Margalit Corber v. Xanodyne Pharmaceuticals, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGALIT CORBER; RENE CARO; No. 13-56306
STEVE DANTZLER; LINDA SOWARDS;
LORI HUISMAN; JOHNNY GEORGE, D.C. No.
SR.; TERRY PERRY; WILLIAM 2:12-cv-09986-
RACKLEY; ANGELA YOUNG; PAMELA PSG-E
RODRIGUEZ; STEVEN SYVERSON;
OLGA CAICOYA; JANET CARROLL;
ROSE CASH; ULAD CELENTANO;
VIRGINIA COSTANZO; KIMBERLY
FILLIGIM; ARMELDIA SMITH; CARLA
WEST; JOANNE BIERZYNSKI,
individually and as next of kin to
Eleanor Wojcik; SHARLEY MORRIS;
WYOMIA TIMMONS; DEAN
REINKING; DANIEL THORNE;
WENDELEN ASHBY; CARMEN
BEDFORD; CLAUDE COMMODORE;
JAMES HENSON; NANCY LOCKE;
MILDRED SCOTT; BILLIE BURNETT;
SHEENA HALL; BRENDA ROBERGE,
individually and as next of kin to
Ernest Roberge; DEBORAH
WOODSUM; RICHARD PASCUITO,
Plaintiffs-Appellees,
v.
XANODYNE PHARMACEUTICALS,
INC.,
Defendant-Appellant.
2 CORBER V. XANODYNE PHARMACEUTICALS
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; DEBRA OPINION
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.
CORBER V. XANODYNE PHARMACEUTICALS 3
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 En Banc
June 19, 2014—Seattle, Washington
Filed November 18, 2014
Before: Alex Kozinski, Chief Judge, and Barry G.
Silverman, Susan P. Graber, Ronald M. Gould, Marsha S.
Berzon, Richard C. Tallman, Johnnie B. Rawlinson,
Richard R. Clifton, Mary H. Murguia, Morgan Christen,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Gould;
Dissent by Judge Rawlinson
4 CORBER V. XANODYNE PHARMACEUTICALS
SUMMARY*
Class Action Fairness Act
The en banc court reversed the district court’s orders
granting motions to remand to state court based on the en
banc court’s conclusion that all of the Class Action Fairness
Act requirements for a removable mass action were met
under the totality of the circumstances.
The Class Action Fairness Act (“CAFA”) extends federal
removal jurisdiction for certain class actions and for mass
actions 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 laws of law or fact.” 28
U.S.C. § 1332(d)(11)(B)(i).
These cases were two of twenty-six pending before the
district court alleging injuries related to the ingestion of
proxoxyphene, an ingredient found in pain reliever drugs.
The plaintiffs moved for coordination in the state trial court
pursuant to California Code of Civil Procedure section 404.
The en banc court held that plaintiffs’ petitions to
coordinate actions under Section 404 constituted proposals
for these actions to be tried jointly, making the actions a
“mass action” subject to removal and federal jurisdiction
under CAFA.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CORBER V. XANODYNE PHARMACEUTICALS 5
Judge Rawlinson, joined by Judge Berzon, dissented
because she would not conclude that the plaintiffs implicitly
requested a joint trial, and she would not find that the cases
fit within the parameters for removal under CAFA.
COUNSEL
Jay Lefkowitz (argued), Daniel A. Bress, and Danielle R.
Sassoon, Kirkland & Ellis LLP, New York, New York;
Ginger Pigott, Amy B. Alderfer, and Karin L. Bohmholdt,
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-Appellant Teva
Pharmaceuticals, USA, Inc.
Karin Bohmholdt (argued), Greenberg & Traurig LLP, Los
Angeles, California; Karen Woodward, Hall R. Marston, and
Christopher P. Norton, Sedgwick LLP, Los Angeles,
California; Linda E. Maichl, Michael J. Suffern (argued),
Ulmer & Berne LLP, Cincinnati, Ohio, for Defendant-
Appellant Xanodyne Pharmaceuticals, Inc.
Louis M. Bograd (argued) & Andre M. Mura, Center for
Constitutional Litigation, Washington, D.C.; Matthew J. Sill,
Sill Law Group LLP, Edmond, Oklahoma; Andrew N. Chang
and Stuart B. Esner (argued), Esner, Chang & Boyer,
Pasadena, California; Elise R. Sanguinetti, Khorrami Boucher
Sumner LLP, Oakland, California; James P. Sizemore, The
Sizemore Law Firm, El Segundo, California, for Plaintiffs-
Appellees Romo, Corber, et al.
