              FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


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 TIVIS; LINDA
TODD; DELORES TOOHEY;               OPINION
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
2       ROMO V. TEVA PHARMACEUTICALS USA, INC.

 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

                    Filed September 24, 2013

    Before: Ronald M. Gould and Johnnie B. Rawlinson,
    Circuit Judges, and Ivan L.R. Lemelle, District Judge.*

                  Opinion by Judge Rawlinson;
                    Dissent by Judge Gould




 *
   The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
        ROMO V. TEVA PHARMACEUTICALS USA, INC.                         3

                           SUMMARY**


                   Class Action Fairness Act

    The panel affirmed the district court’s order remanding to
state court a case that was originally removed to federal court
under the Class Action Fairness Act’s mass action provision.

    The Class Action Fairness Act (“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)(11)(B)(i).
The panel held that a petition filed pursuant to California
Code of Civil Procedure 404, in which a group of attorneys
asked the California Judicial Council to establish a
coordinated proceeding for all California state actions
involving the pain reliever propoxyphene, was not a proposal
in substance for those actions to be tried jointly under CAFA.
The panel concluded, therefore, that this CAFA jurisdictional
requirement was not met under the totality of the
circumstances.

   Dissenting, Judge Gould would conclude that CAFA’s
mass action jurisdictional requirements were met.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4     ROMO V. TEVA PHARMACEUTICALS USA, INC.

                       COUNSEL

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

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

Jeremy B. Rosen and Mark A. Kressel, Horvitz & Levy LLP,
Encino, California, for Amici Curiae Chamber of Commerce
of the United States and PHRMA.

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

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

Richard A. Samp and Cory L. Andrews, Washington Legal
Foundation, Washington, D.C., for Amicus Curiae
Washington Legal Foundation.
       ROMO V. TEVA PHARMACEUTICALS USA, INC.               5

                         OPINION

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 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
6      ROMO V. TEVA PHARMACEUTICALS USA, INC.

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.

    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.
       ROMO V. TEVA PHARMACEUTICALS USA, INC.                7

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:

       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
8      ROMO V. TEVA PHARMACEUTICALS USA, INC.

Abrego Abrego v. The Dow Chemical Co., 443 F.3d at 676,
679 (9th Cir. 2006).

                               II

    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. § 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
        ROMO V. TEVA PHARMACEUTICALS USA, INC.                              9

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 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


 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.
10     ROMO V. TEVA PHARMACEUTICALS USA, INC.

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
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.
       ROMO V. TEVA PHARMACEUTICALS USA, INC.               11

     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 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).
12     ROMO V. TEVA PHARMACEUTICALS USA, INC.

     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 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).
        ROMO V. TEVA PHARMACEUTICALS USA, INC.                          13

     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

   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


  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.
14      ROMO V. TEVA PHARMACEUTICALS USA, INC.

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

    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).
         ROMO V. TEVA PHARMACEUTICALS USA, INC.                         15

GOULD, Circuit Judge, 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 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 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


  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.
16       ROMO V. TEVA PHARMACEUTICALS USA, INC.

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 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


     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).
        ROMO V. TEVA PHARMACEUTICALS USA, INC.                         17

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 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

  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.
18     ROMO V. TEVA PHARMACEUTICALS USA, INC.

proposal to try claims jointly when the petition seeks relief
that would require joint trial. The majority apparently would
require an explicit 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 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
       ROMO V. TEVA PHARMACEUTICALS USA, INC.                19

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 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.
20      ROMO V. TEVA PHARMACEUTICALS USA, INC.

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 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


  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.
         ROMO V. TEVA PHARMACEUTICALS USA, INC.                         21

proposal for anything short of a single massive trial for all
claimants would already fail the mass action 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 proposing a joint trial, and that
federal jurisdiction under the CAFA mass action provision is
proper.


     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.”
22      ROMO V. TEVA PHARMACEUTICALS USA, INC.

     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.
