                                                            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 States District Court
                       for the Central District of California
                   Philip S. Gutierrez, District Judge, Presiding

                      Argued and Submitted August 30, 2013
                              Pasadena, California

Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.*

                            Opinion by Judge Rawlinson

RAWLINSON, Circuit Judge:

       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


       *
             The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.

                                         2                                  13-56310
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). 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 propoxyphene, an ingredient found in the Darvocet and Darvon pain

medications, as well as in their generic brand counterparts. There are additional

propoxyphene cases pending in multidistrict litigation in the Eastern District of

Kentucky. See In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 780 F.

Supp. 2d 1379 (E.D. Ky. 2011).

      Propoxyphene is a pain reliever that was used in the United States to treat

mild to moderate pain from 1957 through November, 2010, when drugs containing

propoxyphene were taken off the market because of the Food & Drug

Administration’s safety concerns. Teva held the rights to the generic formulary of

Darvocet and Darvon, and Plaintiffs allege that Teva was involved in all aspects of

the creation, distribution, and sale of generic propoxyphene products.


                                           3                                      13-56310
      To date, more than forty actions have been filed in California state courts

regarding products containing propoxyphene. On October 23, 2012, a group of

attorneys responsible for many of the propoxyphene actions filed a petition asking

the California Judicial Council to establish a coordinated proceeding for all

California propoxyphene actions pursuant to California Code of Civil Procedure

section 404. Section 404.1 provides:

             Coordination of civil actions sharing a common question
             of fact or law is appropriate if one judge hearing all of
             the actions for all purposes in a selected site or sites will
             promote the ends of justice taking into account whether
             the common question of fact or law is predominating and
             significant to the litigation; the convenience of parties,
             witnesses, and counsel; the relative development of the
             actions and the work product of counsel; the efficient
             utilization of judicial facilities and manpower; the
             calendar of the courts; the disadvantages of duplicative
             and inconsistent rulings, orders, or judgments; and, the
             likelihood of settlement of the actions without further
             litigation should coordination be denied.

After Plaintiffs’ petition for coordination was filed, Teva removed the case to

federal district court under CAFA’s mass action provision.

      CAFA provides federal district courts with original jurisdiction over “mass

actions” if the actions meet all of the statutory requirements. CAFA defines a mass

action as:




                                           4                                    13-56310
              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) (emphasis added). The only disputed issue in this

case is whether Plaintiffs’ petition for coordination constitutes a proposal to be

tried jointly under CAFA.

      The district court found that there was no federal jurisdiction under CAFA

because Plaintiffs’ petition for coordination did not constitute a proposal to try the

cases jointly, and remanded the case back to state court. The district court

distinguished this case from the Seventh Circuit’s decision in In re Abbott

Laboratories, Inc., 698 F.3d 568 (7th Cir. 2012), explaining that Plaintiffs’ petition

for coordination differed from the Plaintiffs’ consolidation request in Abbott

because Plaintiffs’ petition focused on pretrial matters while the Plaintiffs’

consolidation request in Abbott specifically sought consolidation “through trial.”

      Defendants sought permission to appeal the district court’s remand order,

which we granted on July 26, 2013. We review the district court’s remand order

de novo. See Abrego Abrego v. The Dow Chemical Co., 443 F.3d at 676, 679 (9th

Cir. 2006).

                                           II



                                           5                                     13-56310
      The statutory issue for us to decide is whether the petition seeking

coordination of the California propoxyphene actions was a proposal in substance

for those actions to be tried jointly. This is a question of first impression in our

circuit, as it was for the Seventh Circuit in Abbott.

      We start from the well-established premise that the removal statutes are to be

strictly construed. See Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir.