6 CORBER V. XANODYNE PHARMACEUTICALS
Jeremy B. Rosen, Horvitz & Levy LLP, Encino, California,
for Amici Curiae Chamber of Commerce of the United States
of America and PhRMA.
Richard Abbott Samp, Washington Legal Foundation,
Washington, D.C., for Amicus Curiae Washington Legal
Foundation.
David M. Arbogast, ARBOGAST LAW, A.P.C., Los
Angeles, California, for Amicus Curiae American
Association for Justice.
John Beisner, Skadden, Arps, Slate, Meagher & Flom LLP,
Washington, D.C., for Amicus Curiae Product Liability
Advisory Council.
CORBER V. XANODYNE PHARMACEUTICALS 7
OPINION
GOULD, Circuit Judge:
We must decide whether removal is proper under the
“mass action” provision of the Class Action Fairness Act of
2005 (“CAFA”), 28 U.S.C. § 1332(d)(11)(B)(i), when
plaintiffs in several actions1 moved for coordination in the
state trial court pursuant to California Code of Civil
Procedure section 404 “for all purposes” and justified their
request in part by asserting a need to avoid inconsistent
judgments. CAFA extends federal removal jurisdiction for
certain class actions and for mass actions 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). Because we conclude that all of the
CAFA requirements for a removable mass action are met
under the totality of the circumstances in these cases, we
reverse the district court’s remand orders.
I
Defendants-Appellants Teva Pharmaceuticals USA, Inc.
(“Teva”) and Xanodyne Pharmaceuticals, Inc. (“Xanodyne”)
appeal from the district court’s orders remanding these cases
to state court. These cases were two 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 relief drugs, as well as in generic
pain relievers. There are additional propoxyphene cases
1
Each of these actions has fewer than 100 plaintiffs, but the actions have
far more than 100 plaintiffs when considered together.
8 CORBER V. XANODYNE PHARMACEUTICALS
pending in multidistrict litigation in the Eastern District of
Kentucky. See In re Darvocet, Darvon & Propoxyphene
Prods. Liab. Litig., 780 F. Supp. 2d 1379 (J.P.M.L. 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 safety
concerns. Teva held the rights to the generic form of
Darvocet and Darvon, and Plaintiffs allege that Teva was
involved in all aspects of the creation, distribution, and sale
of generic propoxyphene products. Xanodyne acquired the
rights to Darvocet and Darvon in 2007.
To date, more than forty actions have been filed in
California state courts regarding propoxyphene pain relievers.
On October 23, 2012, a group of attorneys responsible for
many of the propoxyphene actions against Teva, Xanodyne,
and other defendants filed petitions asking the California
Judicial Council to establish a coordinated proceeding for all
California propoxyphene actions under section 404 of the
California Code of Civil Procedure.2 California Code of Civil
2
Under section 404, petitions for coordination are handled by the
Chairperson of the Judicial Council, who “may assign a judge to
determine whether the actions are complex, and if so, whether
coordination of the actions is appropriate.” Cal. Civ. Proc. Code § 404.
The extent of coordination and the purposes for which cases are
coordinated, including pre-trial, trial, and post-trial proceedings, are within
the sole discretion of the Judicial Council and any judge assigned pursuant
to section 404. See id. §§ 404.1–.9; Abelson v. Nat’l Union Fire Ins. Co.
of Pittsburgh, PA., 35 Cal. Rptr. 2d 13, 18 (Ct. App. 1994) (“As a general
matter the rules implementing our coordination statutes vest the
coordinating judge with flexible procedures and whatever great breadth of
discretion may be necessary and appropriate . . . .” (internal quotation
marks and footnote omitted)).
CORBER V. XANODYNE PHARMACEUTICALS 9
Procedure section 404.1, which sets out the standards for
coordination, states:
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.
Plaintiffs asked for coordination of their lawsuits for
reasons consistent with the above factors, 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.” Plaintiffs argued in their
petitions and the supporting memoranda that the cases should
be coordinated before one judge “hearing all of the actions for
all purposes,” to address “the same or substantially similar”
causes of action, issues of law, and issues of material fact.
