lester claims the Bottley motion sought consolidation only with
Cornelius Bottley’s “lawsuit,” or to be set for trial with the upcoming LTOIS
flight, the argument is contrary to Louisiana law. In any event, the motion to
consolidate that the Bottley plaintiffs filed did not seek to consolidate their
claims with only the Bottley claim in Lester, and it would have been impossible
to do so, since Bottley’s claim in Lester was but one claim in a single, larger
action. The proposal was to consolidate the Bottley suit with the Lester suit.



       12 LA. CODE CIV. PROC. art. 1561.
       13 See Boh v. James Industrial Contractors, LLC, 2003-1211, p. 11-12 (La. App. 4 Cir.
2/11/04), 868 So. 2d 180, 186, writ denied sub nom. Boh v. James Indus. Contractors, 2004-
0456 (La. 3/5/04), 869 So. 2d 801.
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                                       No. 14-31383
Whether CAFA applies does not and cannot depend on how a state trial court
actually manages various claims within a larger action. The focus of CAFA is
the consolidation that is proposed. 14 Accordingly, CAFA’s applicability cannot
turn on the fact that the state trial court in Lester had, at least as of the time
of removal, employed “flights” to try some of the individual claims in smaller
clusters.
       With regard to CAFA’s provisions, decisions from our sister Circuit
Courts are instructive. Based on facts similar to those in the present case, the
Seventh Circuit held that the plaintiffs had proposed a joint trial. In In re
Abbott Laboratories, Inc., 15 plaintiffs from ten separate lawsuits, totaling
100-plus in the aggregate, moved for consolidation “through trial,” “not solely
for pretrial proceedings,” and to “eliminate duplicative discovery and pretrial
litigation, prevent inconsistent pretrial and trial rulings, and thereby promote
judicial efficiency.” 16
       In Corber v. Xanodyne Pharmaceuticals, Inc., 17 the Ninth Circuit held
that plaintiffs proposed a joint trial when they filed petitions to coordinate
their actions. 18 Though the plaintiffs’ petitions focused on pre-trial purposes,
they also requested coordination “for all purposes” and cited concerns of
inconsistent judgments and conflicting determinations of liability. 19
       The facts of this case differ from those in Parson v. Johnson & Johnson, 20
in which the Tenth Circuit determined that a joint trial was not proposed. 21


       14 See Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759, 762 (7th Cir. 2008) (“It
does not matter whether a trial covering 100 or more plaintiffs actually ensues; the statutory
question is whether one has been proposed.”).
       15 698 F.3d 568 (7th Cir. 2012).
       16 Id. at 570-71 (internal quotation marks omitted).
       17 771 F.3d 1218 (9th Cir. 2014).
       18 Id. at 1223.
       19 Id. at 1223-24 (internal quotation marks omitted).
       20 749 F.3d 879 (10th Cir. 2014).
       21 See id. at 886-87.

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                                        No. 14-31383
That court rejected the contention that plaintiffs had proposed a joint trial by
filing twelve separate suits, each involving fewer than 100 plaintiffs, in the
same court before the same judge. 22 In each complaint, the plaintiffs explicitly
disclaimed any intention to propose a joint trial. 23                    The court further
emphasized that no proposal “may be inferred . . . where [plaintiffs] made no
request that the claims be consolidated or coordinated for trial in any way.” 24
       The Plaintiffs contend that there is no joint trial proposal unless it is
proposed that a court hear 100 or more plaintiffs’ claims together, or hear an
“exemplar” case followed by the application of claim or issue preclusion to other
plaintiffs.    Plaintiffs cite language from the Seventh Circuit’s opinion in
Bullard v. Burlington Northern Santa Fe Railway Co. 25 There, the court
opined by way of example that a trial that involved only “10 exemplary
plaintiffs, followed by application of issue or claim preclusion to 134 more
plaintiffs without another trial, is one in which the claims of 100 or more
persons are being tried jointly.” 26 The court’s example, however, was by no
means exhaustive.         In fact, the court also said that “[a] proposal to hold
multiple trials in a single suit [with] say, 72 plaintiffs at a time . . . does not
take the suit outside [28 U.S.C.] § 1332(d)(11).” 27 As the Seventh Circuit later
explained in Abbott, “a joint trial can take different forms as long as the
plaintiffs’ claims are being determined jointly.” 28
       In any event, the Lester claims were filed under one complaint involving
common issues of law and fact, in one forum, by the same attorneys. The



       22Id.
       23Id. at 888 & n.3 (“The complaints state that ‘[j]oinder of Plaintiffs’ claims is for the
purpose of pretrial discovery and proceedings only and is not for trial.’”).
      24 Id. at 888.
      25 535 F.3d 759 (7th Cir. 2008).
      26 Id. at 762.
      27 Id.
      28 In re Abbott Labs., Inc., 698 F.3d 568, 573 (7th Cir. 2012).