2013). A corollary precept is that we apply a presumption against removal and

construe any uncertainty as to removability in favor of remand. See id.; see also

Tanoh v. Dow Chemical Corp., 561 F.3d 945, 953 (9th Cir. 2009); Abrego Abrego

443 F.3d at 685. We have correctly observed that CAFA’s mass action provision

is “fairly narrow,” Tanoh, 561 F.3d at 953, given that a qualifying mass action will

only be present if there is an aggregate amount in controversy of five million

dollars or more, at least one plaintiff who is a citizen of a state or foreign state

different from that of any defendant, and “monetary relief claims of 100 or more

persons [that] are proposed to be tried jointly.” Id.; see also 28 U.S.C. § 1332(d).

We expressly observed in Tanoh that CAFA “includ[es] only actions in which the

trial itself would address the claims of at least one hundred plaintiffs” and excludes

“any civil action in which . . . (IV) the claims have been consolidated or

coordinated solely for pretrial proceedings.” 561 F.3d at 954; 28 U.S.C. §


                                            6                                      13-56310
1332(d)(11)(B)(ii)(IV). And Tanoh makes clear, consistent with the plain

language of CAFA, that the proposal to try claims jointly must come from the

plaintiffs. 561 F.3d at 953-54. Further, if the statutory requirements under CAFA

are not met, Tanoh rejects the idea that we can avoid these statutory terms merely

by recourse to general statements in CAFA’s legislative history, or to the theory

that plaintiffs should not be able to “game” jurisdictional statutes to remain in state

court. Id. at 954.

      Tanoh also instructs that plaintiffs are the “masters of their complaint,” and

do not propose a joint trial simply by structuring their complaints so as to avoid the

one hundred-plaintiff threshold. 561 F.3d at 953, 956; see also Anderson v. Bayer

Corp., 610 F.3d 390, 393 (7th Cir. 2010); Scimone, 720 F.3d at 883-84. Under this




                                           7                                     13-56310
view, plaintiffs can structure actions in cases involving more than one hundred

potential claimants so as to avoid federal jurisdiction under CAFA.1

      Plaintiffs argue, and the district court agreed, that their analogous petition

for coordination was not a proposal to try the cases jointly. We also agree.

California Code of Civil Procedure section 404 allows the coordination of “all of

the actions for all purposes.” However, the plaintiffs’ petition for coordination

stopped far short of proposing a joint trial. This fact is important because, as

discussed, both the Supreme Court and our court recognize that the plaintiff is, and

should be, in control of selection of the litigation forum. See Standard Fire Ins.

Co. v. Knowles, 133 S. Ct. 1345, 1350 (2013) (reiterating in the CAFA context,

that plaintiffs are the “masters of their complaints”); see also Tanoh, 561 F.3d at




      1
        Amicus curiae Chamber of Commerce of the U.S.A. and amicus curiae
PhRMA essentially argue that we should revisit Tanoh and that it has lost its
precedential value, urging that plaintiffs should not be able to structure their
complaints to avoid federal jurisdiction in light of the purposes of CAFA to curb
class action and mass action abuses that have occurred in state courts. We reject
this argument because we agree with the reasoning of Tanoh, because as a three-
judge panel we do not have authority to overrule a prior circuit precedent, and
because the Chamber of Commerce’s position would put us at odds with the
Seventh Circuit, which cited Tanoh approvingly in Abbott, and the Eleventh
Circuit, which did so in Scimone. See Abbott, 698 F.3d at 572; Scimone, 720 F.3d
at 884.


                                           8                                       13-56310
953 (referencing “the well-established rule that plaintiffs as masters of their

complaint, may choose their forum by selecting state over federal court . . .”).

       Plaintiffs asked for coordination under section 404, and submitted a

Memorandum of Points and Authorities in support of the petition for coordination.

We now turn to that memorandum to discern whether plaintiffs proposed that the

claims of 100 or more persons were “to be tried jointly.” 28 U.S.C. §

1332(d)(11)(B)(i).