After these petitions for coordination were filed, Teva and
Xanodyne removed the cases to federal district court under
CAFA’s mass action provision.
10 CORBER V. XANODYNE PHARMACEUTICALS
CAFA provides federal district courts with original
jurisdiction over “mass actions” if the actions meet all of the
statutory requirements. 28 U.S.C. § 1332(d). CAFA defines
a mass action as:
[A]ny 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, except that
jurisdiction shall exist only over those
plaintiffs whose claims in a mass action
satisfy the jurisdictional amount requirements
under subsection (a).
28 U.S.C. § 1332(d)(11)(B)(i). The parties dispute only
whether Plaintiffs’ petitions for coordination constitute
proposals for the cases “to be tried jointly” under CAFA.
The district court held that it lacked jurisdiction under
CAFA because Plaintiffs’ petitions for coordination were not
proposals to try the cases jointly, and it remanded the cases
back to state court. The district court distinguished these
cases from the Seventh Circuit’s decision in In re Abbott
Laboratories, Inc., 698 F.3d 568 (7th Cir. 2012), and held
that Plaintiffs’ petitions were sufficiently different from
Abbott’s consolidation request because the petitions filed in
this case focused on pre-trial purposes, while the petition
filed in Abbott explicitly sought consolidation “through trial.”
Defendants sought permission to appeal the district
court’s remand orders, which we granted. A three-judge
panel affirmed. See Romo v. Teva Pharm. USA, Inc.,
731 F.3d 918 (9th Cir. 2013), cert. denied, 134 S. Ct. 2872
 CORBER V. XANODYNE PHARMACEUTICALS 11
(2014). A majority of nonrecused judges voted to rehear the
case en banc. 742 F.3d 909 (9th Cir. 2014) (order). We
review the district court’s remand order de novo. See Abrego
Abrego v. Dow Chem. Co., 443 F.3d 676, 679 (9th Cir. 2006)
(per curiam).
II
The controlling issue before us is whether Plaintiffs’
petitions to coordinate actions under California Code of Civil
Procedure section 404 constitute proposals for these actions
to be tried jointly, making the actions a “mass action” subject
to federal jurisdiction under CAFA. To answer that question,
we turn to the language and purpose of CAFA. Mississippi
ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736, 741–44
(2014). The statutory issue for us is whether the petitions
filed in this case, seeking coordination of the California
propoxyphene actions, were in legal effect proposals for those
actions to be tried jointly. This is a question of first
impression in the Ninth Circuit.
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 Chem. Co., 561 F.3d 945, 952 (9th Cir. 2009). 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).
We have said that CAFA’s mass action provision is
“fairly narrow,” Tanoh, 561 F.3d at 953, given that it applies
only if there is an aggregate amount in controversy of $5
12 CORBER V. XANODYNE PHARMACEUTICALS
million or more, at least one plaintiff who is a citizen of a
state or foreign state different from that of any defendant, and
when “monetary relief claims of 100 or more persons are
proposed to be tried jointly,” 28 U.S.C. § 1332(d)(11)(B)(i);
see Tanoh, 561 F.3d at 952–53. Tanoh v. Dow Chemical Co.
holds, consistent with the plain language of CAFA, that the
proposal to try claims jointly must come from the plaintiffs,
not from the defendants. 561 F.3d at 953. Further, Tanoh
correctly holds that if the mass action provision’s
requirements are not met, we cannot ignore its terms based on
general statements in CAFA’s legislative history or the theory
that plaintiffs should not be able to “game” jurisdictional
statutes to remain in state court. Id. at 954.
Tanoh also holds 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 100-plaintiff
threshold. Id. at 953, 956; see Parson v. Johnson & Johnson,
749 F.3d 879, 886 (10th Cir. 2014); Scimone v. Carnival
Corp., 720 F.3d 876, 881–82 (11th Cir. 2013); Anderson v.
Bayer Corp., 610 F.3d 390, 393 (7th Cir. 2010). Under this
view, plaintiffs can structure actions in cases involving more
than 100 potential claimants so as to avoid federal jurisdiction
under CAFA. That is not surprising, and it is analogous to
the fact that individuals and corporations can structure
transactions so as to avoid statutory prohibitions or terms.
