Pfizer, Incorporated v. Lott, Ricky ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-8013
PFIZER, INC.,
Petitioner,
v.
RICKY LOTT, et al., individually and
on behalf of all others similarly situated,
Respondents.
____________
Petition for Leave to Appeal from the
United States District Court for
the Southern District of Illinois.
No. 05-cv-230-MJR—Michael J. Reagan, Judge.
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SUBMITTED JULY 14, 2005—DECIDED AUGUST 4, 2005
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Before BAUER, POSNER, and WOOD, Circuit Judges.
POSNER, Circuit Judge. Pfizer, sued in a class action in an
Illinois state court, removed the suit to federal district court,
which remanded it to the state court on the ground that
there was no federal jurisdiction. The suit charged Pfizer
with having overcharged for two drugs in violation of state
consumer-protection law. There was no federal claim, and
so the only possible basis of federal jurisdiction was diver-
2 No. 05-8013
sity of citizenship. The named plaintiffs stipulated that they
would not seek or even accept damages in excess of $75,000,
and while the stipulation would not bind the other members
of the class, Manguno v. Prudential Property & Casualty Ins.
Co., 276 F.3d 720, 724 (5th Cir. 2002), the likelihood that any
purchaser of either drug had damages in excess of $75,000
was sufficiently remote (In re Brand Name Prescription Drugs
Antitrust Litigation, 123 F.3d 599, 607 (7th Cir. 1997); see also
Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 410 (7th Cir.
2000)) to cast on Pfizer the burden of presenting some
evidence or argument to establish the plausibility of an
inference that at least one member of the class could cross
the $75,000 threshold, American Bankers Life Assurance Co. v.
Evans, 319 F.3d 907, 909 (7th Cir. 2003), which would
establish jurisdiction over the entire class. Exxon Mobil Corp.
v. Allapattah Service, Inc., 125 S. Ct. 2611 (2005).
But Pfizer had another string to its bow. The Class Action
Fairness Act of 2005, Pub. L. 109-2, 119 Stat. 4, provides that
the minimum amount in controversy is satisfied if the
aggregate stakes in a class action exceed $5 million, as it
plainly does in this case. The rub is that the suit was filed in
the state court the day before the Act was enacted, although
the complaint was served afterwards and the suit was
removed to the federal district court within the 30 days that
are permitted for removing from state court a suit that is
within the jurisdiction of the federal courts. 28 U.S.C.
§ 1446(b). The Class Action Fairness Act is applicable only
to suits “commenced on or after” the date of enactment, and
the district judge ruled that this meant the date on which
the suit was filed in the state court, not the date of removal.
Pfizer asks us to permit it to appeal from this determination.
Fed. R. App. P. 5, 27. Although remands to state court are
ordinarily nonappealable, the new Act makes an exception
for remands of suits removed under it. 28 U.S.C. § 1453(c).
No. 05-8013 3
We are tempted to deny the petition with just a citation to
Knudsen v. Liberty Mutual Ins. Co., 411 F.3d 805 (7th Cir.
2005), which holds (following Pritchett v. Office Depot, Inc.,
404 F.3d 1232 (10th Cir. 2005), the only other appellate case
to address the issue), that “commenced” indeed means
“filed” rather than “removed.” But as Pfizer points out,
there is a difference between the present case on the one
hand and Knudsen and Pritchett on the other. In Knudsen the
suit had been filed five years, and in Pritchett two years,
before removal. The ordinary deadline for removal is
30 days, as we said, though there is an exception for cases in
which removal doesn’t become possible until later, 28 U.S.C.
§ 1446(b); Benson v. SI Handling Systems, Inc., 188 F.3d 780,
782 (7th Cir. 1999), and the defendants pointed out that
removal first became possible when the Class Action
Fairness Act was passed. If that argument for removal
prevailed, then as we noted in Knudsen the Act would have
a dramatic retroactive effect. In contrast, removal here
occurred within the 30-day deadline.
Nevertheless we think Knudsen and Pritchett should gov-
ern this case as well. While it is true that the proceeding in
federal court was “commenced” by the filing of the removal
petition, that filing was not the beginning of the suit. For
what was removed was the suit that had been brought in
the Illinois state court, and under Illinois law the filing of
the complaint had “commenced” the suit. 735 ILCS 5/2-201;
Kohlhaas v. Morse, 183 N.E.2d 16, 19 (Ill. App. 1962). Nothing
changed except the forum. The principle is recognized in
decisions involving the transfer of cases that were filed in
the wrong forum initially; the transfer does not commence
a new suit for purposes of deciding whether the suit is
timely. E.g., Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir.
1999). Moreover, were Pfizer’s reading adopted, we would
have to rewrite the statute in order to create an exception for
4 No. 05-8013
cases such as Knudsen and Pritchett in which the removed
suit had been filed more than 30 days before removal. That
necessity suggests that Pfizer’s reading is incorrect. The
injustice of which it complains is not so great as to justify
radical judicial surgery on the statute.
This is not to belittle Pfizer’s indignation at the plaintiffs’
having beat the statute by one day, but their gamesmanship
actually hurts its argument. Pharmaceutical and other
companies that pressed for the enactment of the Class
Action Fairness Act were doubtless acutely aware, as the bill
that became the statute was wending its way through
Congress en route to enactment, that the prospect of its
enactment would spur the class action bar to accelerate the
filing of state-law class actions in state courts. Doubtless the
companies made their concerns known to Congress. The fact
that Congress did not respond by writing “removed” (or
“removed after the date of enactment but within 30 days of
the original filing”) instead of “commenced” is telling.
The petition to appeal is
DENIED.
No. 05-8013 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-4-05
6 No. 05-8013