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                                      No. 14-31383
plaintiffs in Bottley, represented by the same counsel as the Lester plaintiffs,
then sought consolidation with Lester, not with a limited number of claims that
were part of Lester. In sum, the Bottley consolidation motion proposed a joint
trial of 100 or more plaintiffs’ claims, a mass action under CAFA. Plaintiffs
contend that this conclusion creates a “dangerous precedent” by “allow[ing]
non-parties to trigger removal while the actual parties-plaintiff in the case
have done nothing.” 29 We need not resolve whether a plaintiff represented by
separate counsel can unilaterally trigger CAFA by filing an opposed motion to
consolidate a standalone case with a preexisting suit, because here the same
lawyers represented the plaintiffs in both Lester and Bottley.
                                            III
       This court must also determine, however, whether CAFA applies to
Bottley and Lester given that Lester commenced well prior to CAFA’s effective
date. Removal of Lester, the Plaintiffs contend, is impermissibly retroactive.
They deduce that Bottley is also not removable because Bottley is only a “mass
action” when paired with the number of claimants in Lester.
       Section 9 of CAFA provides that “[t]he amendments made by this Act
apply to any civil action commenced on or after the date of enactment of this
Act,” which was February 18, 2005. 30 “[CAFA] does not apply retroactively.” 31
State law determines when a civil action “commences” for purposes of CAFA. 32
Under Louisiana law, “a suit is commenced by filing of a pleading presenting
the demand to a court of competent jurisdiction.” 33 The Lester action was filed
on December 20, 2002; the Bottley action was filed on July 16, 2013.



       29 Cf. Briggs v. Merck Sharp & Dohme, 796 F.3d 1038, 1049 (9th Cir. 2015) (suggesting
that “either” of two plaintiffs groups may unilaterally trigger CAFA).
       30 Pub. L. No. 109-2, 119 Stat. 4, 14 (2005).
       31 Admiral Ins. Co. v. Abshire, 574 F.3d 267, 273 (5th Cir. 2009).
       32 Id.; Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801, 803 (5th Cir. 2006).
       33 Braud, 445 F.3d at 803.

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                                     No. 14-31383
       In its brief, Mobil Oil argued that the date on which a mass action came
into existence is the relevant “commencement.” At oral argument, Mobil Oil
posited that because Bottley commenced post-CAFA, both Lester and Bottley
are removable. Plaintiffs initially only argued that the district court erred in
its reliance on a prior decision of this court, Braud v. Transport Service Co. of
Illinois.   But in their reply brief and at oral argument, they cited new
authority, Admiral Insurance Co. v. Abshire, 34 for the proposition that though
CAFA jurisdiction may exist over the Lester-Bottley mass action, removal can
still be improper. After considering CAFA’s text, we conclude that both Lester
and Bottley were properly removed, though not for the reasons cited by the
district court. 35
       The district court relied on Braud. In Braud, we held that a post-CAFA
amendment to a pleading adding a new defendant to a pre-CAFA suit
re-commences the suit as to the added defendant. 36 The district court in the
present case opined that “an amendment adding Mobil Oil as a party would
indeed be a ‘commencement’ sufficient to trigger the option of removability. A
valid state court order consolidating Lester and Bottley would certainly grant
Mobil Oil the right to remove as a ‘new defendant’ under Braud.” Braud,
however, did not entirely answer the question presented. It is problematic to
equate amending a complaint with consolidation in all cases. For example, in
Braud, the amended pleading adding a new defendant rendered the added
defendant liable to all class action plaintiffs. With consolidation, this would
not necessarily be so. Indeed, Plaintiffs argue that under Louisiana law,
consolidation would not make Mobil Oil “a defendant in both cases,” as the



       34 574 F.3d 267 (5th Cir. 2009).
       35 We wish to note that both parties advanced new theories and authorities on appeal
that were not before the district court.
       36 Braud, 445 F.3d at 804-05.