Amici Chamber of Commerce of the United States of
America and PhRMA urge us to conclude that the Supreme
Court’s decision in Standard Fire Insurance Co. v. Knowles,
133 S. Ct. 1345 (2013), fatally “undermines Tanoh’s
reasoning and holding.” We reject this interpretation of
Knowles, which itself reiterates that plaintiffs are the “masters
of their complaints” who may structure those complaints to
CORBER V. XANODYNE PHARMACEUTICALS 13
avoid federal jurisdiction in some circumstances. See id. at
1350.3
But while plaintiffs are the masters of their complaints,
they are also the masters of their petitions for coordination.
Stated another way, when we assess whether there has been
a proposal for joint trial, we hold plaintiffs responsible for
what they have said and done. 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
voluntarily asked for coordination under section 404, and
they submitted memoranda in support of their petitions for
coordination. We will carefully assess the language of the
petitions for coordination to see whether, in language or
substance, they proposed a joint trial.
We conclude that Plaintiffs’ petitions for coordination are
proposals for joint trial. First, the petitions say that Plaintiffs
seek coordination “for all purposes.” “All purposes” must
3
In Knowles, the Supreme Court rejected a proposed class action
plaintiff’s attempt to stipulate that damages would not exceed $5 million.
133 S. Ct. at 1350 (“[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.”). It is possible to read
Knowles narrowly to mean only that named plaintiffs cannot stipulate to
limit the damages claims of unnamed class members prior to class
certification. Yet, the Court did limit in at least one way the strategies a
plaintiff may use to avoid federal jurisdiction under CAFA when it
declined to “exalt form over substance” for “CAFA jurisdictional
purposes.” Id.
14 CORBER V. XANODYNE PHARMACEUTICALS
include the purposes of trial. So reading the petitions
literally, Plaintiffs, who in total number far more than 100,
were seeking a joint trial. Second, the specific reasons given
for coordination also support the conclusion that a joint trial
was requested. For example, Plaintiffs listed potential issues
in support of their petitions that would be addressed only
through some form of joint trial, such as the danger of
inconsistent judgments and conflicting determinations of
liability.
Our conclusions here are consistent with Tanoh, where
we held that “the decision to try claims jointly and thus
qualify as a ‘mass action’ under CAFA should remain . . .
with plaintiffs.” 561 F.3d at 954. Unlike the plaintiffs in
Tanoh, who merely filed separate actions that the defendant
sought to try jointly, Plaintiffs’ filing of the petitions for
coordination was a voluntary and affirmative act that we
conclude was a proposal to try the cases jointly. See id. at
953–54.
Plaintiffs contend that they were simply reciting the
section 404.1 factors, but we find this argument unpersuasive
given the language of the petitions and the supporting
memoranda. Plaintiffs did not simply recite the factors for
coordination. They asserted that “[t]he inevitability of
realizing the inconsistency and duplication factor of
California Code of Civil Procedure Section 404.1[] weighs
heavily in favor of coordination.” Plaintiffs further asserted
that “issues pertaining to liability, allocation of fault and
contribution, as well as the same wrongful conduct of
defendants,” would require coordination. None of these
particular arguments is listed in the section 404 factors, and
achieving consistency in these areas would almost certainly
CORBER V. XANODYNE PHARMACEUTICALS 15
require a joint trial.4 Plaintiffs’ petitions requested more than
pre-trial coordination. Plaintiffs repeatedly stated that the
factors catalogued in section 404.1 all supported
coordination, including the fact that “[o]ne judge hearing all
of the actions for all purposes in a selected site or sites will
promote the ends of justice.” In the application of a
jurisdictional rule, as well as in its establishment, we agree
with the Supreme Court’s observation that “simplicity is a
virtue.” Hood, 134 S. Ct. at 744 (internal quotation marks
omitted). Looking at the plain language of Plaintiffs’
petitions and memoranda, we must conclude that Plaintiffs
proposed a joint trial in asking that “all of the actions” be
coordinated “for all purposes.”
This is not to say that all petitions for coordination under
section 404 are per se proposals to try cases jointly for the
purposes of CAFA’s mass action provision.5 We can
envision a section 404 petition that expressly seeks to limit its
request for coordination to pre-trial matters, and thereby align
with the mass action provision’s exception for “any civil
4
Although some of these purposes could theoretically be addressed
without a joint trial, through default judgment or summary judgment, it is
not realistic to think that all of the concerns listed in Plaintiffs’ petitions
for coordination could be achieved in pre-trial procedures. Those
concerns were joined with requests to coordinate the actions “for all
purposes.” The petitions did not limit their scope to pre-trial procedures.
