                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 08-8011
VIRDA BELL BULLARD, et al.,
                                              Plaintiffs-Appellants,
                                 v.

BURLINGTON NORTHERN SANTA FE
RAILWAY COMPANY, et al.,
                                              Defendants-Appellees.
                         ____________
                Petition for Leave to Appeal from
              the United States District Court for the
           Northern District of Illinois, Eastern Division.
           No. 07 C 6883—Matthew F. Kennelly, Judge.
                         ____________
     SUBMITTED JULY 17, 2008—DECIDED AUGUST 1, 2008
                         ____________


 Before EASTERBROOK, Chief Judge, and ROVNER and
EVANS, Circuit Judges.
   EASTERBROOK, Chief Judge. A complaint identifying
144 plaintiffs sought damages from four corporations that
had designed, manufactured, transported, or used chemi-
cals that allegedly escaped from a wood-processing
plant and injured people living nearby. Defendants re-
moved the suit from the Circuit Court of Cook County,
Illinois, to the United States District Court for the
Northern District of Illinois. They relied on a provision of
the Class Action Fairness Act that creates federal juris-
2                                              No. 08-8011

diction over class litigation—including “mass actions” in
which plaintiffs propose a trial involving the claims of
100 or more litigants—if at least one plaintiff demands
$75,000, the stakes of the action as a whole exceed
$5 million, and minimal diversity of citizenship exists.
28 U.S.C. §1332(d)(11).
  Plaintiffs moved to remand. They acknowledge that
the amount-in-controversy and diversity-of-citizenship
requirements have been satisfied, but they deny that the
suit is a “mass action.” They insist that a complaint never
proposes a trial. According to plaintiffs, defendants may
remove a “mass action” only on the eve of trial, once a
final pretrial order or equivalent document identifies
the number of parties to the trial. The district judge
denied the motion for remand, and plaintiffs have asked
for leave to appeal under 28 U.S.C. §1453(c)(1).
  We grant this petition, because the legal issue is novel.
It has not been addressed in this or any other circuit.
The statute’s meaning should be settled, to avoid the
risk that lengthy and expensive efforts in one judicial
system or the other will be wasted. Because the district
court’s conclusion is the only sensible reading of
§1332(d)(11), we affirm summarily.
   The Class Action Fairness Act creates federal jurisdic-
tion over (and thus allows the removal of) multi-state
class actions with substantial stakes. Any statute gov-
erning class actions must define that term carefully, or
plaintiffs who want to litigate in state court will devise
close substitutes that escape the statute’s application.
Section 1332(d)(11)(A) defines “class action” to include
any “mass action”, which per §1332(d)(11)(B)(i) is a suit
“in which monetary relief claims of 100 or more persons
are proposed to be tried jointly on the ground that plain-
tiffs’ claims involve common questions of law or fact”.
No. 08-8011                                                   3

   Plaintiffs’ lawyers, who want to avoid federal court,
have designed a class-action substitute. Their complaint
alleges that several questions of law and fact are com-
mon to all 144 plaintiffs; it provides no more information
about each individual plaintiff than an avowed class
complaint would do. No one supposes that all 144 plain-
tiffs will be active; a few of them will take the lead, just as
in a class action, and as a practical matter counsel will
dominate, just as in a class action. Nonetheless, plaintiffs
say, they are entitled to litigate in state court because
the Class Action Fairness Act has a loophole. Section
1332(d)(11)(B)(i) refers to “claims of 100 or more
persons . . . proposed to be tried jointly”. Complaints do
not propose trials, plaintiffs insist; they’d be happy to
win by summary judgment or settlement. Plaintiffs con-
trast §1332(d)(11)(B)(i) with §1332(d)(1)(B), which says
that a “class action” is a suit that is “filed” as a representa-
tive proceeding under Fed. R. Civ. P. 23 or an equivalent
rule of state law. A proposal to hold a large trial comes
after the complaint, so it cannot meet the filing require-
ment of §1332(d)(1)(B), plaintiffs conclude.
  If this is right, however, then §1332(d)(11) is defunct,
because it defines a class action to include a mass action. By
plaintiffs’ lights, no “mass action” could ever be a “class
action”, for a suit cannot be identified as a “mass action”
until close to trial, while a suit is a “class action” or not,
under §1332(d)(1)(B), on the date of filing. Courts do not
read statutes to make entire subsections vanish into the
night.
  An alternative reading of §1332(d), which gives force
to both §1332(d)(1)(B) and §1332(d)(11), is that litigation
counts as a class action if it is either filed as a representa-
tive suit or becomes a “mass action” at any time. That
4                                               No. 08-8011

could be long after filing. Think of 15 suits, with (say)
10 plaintiffs each, that are proposed to be tried jointly.
The prospect of a single trial with 150 plaintiffs would
convert all 15 suits into one “mass action” under
§1332(d)(11)(B) and allow removal within 30 days after
the proposal for a joint trial. (Section 1446(b) ¶2 allows
removal within 30 days of any event that brings a previ-
ously non-removable suit within federal jurisdiction.) The
prospect of this situation is why §1332(d)(11) allows the
definition to be applied after the suits’ filing date. But
nothing in §1332(d)(11) says that the eve of trial is the
only time when a “mass action” can be detected.
   The district court concluded that one complaint implicitly
proposes one trial. Illinois, where this complaint was
filed, allows the joinder of multiple plaintiffs in a
single suit only where the claims arise out of “the same
transaction or series of transactions” and “common ques-
tions of law or fact” are present. 735 ILCS §5/2-404. That’s
exactly when a single trial is appropriate. (A state
whose rules allowed the joinder of unrelated parties and
claims could pose a different question about the applica-
tion of §1332(d)(11).) It does not matter whether a trial
covering 100 or more plaintiffs actually ensues; the statu-
tory question is whether one has been proposed. This
complaint, which describes circumstances common to
all plaintiffs, proposes one proceeding and thus one trial.
  In a filing after removal, plaintiffs said that they might
be satisfied with a trial covering fewer than all 144 of
their number. They call this a “stipulation,” which it isn’t.
A stipulation is an agreement of the parties, but all we
have here is a unilateral description of one side’s position.
And we doubt that anything filed after a notice of removal
can affect federal jurisdiction. See St. Paul Mercury Indem-
No. 08-8011                                                5

nity Co. v. Red Cab Co., 303 U.S. 283, 289–90 (1938); In re
Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992). But no
matter.
  A proposal to hold multiple trials in a single suit (say,
72 plaintiffs at a time, or just one trial with 10 plaintiffs
and the use of preclusion to cover everyone else) does not
take the suit outside §1332(d)(11). Recall the language
of §1332(d)(11)(B)(i): any “civil action . . . in which mone-
tary relief claims of 100 or more persons are proposed to
be tried jointly” is treated as a “class action” (emphasis
added). The question is not whether 100 or more plaintiffs
answer a roll call in court, but whether the “claims”
advanced by 100 or more persons are proposed to be tried
jointly. A trial of 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,
and §1332(d) thus brings the suit within federal juris-
diction.
                                                  AFFIRMED




                    USCA-02-C-0072—8-1-08