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                                         No. 14-31383
district court posited.           Rather, Louisiana law consistently holds that
consolidation does not effect a “merger” of consolidated suits unless there is a
clear intention to do so, and Mobil Oil does not claim that it is now a defendant
as to each plaintiff in Lester and Bottley. 37
       In Admiral Insurance, which involved a class action, not a mass action, 38
we explained that while the term “civil action” in § 9 of CAFA may encompass
a “class action,” the terms are not synonymous. 39                     “A ‘civil action’ may
commence before it becomes a ‘class action,’ and Congress selected the
commencement of the ‘civil action’ as the relevant event under CAFA’s
effective-date provision.” 40 Similarly, as relevant here, a “civil action” or many
“civil action[s]” may commence before they become a “mass action.” 41
       It is of course true that Lester alone could not be removed. It does not
follow, however, that a post-CAFA mass action encompassing civil actions
commenced both before and after CAFA’s commencement cannot be removed.
Congress said CAFA applies to “any civil action commenced” after its effective
date. 42 The Bottley suit is a civil action that was commenced after CAFA’s
effective date. It became a “mass action” when the Plaintiffs proposed that the
claims be tried jointly with those in Lester. Under CAFA, “the term ‘mass
action’ means any civil action . . . in which monetary relief claims of 100 or


       37  See Davis v. Am. Home Prods. Corp., 95-1035 (La. 5/19/95), 654 So. 2d 681 (mem.)
(Calogero, C.J., concurring in denial of writ); Ricks v. Kentwood Oil Co., 2009-0677, p. 5
(La.App. 1 Cir. 2/23/10), 38 So. 3d 363, 366 (La. Ct. App.); Johnson v. Shafor, 2008-2145, p.
11 (La. App. 1 Cir. 7/29/09), 22 So. 3d 935, 941 (La. Ct. App.) writ denied, 2009-1921 (La.
11/20/09), 25 So. 3d 812; Dendy v. City Nat. Bank, 2006-2436, p. 6 (La. App. 1 Cir. 10/17/07),
977 So. 2d 8, 11 (La. Ct. App.).
        38 574 F.3d at 270.
        39 Id. at 273-74.
        40 Id. at 274.
        41 See Bullard v. Burlington N. Santa Fe Ry., 535 F.3d 759, 762 (7th Cir. 2008)

(“[L]itigation counts as a class action if it is either filed as a representative suit or becomes a
‘mass action’ at any time. That could be long after filing. . . . The prospect of this situation is
why § 1332(d)(11) allows the definition to be applied after the suits’ filing date.”).
        42 Pub. L. No. 109-2, 119 Stat. 4, 14 (2005) (emphasis added).

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                                       No. 14-31383
more persons are proposed to be tried jointly on the ground that the plaintiffs’
claims involve common questions of law or fact.” 43 The Bottley action comes
within “any civil action” because it is a civil action commenced after the
effective date of CAFA, and when it was proposed that Bottley be consolidated
with Lester, Bottley became a mass action subject to CAFA’s provisions,
including the removal provisions.
       Plaintiffs’ argument commingles                §9    and     CAFA’s     jurisdictional
provisions.     We made clear in Admiral Insurance that § 9 and CAFA’s
jurisdictional provisions ask different questions—“there are still suits for
which jurisdiction exists but for which removal is improper.” 44 But unlike in
Admiral Insurance, where a class action existed for jurisdictional purposes but
there was no commencement post-CAFA, both prongs are met here. All § 9
requires is that “any civil action” be commenced after CAFA’s enactment. 45
Bottley is that civil action; it is the basis for CAFA’s applicability.
       This comports with our holding in Braud that “it is the [mass] ‘action,’
not claims against particular defendants, that is removable.” 46 Though our
statement there supported the conclusion that post-removal events do not oust
CAFA jurisdiction, the Eleventh Circuit applied the principle in more
analogous circumstances in Lowery v. Alabama Power Co. 47                           There, a
defendant added post-CAFA to a pre-CAFA suit brought by over 400 plaintiffs
removed the entire suit as a mass action. 48 Because the plaintiffs did not




       4328 U.S.C. § 1332(d)(11)(B)(i).
       44574 F.3d at 279.
      45 119 Stat. at 14 (emphasis added).
      46 Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801, 808 (5th Cir. 2006) (citing Dinkel v.