5
Plaintiffs also argue that their petitions were not proposals to try the
cases jointly because section 404 petitions for coordination need not result
in coordination for all purposes under McGhan Medical Corp. v. Superior
Court, 14 Cal. Rptr. 2d 264 (Ct. App. 1992). However, this argument is
misplaced because under the plain language of CAFA, we must determine
whether Plaintiffs proposed a joint trial, not whether one will occur at
some future date. That a judge has discretion to limit coordination to pre-
trial matters does not weigh on whether Plaintiffs proposed a joint trial.
16 CORBER V. XANODYNE PHARMACEUTICALS
action in which . . . the claims have been consolidated or
coordinated solely for pretrial proceedings.” 28 U.S.C.
§ 1332(d)(11)(B)(ii)(IV). It is not clear whether the
California Judicial Council would grant coordination for less
than “all purposes.” However, if Plaintiffs had qualified their
coordination request by saying that it was intended to be
solely for pre-trial purposes, then it would be difficult to
suggest that Plaintiffs had proposed a joint trial.6 But where,
as here, plaintiffs petition for coordination by arguing that
“hearing all of the actions” together “for all purposes” would
promote the ends of justice, they propose a joint trial,
triggering federal jurisdiction as a mass action under CAFA.
We reject the rule urged by Plaintiffs that a petition to
evoke CAFA must expressly request a “joint trial” in order to
be a proposal to try the cases jointly. Although such a rule
would be easy to administer, it would ignore the real
substance of Plaintiffs’ petitions. See Abbott, 698 F.3d at 572
(“[A] proposal for a joint trial can be implicit.”); see also
Atwell v. Bos. Scientific Corp., 740 F.3d 1160, 1163 (8th Cir.
2013) (holding that proposals for joint trial may be made
implicitly); Bullard v. Burlington N. Santa Fe Ry., 535 F.3d
759, 762 (7th Cir. 2008) (same).
Two of our sister circuits have reached similar
conclusions when examining petitions for consolidation. In
Abbott, the Seventh Circuit reasoned that the plaintiffs’
petition for consolidation “through trial” and “not solely for
pretrial proceedings” was a proposal to try jointly their
6
The parties have argued about whether invoking section 404 in and of
itself, even in a petition that expressly sought only pre-trial coordination,
would constitute a proposal to try cases jointly, but that issue is not now
before us.
CORBER V. XANODYNE PHARMACEUTICALS 17
separately filed cases. 698 F.3d at 573. The Seventh Circuit
concluded that, contrary to the plaintiffs’ assertion that they
did not specifically ask for a joint trial, the language of the
plaintiffs’ petition for consolidation could be construed only
as an implicit proposal for joint trial. Id. Plaintiffs here seek
to distinguish their own “for all purposes” language from the
“through trial” language present in Abbott, but the differences
between the two phrasings are superficial, and we are not
persuaded.
The Eighth Circuit adopted Abbott’s reasoning,
concluding that plaintiffs proposed a joint trial when they
filed motions asking for special assignment “to a single judge
for both pretrial and trial matters,” and then argued at the
motions hearing that the special assignment made sense “for
consistency of rulings, judicial economy, [and] administration
of justice.” Atwell, 740 F.3d at 1164 (alteration in original).
The Eighth Circuit decided that “the motions for assignment
to a single judge . . ., combined with plaintiffs’ candid
explanation of their objectives, required denial of the motions
to remand” the cases to state court. Id. at 1166. Plaintiffs
further attempt to distinguish their own petitions for
coordination from Atwell on the basis that “[t]here is no such
explicit language in Plaintiffs’ petition,” but again we find
this distinction unpersuasive given the language of Plaintiffs’
memoranda in support of their petitions, which both sought
coordination “for all purposes” and gave reasons that likely
would be satisfied only by a joint trial of some sort.