      On page 6 of the Memorandum of Points and Authorities, plaintiffs gave the

following explanation for seeking coordination:

             Petitioners’ counsel anticipates that the actions will . . .
             involve duplicative requests for the same defendant
             witness depositions and the same documents related to
             development, manufacturing, testing, marketing, and sale
             of the Darvocet Product. Absent coordination of these
             actions by a single judge, there is a significant likelihood
             of duplicative discovery, waste of judicial resources and
             possible inconsistent judicial rulings on legal issues.

      One would be hard pressed to parse a proposal for a joint trial from this

language. Rather, the obvious focus was on pretrial proceedings, i.e., discovery

matters.

      On page 7 of the memorandum, plaintiffs informed the court that

coordination was also sought because “[u]se of committees and standardized



                                           9                                      13-56310
discovery in a coordinated setting will expedite resolutions of these cases, avoid

inconsistent results, and assist in alleviating onerous burdens on the courts as well

as the parties.” Again, we see emphasis on pretrial proceedings with no mention of

a joint trial.

       On page 8, the plaintiffs urged coordination on the following bases:

                 One judge hearing all of the actions for all purposes in a
                 selected site or sites will promote the ends of justice;
                 Common questions of fact or law are predominating and
                 significant to the litigation; Coordination may serve the
                 convenience of parties, witnesses and counsel the relative
                 development of the actions and the work product of
                 counsel; Coordination may facilitate the efficient
                 utilization of judicial facilities and manpower;
                 Coordination may enhance the orderly calendar of the
                 courts; Without coordination, the parties may suffer from
                 disadvantages caused by duplicative and inconsistent
                 rulings, orders or judgments . . .

(Emphases added).

       Isolation of the phrases “for all purposes,” “inconsistent judgments,”and

“conflicting determinations of liability” to support a conclusion that the plaintiffs

sought a joint trial completely ignores all references to discovery, including on the

same page containing the reference to liability, where Plaintiffs stated: “[I]n light

of the similarity of the actions, there will be duplicate discovery obligations upon

the common defendants unless coordination is ordered. Coordination before



                                             10                                  13-56310
initiation of discovery in any of the cases will eliminate waste of resources and will

facilitate economy. . . .” (Emphases added). As we read the plaintiffs’ petition for

coordination, it is quite a stretch to discern a request for joint trial when the clear

focus of the petition is on pretrial matters. Reliance on nine words in the petition

to the exclusion of all else is inconsistent with the principle that any doubt about

federal jurisdiction be resolved in favor of remand. See Scimone, 720 F.3d at 882;

see also Abrego Abrego, 443 F.3d at 685. In particular, Defendants’ reliance on

the plaintiffs’ reference to inconsistent judgments is on shaky ground because

judgments may be rendered outside the confines of a trial. Default judgments and

summary judgments come readily to mind. See Federal Rules of Civil Procedure

55 and 56 (providing for entry of judgment prior to trial).

      Neither are we persuaded that we should reach the same result as the

Seventh Circuit in Abbott. Not only did that case involve a completely different

procedure, consolidation as opposed to coordination, see 698 F.3d at 570, the

plaintiffs’ request in that case explicitly and expressly referenced “consolidation of

the cases through trial and not solely for pretrial proceedings,” thereby removing

any question of the plaintiffs’ intent. Id. at 571 (footnote reference and internal

quotation marks omitted).




                                            11                                     13-56310
      This case also differs from Mississippi ex rel. v. AU Optronics, 701 F.3d 796

(5th Cir. 2012), where the Fifth Circuit concluded that federal jurisdiction existed

under CAFA when the State of Mississippi brought an action under the Mississippi

Consumer Protection Act and the Mississippi Antitrust Act against defendants who

manufactured liquid crystal display panels and harmed consumers by charging

artificially inflated prices. See id. at 798-800. The Fifth Circuit concluded that the

real parties in interest included the State and the individual consumers who

purchased the products. See id. at 802. Because there were more than one hundred

consumer claims at issue in the single lawsuit filed by the State, the Fifth Circuit

held that CAFA conferred jurisdiction upon the federal court over the “mass

action.” Id.