General Motors Corp., 400 F.Supp.2d 289, 294 (D. Me. 2005)).
      47 483 F.3d 1184 (11th Cir. 2007).
      48 Id. at 1187-88.

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                                       No. 14-31383
dispute that CAFA was applicable to the newly added defendant, 49 the Lowery
court only had occasion to consider whether the pre-CAFA defendants could
“tag along” in removal. 50 Answering in the affirmative and citing Braud, the
court averred that CAFA’s reference to “‘actions,’ as opposed to ‘claims,’
suggests that removal under CAFA is broadly inclusive.” 51
       The Eleventh Circuit further noted that permitting removal over the suit
as a whole, inclusive of the pre-CAFA claims, was consistent with
congressional intent. 52 The Eleventh Circuit explained:
       First, as to the statutory purpose, Congress expressly intended
       CAFA to expand federal diversity jurisdiction over class actions.
       To read the plain language of the removal provisions narrowly,
       such that removal would only be available as to claims against the
       particular removing defendants, would frustrate congressional
       intent that CAFA be used to provide for more uniform federal
       disposition of class actions affecting interstate commerce. As a
       result of such a reading, certain defendants in a lawsuit could
       unilaterally elect to have the claims against them heard in a
       federal court while other defendants would be excluded from that
       forum, notwithstanding that all the claims against both sets of
       defendants arose from the same group of plaintiffs on common
       issues of law and fact. Such a result would run counter to the
       express purposes of CAFA. 53
We agree. As stated in Lowery, “the removal of the claims against all the
defendants either stands or falls as a whole.” 54 Because the Bottley claims are
component parts of a mass action removable under CAFA and the Bottley suit


       49  Id. at 1195-97 & n.28 (“[P]laintiffs . . . have not argued that CAFA is wholly
inapplicable to the entire case. In other words, plaintiffs do not dispute that CAFA applies to
Alabama Power, which was added as a defendant after CAFA’s effective date.”). In a footnote,
the Eleventh Circuit nevertheless cited our opinion in Braud for the proposition that a
defendant added post-CAFA via amendment may re-commence the suit as to that defendant.
Id. at 1195 n.28.
        50 Id. at 1196.
        51 Id. at 1196-97.
        52 Id. at 1197.
        53 Id. (internal citations omitted).
        54 Id.

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was commenced after CAFA’s enactment date, Mobil Oil was permitted to
remove the mass action as a whole.
      Furthermore, it is immaterial to the removal inquiry that Mobil Oil was
not a defendant in Lester. CAFA’s removal provision, 28 U.S.C. § 1453, permits
removal of a class action, defined to include mass actions. 55 Mobil Oil is a
defendant to the Bottley-Lester mass action. We reject Plaintiffs’ assertion that
Mobil Oil lacked standing to remove Lester.
      The quandary in which Plaintiffs find themselves in is of their own
making. Plaintiffs were well aware that amending the Lester complaint to add
the Bottley claims asserted against Mobil Oil could trigger CAFA based on the
reasoning of Braud. In fact, the Lester plaintiffs sought leave to file a petition
adding seven new defendants, including Mobil Oil, in 2006. 56 The Lester action
was promptly removed by one of the potential new defendants but ultimately
remanded because the amendment had not yet been filed. 57 Now, Plaintiffs
seek to do by means of consolidation what Braud prohibits. But their theory
would permit groupings of 99 plaintiffs to seek out sufficiently similar pre-
CAFA suits, move for consolidation, and evade CAFA. Construing CAFA to
permit this procedural gamesmanship is at odds with CAFA’s intent to curb
abuses of the judicial system. 58
                                           IV
      As previously stated, the district court consolidated Lester and Bottley
when it denied Plaintiffs’ motion to remand. A district court is permitted to
order consolidation pursuant to Federal Rule of Civil Procedure 42(a) sua
sponte. 59 Rule 42(a) is “the proper solution to the problems created by the


      55 28 U.S.C. § 1453(a)-(b).
      56 Lester v. Exxon Mobil Corp., 2007 WL 1029507, at *1 (E.D. La. Mar. 29, 2007).
      57 Id. at *2.
      58 See CAFA, Pub. L. No. 105-2, § 2, 119 Stat. 4, 5 (2005).
      59 Miller v. U.S. Postal Serv., 729 F.2d 1033, 1036 (5th Cir. 1984).