Asking for coordination or consolidation “for all
purposes” or “through trial” to address common issues of law
or fact is a proposal to try the cases jointly and creates federal
jurisdiction under CAFA’s mass action provision. To hold
otherwise would ignore the plain language, as well as the
18 CORBER V. XANODYNE PHARMACEUTICALS
substance, of Plaintiffs’ section 404 petitions and supporting
memoranda.
III
Because we conclude that Plaintiffs’ petitions for
coordination each constitute a proposal to try the cases
jointly, we REVERSE the district court’s orders granting
Plaintiffs’ motions to remand.7
REVERSED.8
7
In light of our decision, we do not reach Defendants-Appellants’
alternative argument that federal subject-matter jurisdiction exists on other
grounds.
8
We disagree with our dissenting colleague for the reasons stated in this
opinion. First, the dissent relies on parts of plaintiffs’ memorandum
supporting the petition for coordination that urged benefits of coordinating
discovery, but nowhere in the petition or supporting memorandum was it
suggested that coordination would be solely for pre-trial discovery.
Second, the dissent gives inadequate consideration to the fact that the
petition itself recites that it seeks coordination of all the actions “for all
purposes.” Because coordinating “for all purposes” includes for the
purposes of trial, the petition for a coordinating state court was implicitly
a request for joint trial. Third, the position urged by the dissent would
create conflict with decisions of the Seventh and Eighth Circuits, which
have recognized that there can be implicit requests for joint trial evoking
CAFA jurisdiction. Fourth, the principles of ambiguity not favoring
federal jurisdiction and of strict construction of jurisdictional statutes are
not offended here because there is nothing ambiguous about asking for
coordination “for all purposes.” Fifth, the district court cases cited by the
dissent in its footnote 1 are not persuasive to us, because these cases do
not interpret CAFA, do not involve a petition for consolidation or
coordination for all purposes, and do not address the persuasive authority
of Seventh and Eighth Circuits on such issues.
CORBER V. XANODYNE PHARMACEUTICALS 19
RAWLINSON, Circuit Judge, with whom Judge BERZON
joins, dissenting:
This is admittedly a fairly close case but, upon reflection,
I respectfully dissent from the conclusion of my esteemed
colleagues that this case fits within the parameters for
removal under the Class Action Fairness Act of 2005
(CAFA).
I start from the well-established premise that removal is
disfavored when determining federal jurisdiction, and that
any doubt that exists when considering removal statutes
should be construed against removal. See Tanoh v. Dow
Chemical Corp., 561 F.3d 945, 953 (9th Cir. 2009); see also
State of Hawaii v. HSBC Bank Nev. N.A., No. 13-15611, —
F.3d —, 2014 WL 3765697 (9th Cir. Aug. 1, 2014). As we
also recognized in Tanoh, CAFA’s mass action provision is
“fairly narrow.” 561 F.3d at 953.
With those principles firmly in mind, I reach a different
conclusion than that of the majority. The plain language of
the Class Action Fairness Act, 28 U.S.C. § 1332(d)(11)(B)(i),
confers jurisdiction upon federal district courts to try a “mass
action.” A mass action is 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 . . .
28 U.S.C. § 1332(d)(11)(B)(i) (emphasis added).
20 CORBER V. XANODYNE PHARMACEUTICALS
The majority concludes that the Plaintiffs proposed their
cases “to be tried jointly” by filing a petition for coordination
pursuant to California Code of Civil Procedure § 404.1. That
section 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 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.
CCCP § 404.1.
The plaintiffs’ petition for coordination stopped short of
requesting a joint trial as contemplated by the plain language
of the statute. See 28 U.S.C. § 1332(d)(11)(B)(i) (defining a
mass action as one in which claims of 100 or more persons
“are proposed to be tried jointly”).
On page 6 of the Memorandum of Points and Authorities
in support of the petition, plaintiffs gave the following
explanation for seeking coordination:
CORBER V. XANODYNE PHARMACEUTICALS 21
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.
(Emphases added).
It is a stretch 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.” (Emphases added).
Again, we see a focus 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
22 CORBER V. XANODYNE PHARMACEUTICALS
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 . . .
Plaintiffs also 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). Unlike the cases from the
Seventh and Eighth Circuits cited in the majority opinion, not
once does the Petition For Coordination mention “joint trial”
or even “trial.” Rather, the continued focus is on pretrial
matters.