      Unlike the AU Optronics case, the plaintiffs here have filed separate

lawsuits, none of which have been initiated by the State, so the rationale articulated

by the Fifth Circuit is inapposite, even were we inclined to adopt it.2



      2
        Amicus curiae Washington Legal Foundation argues that “joint trial”
includes cases resolved in conjunction with each other, relying on the dictionary
definition of “joint” and the statute’s plain language. We agree that “joint trial”
does not mean everyone sitting in the courtroom at the same time. However, as
made obvious in this opinion, we disagree that mere invocation of the California
coordination provision is sufficient to constitute a proposal for joint trial. Rather,
as we have done here, we look to Plaintiffs’ petition and supporting documents to
determine the extent of Plaintiffs’ request for coordination.

                                           12                                    13-56310
      Finally, we consider the rulings of three different district court judges in this

circuit who have determined that similar requests for coordination under this

California procedural rule were not the equivalent of a request for a joint trial. See

Gutowski v. McKesson Corp., No. C 12-6056 CW, 2013 WL 675540 (N.D. Cal.

Feb. 25, 2013); Posey v. McKesson Corp., No. C 12-05939 RS, 2013 WL 361168

(N.D. Cal. Jan. 29, 2013); Rice v. McKesson Corp., No. C 12-05949 WHA, 2013

WL 97738 (N.D. Cal. Jan. 7, 2013). These eminent California judges were

practitioners in California prior to taking the bench and their decisions, with their

considerable knowledge of California procedural rules, reinforce our view of the

appropriate disposition of this case. We would affirm this fourth California district

court judge’s decision to remand this case to state court.

                                         III




                                          13                                     13-56310
      Because we conclude that Plaintiffs’ petition for coordination was not a

proposal to try the cases jointly, we AFFIRM the district court’s order granting

Plaintiffs’ motion to remand.3




      3
             We recognize that we have discretion to consider alternative bases for
the exercise of federal jurisdiction, see Nevada v. Bank of America Corporation,
672 F.3d 661, 673 (9th Cir. 2012). We agree with the district court that there is a
lack of federal question jurisdiction because Plaintiffs’ state law claims do not
“aris[e] under the Constitution, laws, or treaties of the United States. Merrell Dow
Pharms., Inc. v. Thompson, 478 U.S. 804, 805, 817 (1986).

      We also agree with the district court’s conclusion that complete diversity is
lacking between the parties inasmuch as plaintiff Romo and defendant McKesson
are both California citizens. See Wisc. Dep’t of Corr. v. Schacht, 524 U.S. 381,
388 (1998) (requiring complete diversity of citizenship for federal jurisdiction).


                                         14                                   13-56310
                                 Counsel Listing

Karin Bohmholdt (argued), Ginger Pigott, Amy Alderfer, Greenberg Traurig, LLP,
Los Angeles, California; Lori G. Cohen, Victoria D. Lockard, Greenberg Traurig,
LLP, Atlanta, Georgia; Elliot H. Scherker, Greenberg Traurig, PA, Miami, Florida,
for Defendant-Appellants.

Stuart B. Esner (argued), Esner, Chang & Boyer, Pasadena, California; Elise R.
Sanguinetti, Khorrami Boucher Sumner, Oakland, California; J. Paul Sizemore,
The Sizemore Law Firm, El Segundo, California; Matthew J. Sill, The Sill Law
Group PLLC, Edmond, Oklahoma, for Plaintiffs-Appellee.

Kate Comerford Todd, Tyler R. Green, National Chamber Litigation Center, Inc.,
Washington, D.C., for Amicus Curiae Chamber of Commerce of the United States.

James M. Spears, Melissa B. Kimmel, PHRMA, Washington, D.C., Attorneys for
Amicus Curiae PHRMA.