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                                         No. 14-31383
existence of two or more cases involving the same parties and issues,
simultaneously pending in the same court.” 60
      Plaintiffs did not dispute the correctness of the district court’s
consolidation order. Plaintiffs claim they moved for state court consolidation
for the very reasons animating Rule 42(a), and the district court did not err in
consolidating the cases after removal.
                                     *        *         *

      The order of the district court is AFFIRMED.




      60   Id. (quoting Thomas v. Deason, 317 F. Supp. 1098, 1099 (W.D. Ky. 1970)).
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                                  No. 14-31383
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      In my view, CAFA’s non-retroactivity language prohibits counting the
Lester plaintiffs toward the 100-person threshold that Defendants must satisfy
in order to justify removal under CAFA’s “mass action” provision. I would
therefore reverse the district court’s order and remand both Lester and Bottley
to Louisiana state court.
      CAFA expanded federal diversity and removal jurisdiction to include
certain “mass actions,” which it defines as “any civil action . . . 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); see also Tanoh v. Dow Chem. Co., 561
F.3d 945, 952–53 (9th Cir. 2009). “CAFA, however, is not retroactive.” Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 571 (2005). Section 9 of
CAFA expressly provides that “[t]he amendments made by this Act shall apply
to any civil action commenced on or after the date of enactment of this Act,”
namely, February 18, 2005. Pub. L. No. 109-2, 119 Stat. 4, 14; Braud v. Transp.
Serv. Co., 445 F.3d 801, 803 (5th Cir. 2006).
      Reading these provisions together, it is clear that each of the “100 or
more persons” needed to satisfy CAFA’s “mass action” numerosity requirement
must be named as a plaintiff in a civil action commenced on or after February
18, 2005. See Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736,
742–44 (2014) (holding that “the ‘100 or more persons’ referred to in the statute
are . . . the very ‘plaintiffs’ referred to later in the sentence” and that the word
“plaintiffs” means “the actual named parties who bring an action”). Counting
persons named as plaintiffs in an action commenced before CAFA’s enactment
toward the 100-person threshold involves “applying” CAFA to that action;
doing so would thus directly contravene § 9, which unambiguously states that
CAFA’s provisions do not “apply” to such actions. See Apply, Black’s Law
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                                  No. 14-31383
Dictionary (10th ed. 2014) (defining “apply” as “[t]o put to use with a particular
subject matter,” such as in the phrase “apply the law to the facts”);
Apply, Merriam-Webster Dictionary            (online    ed.),        available      at
https://www.merriam-webster.com/dictionary/apply (defining “apply” as “to
put into operation or effect,” as in “apply a law”).
      The Lester plaintiffs commenced their action on December 20, 2002.
CAFA therefore does not “apply” to Lester, and the Lester plaintiffs cannot be
considered in determining whether Defendants have satisfied CAFA’s 100-
person numerosity requirement. The Bottley plaintiffs filed their suit on July
16, 2013, so CAFA “applies” to that action; however, there are only three
plaintiffs in Bottley. Consequently, even if the Bottley plaintiffs’ motion to
consolidate constituted a “joint trial proposal”—a question the court need not
reach here—that proposal did not encompass “monetary relief claims of 100 or
more persons” and thus did not create a “mass action” removable under CAFA.
      According to the majority, when the Bottley plaintiffs moved to
consolidate their suit with Lester, “Bottley became a mass action subject to
CAFA’s provisions, including the removal provisions.” The only way Bottley
could have become a “mass action,” however, is by counting the Lester
plaintiffs, which § 9 prohibits. The majority dismisses the notion “that a post-
CAFA mass action encompassing civil actions commenced both before and after
CAFA’s [enactment] cannot be removed.” But this statement assumes that a
civil action commenced before CAFA’s enactment and another commenced
after CAFA’s enactment can be combined to form a “mass action” in the first
place; as explained above, they cannot. This point highlights the
fundamentally circular nature of the majority’s reasoning: it begins by
assuming that CAFA’s “mass action” provision applies to civil actions that § 9
expressly says CAFA does not apply to, and then concludes that CAFA permits
the removal of any resulting “mass action,” even if removing one or more of the
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                                  No. 14-31383
component civil actions on their own would run afoul of § 9’s non-retroactivity
language.
      The Supreme Court has set forth a method for analyzing retroactivity
provisions that is both straightforward and avoids question-begging analysis:
“When a case implicates a federal statute enacted after the events in suit, the
court’s first task is to determine whether Congress has expressly prescribed
the statute’s proper reach.” Landgraf v. USI Film Prods., 511 U.S. 244, 280
(1994) (emphasis added). Where Congress has done so, the court must simply
follow the statute’s plain language. Id.; Kaiser Aluminum & Chem. Corp. v.
Bonjorno, 494 U.S. 827, 838 (1990); see also Hartford Underwriters Ins. Co. v.
Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (“[W]hen the statute’s
language is plain, the sole function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it according to its
terms.” (internal quotation marks omitted) (quoting United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989))). Here, § 9 plainly excludes Lester from
CAFA’s reach. The court should heed that directive.
      Neither Braud nor Lowery v. Alabama Power Co., 483 F.3d 1184 (11th
Cir. 2007), supports a contrary result. Braud held that the addition of a new
defendant to a civil action filed before CAFA’s enactment “commenced” a new
civil action as to that defendant. 445 F.3d at 804 (explaining that the issue
presented in Braud was “not whether CAFA should apply to suits ‘commenced’
before February 18, 2005, but whether the addition of a new defendant
‘commences’ a new suit”); see also Admiral Ins. Co. v. Abshire, 574 F.3d 267,
273 (5th Cir. 2009). Here, the Bottley plaintiffs’ motion to consolidate did not
seek to add any defendants to Lester or to Bottley. Accordingly, there is no merit
to the majority’s claim that the plaintiffs in this case sought “to do by means
of consolidation what Braud prohibits.”