                                        15                                 13-56310
                                                                               FILED
Romo v. Teva-Pharmaceuticals, 13-56310                                         SEP 24 2013

                                                                            MOLLY C. DWYER, CLERK
GOULD, Circuit Judge, dissenting:                                            U.S. COURT OF APPEALS




         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 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)(11). 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

         1
         In the petition Plaintiffs asked for coordination of their lawsuits for reasons
including concerns that there could be potential “duplicate and inconsistent rulings,
orders, or judgments,” and that without coordination, “two or more separate courts
. . . may render different rulings on liability and other issues.” After this petition
for coordination was filed, Teva removed the case to federal district court under
CAFA’s mass action provision.
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 against removal.2 Luther v. Countrywide Home

Loans Servicing LP, 533 F.3d 1031, 1034 (9th Cir. 2008). As such, I turn to the

language and purpose of CAFA. The statutory issue for us is whether the petition

that was filed in this case seeking coordination of the California propoxyphene

actions was a proposal in substance for those actions to be tried jointly. I regret

that the majority here misinterprets CAFA and does so in a way that creates a

circuit split, for practical purposes, with the Seventh Circuit’s decision in Abbott.

      Congress enacted CAFA in 2005 to “curb perceived abuses of the class

action device which, in the view of CAFA’s proponents, had often been used to

litigate multi-state or even national class actions in state courts.” Tanoh v. Dow

Chemical Co., 561 F.3d 945, 952 (9th Cir. 2009) (citation omitted). CAFA further

extends federal jurisdiction over “mass action” cases when several requirements




      2
          The Seventh Circuit has held that CAFA “must be implemented according
to its terms, rather than in a manner that disfavors removal of large-stakes, multi-
state class actions,” and I agree. Back Doctors Ltd. v. Metro. Prop. & Cas. Ins.
Co., 637 F.3d 827, 830 (7th Cir. 2011).

                                           2
are met, although only the “proposed to be tried jointly” requirement is at issue

here. See 28 U.S.C. § 1332(d)(2), (6), (11)(A).

       Proposals for joint trials may be made implicitly, and a “joint trial” may

“take different forms as long as the plaintiffs’ claims are being determined jointly.”

Abbott, 698 F.3d at 573; see Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d

759, 762 (7th Cir. 2008). For example, an “exemplary” or “bellwether” trial may

only feature a small group of plaintiffs, but it is still a joint trial when the claims or

issues of a larger group are precluded or otherwise decided by the results. See

Koral v. Boeing, Co., 628 F. 3d 945, 947 (7th Cir. 2011). We should be looking at

the reality of joint trial proposal, not at how a party may characterize its own

actions.

       What is critical is that this appeal concerns a set of actions filed in state court

followed by a petition by Plaintiffs to coordinate, in part to avoid inconsistent




                                             3
judgments. And so it is on that aspect of this case, distinguishing it from Tanoh,

that we should be focused.3

      My disagreement with the majority is over the import of the coordination

motion and the reasons given for it. The majority focuses on the part of the

petition mentioning pretrial discovery and chooses to downplay that part of the

petition urging that there be no inconsistent judgments. In doing this, the majority

disregards that the proviso in CAFA makes clear only that matters consolidated

exclusively for pretrial purposes are not properly removed to federal court. The

majority does not try even to argue, nor could it do so correctly here, that the

petition for coordination is limited to pretrial matters. Instead, it argues that the

petition “stopped far short of proposing a joint trial.” But there is no applicable

judicial precedent supporting the majority’s proposition that the focus of a

coordination petition mentioning pretrial matters in large part may override the

reality of a plaintiff’s proposal to try claims jointly when the petition seeks relief

that would require joint trial. The majority apparently would require an explicit

      3
         The amicus curiae Chamber of Commerce of the U.S.A. and amicus curiae
PhRMA want us to revisit Tanoh, to say that it has no vitality and that plaintiffs
cannot structure their complaints to avoid federal jurisdiction in light of the
purposes of CAFA to curb class action and mass action abuses that have occurred
in state courts. Although this argument by the Chamber of Commerce has some
weight, I agree with the majority that this argument misunderstands the power of a
three-judge panel, which may not overrule a prior circuit precedent.