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                                  No. 14-31383
      Like Braud, Lowery involved the post-CAFA addition of a new defendant
to a single action commenced prior to CAFA’s enactment. 483 F.3d at 1187–88.
Although the court ultimately remanded on other grounds, it concluded that
the addition of the new defendant permitted removal of the entire “action,” not
just the claims against the new defendant. Id. at 1195–97. Nothing in Lowery
suggests that a motion to consolidate an action filed after CAFA’s enactment
with a separate action filed prior to CAFA’s enactment permits removal of the
latter.
      The majority refers to “CAFA’s intent to curb abuses of the judicial
system,” but that is far too tenuous a basis for removal. CAFA is not a free-
floating warrant authorizing federal courts to exercise jurisdiction over
perceived instances of “procedural gamesmanship.” There must be a basis in
the statutory text itself to conclude that CAFA permits a federal court to
exercise removal jurisdiction over a given case. In this case, § 9 negates such a
conclusion. See Tanoh, 561 F.3d at 952–54 (“[W]e cannot sensibly entertain the
notion that Congress intended to allow courts to override the considered
legislative limitations on the ‘mass action’ concept.”). This is certainly not one
of those “‘rare cases in which the literal application of a statute will produce a
result demonstrably at odds with the intentions of its drafters.’” Ron Pair
Enters., 489 U.S. at 242 (brackets removed) (quoting Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 571 (1982)). Indeed, to the extent “procedural
gamesmanship” has occurred in this case, Defendants are arguably more
culpable: they have exploited the Bottley plaintiffs’ motion to consolidate in
order to haul the Lester and Bottley plaintiffs into federal court—despite
CAFA’s plain text and the absence of any supporting caselaw. As a result,
Lester, which was filed long before CAFA’s enactment and was on the eve of
trial when it was removed, remains unresolved more than fifteen years after it


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                                  No. 14-31383
was commenced. Cf. 119 Stat. at 5 (condemning “abuses” that “undermine[]
public respect for our judicial system”).
                                  *     *     *
      Allowing these actions to be removed to federal court contravenes the
plain meaning of CAFA’s non-retroactivity provision. I therefore respectfully
dissent.




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