                                            4
request for a joint trial, whereas I conclude that the substance of what was done is

controlling. Recourse to the general principle that doubts on removal should be

resolved by favoring the plaintiffs’ forum choice simply does not answer that this

case fits CAFA removal like a glove under a reasonable assessment of what is a

proposal for joint trial.

       Our Ninth Circuit precedent in Tanoh suggests that plaintiffs are the

“masters of their complaint,” and do not propose a joint trial simply by structuring

their complaints so as to avoid the one hundred-plaintiff threshold. 561 F.3d at

953, 956; see Anderson v. Bayer, 610 F.3d 390, 393 (7th Cir. 2008); Scimone v.

Carnival Corp., 720 F.3d 876 (11th Cir. 2013). That is not surprising and is

analogous to the fact that individuals and corporations can structure transactions so

as to avoid statutory prohibitions or terms.

       But the United States Supreme Court has recently pointed out that there are

limits to how far plaintiffs may go in structuring their complaints to avoid federal

jurisdiction. Thus in Standard Fire v. Knowles, the Supreme Court rejected the

ability of a proposed class action plaintiff to stipulate that damages would not

exceed five million dollars. 568 U.S. —, 133 S. Ct. 1345, 1350, 185 L. Ed. 2d 439

(2013) (“[T]he stipulation at issue here can tie Knowles’ hands, but it does not

resolve the amount-in-controversy question in light of his inability to bind the rest


                                           5
of the class.”). In that case, the plaintiff unsuccessfully attempted to stipulate an

amount-in-controversy below five million dollars before his proposed class had

been certified. Id. at 1347. Standard Fire arose in the context of a challenge to

plaintiffs’ counsel’s attempt to limit damages before class certification, and the

Court recognized that plaintiffs’ counsel could not execute a damages stipulation

binding class claimants not yet joined. So Standard Fire is in my view not

necessarily controlling on the issue before us as to whether there has been a

proposal for joint trial. Because in Standard Fire the Supreme Court appeared to

reiterate that plaintiffs are the “masters of their complaint,” id. at 1350, if Plaintiffs

merely had structured separate actions with less than one hundred claimants, and

did not seek to coordinate them, I must currently think that the Supreme Court

would hold, as we did in Tanoh, that no mass action was presented. If plaintiffs

are masters of their complaints and can plead in a way to avoid federal jurisdiction,

they remain free to “game” the system to some degree, including by joining less

than one hundred plaintiffs in many suits in state court, so long as those cases are

separate. Nonetheless, we have in this case a request to California courts to

coordinate the actions and reasons given for coordination, including to avoid

inconsistent judgments. That leads me to recognize that the issue here, stated more

precisely, is whether when plaintiffs seek to coordinate under California law many


                                             6
state actions, and urge the state court that coordination is necessary to avoid

inconsistent judgments, that is a proposal for joint trial within the meaning of

CAFA.

      Plaintiffs argue, and the majority agrees, that their petition for coordination

was not a proposal to try the cases jointly. I must respectfully disagree. California

Code of Civil Procedure section 404 allows the coordination of “all of the actions

for all purposes,” and presents a factor-based test to determine whether

coordination is appropriate. Plaintiffs asked for coordination under section 404,

and submitted a memorandum in support of the petition for coordination. Reasons

Plaintiffs listed as supportive of their petition, including the danger of inconsistent

judgments and conflicting determinations of liability, in my view could only be

addressed through some form of joint trial. When Plaintiffs asked the California

Judicial Council to coordinate their cases for reasons that only a joint trial could




                                           7
address, they implicitly proposed a joint trial, bringing their cases within CAFA’s

mass action provision.4 That is how I see it and that is what impels my dissent.

      Plaintiffs further contend that we should interpret the phrase “joint trial” to

mean “a joint trial where more than one party (and for purposes of CAFA 100 or

more parties) simultaneously present their claims to a trier of fact.” I would reject

this interpretation because it violates the canon against reading a statutory

provision in such a way as to render another provision superfluous. See Bilski v.

Kappos, 130 S. Ct. 3218, 3228, 177 L. Ed. 2d 792 (2010) (citation omitted). If our

court were to adopt Plaintiffs’ interpretation of “joint trial,” the mass action

statutory exception for “claims [that] have been consolidated or coordinated solely

for pretrial proceedings” would be meaningless because a proposal for anything

short of a single massive trial for all claimants would already fail the mass action




      4
         Amicus curiae Washington Legal Foundation argues that “joint trial”
includes cases resolved in conjunction with each other, relying on the dictionary
definition of “joint” and the statute’s plain language. This argument has some
weight, and with the majority I would say that “joint trial” does not mean everyone
sitting in the courtroom at the same time. Washington Legal Foundation also
asserts that whenever the California coordination provision is invoked, that in itself
will be enough to constitute a proposal for joint trial. I would not need to go so far
to resolve this case because I rely in part on Plaintiffs’ petition’s explanation that
there was concern to avoid inconsistent judgments, and because this case does not
factually present as one where only coordination of pretrial matters was requested.

                                           8
requirement. 28 U.S.C. § 1332(d)(11)(B)(ii).5 I would reject Plaintiffs’ narrow

interpretation of “joint trial” to give meaning to the exception above.

      Although Plaintiffs argue that the Seventh Circuit decision in Abbott is

inapplicable here, and the majority accepts this argument, I would conclude that

Abbott is both persuasive and relevant to this case. Abbott addresses a

consolidation request “through trial” under Illinois Supreme Court Rule 384.6

Plaintiffs correctly note that the Illinois rule differs from the language of California

Code of Civil Procedure section 404, but still I would conclude that the Seventh

Circuit’s reasoning is persuasive here. Similar to the Seventh Circuit in Abbott, we

are examining a request for coordination or consolidation that lists certain goals

that could only be accomplished through a joint trial. See Abbott, 698 F.3d at 573.

As the Seventh Circuit did, we should have concluded that Plaintiffs were




      5
        I agree with Chief Judge Easterbrook of the Seventh Circuit that “[c]ourts
do not read statutes to make entire subsections vanish into the night.” Bullard v.
Burlington N. Santa Fe Ry. Co., 535 F.3d 759, 762 (7th Cir. 2008).
      6
         Illinois Supreme Court Rule 384(a) says: “When civil actions involving
one or more common questions of fact or law are pending in different judicial
circuits, and the supreme court determines that consolidation would serve the
convenience of the parties and witnesses and would promote the just and efficient
conduct of such actions. The supreme court may . . . transfer all such actions to one
judicial circuit for consolidated pretrial, trial, or post-trial proceedings.”

                                           9
proposing a joint trial, and that federal jurisdiction under the CAFA mass action

provision is proper.

      In light of the specific reasons given for coordination of the California

actions that involve propoxyphene, it is a natural and probable consequence of the

grant of the petition seeking coordination, indeed it seems an inevitable result, that

these varied actions must be tried together, or coordinated in a way to avoid

inconsistent results as with bellwether trials, which amounts to the same thing. If

the natural and probable consequence of coordination of separate actions has an

impact indistinguishable from joint trial, then it is sensible to treat such a petition

for coordination as a proposal for joint trial. I conclude that the circumstances

presented here are a proposal for a joint trial within the meaning of what Congress

said and intended in CAFA, and for that reason would reverse the district court’s

order granting Plaintiffs’ motion to remand.7




      7
         In light of what I would decide, I would not need to reach Defendants’
alternative arguments that federal subject-matter jurisdiction exists on other
grounds.

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