The majority opinion isolates the phrases “duplicate and
inconsistent rulings, orders, or judgments,” “two or more
separate courts . . . may render different rulings on liability
and other issues,” and “hearing all of the actions for all
purposes” to support its conclusion that the plaintiffs sought
a joint trial. Majority Opinion, p. 9. In doing so, the majority
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.
CORBER V. XANODYNE PHARMACEUTICALS 23
Coordination before initiation of discovery in any of the cases
will eliminate waste of resources and will facilitate
economy. . . .” (Emphases added). A fair reading of the
entire petition for coordination reflects a decided focus on
pretrial matters.
Reliance by the majority on the quoted portions of the
petition to the exclusion of all else is inconsistent with the
command that any doubt about federal jurisdiction be
resolved in favor of remand. This is especially true where
most of the quoted words have little to do with trial. I am not
persuaded that a reference to “rulings and orders” evokes the
concept of trial rather than pretrial matters. Indeed, the
opposite may be true:
An order is the mandate or determination of
the court upon some subsidiary or collateral
matter arising in an action, not disposing of
the merits, but adjudicating a preliminary
point or directing some step in the
proceedings.
Black’s Law Dictionary 1270 (10th ed. 2009) (citing 1 Henry
Campbell Black, A Treatise on the Law of Judgments, § 1, at
5 (2d ed. 1902)).
In turn “[r]ulings on motions are ordinarily orders . . .”
Id. (citing 1 A.C. Freeman, A Treatise on the Law of
Judgments, § 19, at 28 (Edward W. Tuttle ed., 5th ed. 1925)).
Consequently, at best, Plaintiffs’ reference to rulings and
orders is ambiguous, and ambiguity defeats removal. See
Tanoh, 561 F.3d at 953.
24 CORBER V. XANODYNE PHARMACEUTICALS
The majority is also on shaky ground when relying on the
plaintiffs’ reference to inconsistent judgments, 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). Indeed, it is
not at all uncommon for similar cases to be resolved short of
trial. See, e.g., Navarrette v. Armite Labs. Inc., No. B203997,
2009 WL 1040304 at *1 (Cal. App. 2 Dist., April 20, 2009)
(“Plaintiffs filed a tort action against 78 manufacturers and
suppliers of products used for metal fabrication at a now-
defunct foundry, where plaintiffs once worked. Plaintiffs
allege that they were injured by their workplace exposure to
defendants’ products. The trial court dismissed the case after
sustaining demurrers to the plaintiffs’ fourth amended
complaint, without leave to amend.”). Judgment in favor of
defendants was affirmed; see also Baycol Cases I and II, No.
B20493, 2009 WL 3353536 at *3 (Cal. App. 2 Dist., Oct. 20,
2009) (“Several hundred cases involving Baycol, including a
number of class actions, which had been filed in California
were consolidated in a Judicial Council Coordinated
Proceeding (JCCP) in Los Angeles Superior Court. . . .
During the next approximately two years many of the cases
in the JCCP were dismissed or resolved in [defendant’s]
favor on summary judgment. . . .”) (emphases added).
Plaintiffs’ reference to rulings on liability also fit readily
within the concept of resolving cases short of trial. See id.
(resolving cases in defendant’s favor on summary judgment).
Unsurprisingly, the majority’s contrary notion that a joint trial
is “almost certainly require[d]” to determine liability,
Majority Opinion, p. 14–15, is not supported by citation to
any California authority. The district court judges who
rendered decisions remanding these cases to state court are all
CORBER V. XANODYNE PHARMACEUTICALS 25
seasoned California practitioners, and not one of them
interpreted the Petition For Coordination as requesting a joint
trial. See Freitas v. McKesson, No. 12-5948 SC, 2013 WL
685200 at *4 (N.D. Cal. Feb. 25, 2013) (declining to “[i]nfer[
] a request for a joint trial from Plaintiffs’ Petition, which
does not expressly request such a trial”); see also Rice v.
McKesson Corp., No. C12-05949 WHA, 2013 WL 97738 at
*2 (N.D. Cal. Jan. 7, 2013) (rejecting the argument that
Plaintiffs “implicitly proposed a removable mass action in
their coordination petition by using the ambiguous language
‘for all purposes’ and ‘by raising the possibility of
inconsistent judgments’”); Rentz v. McKesson Corp., No. CV
12-9945 PSG, 2013 WL 645634 at *3 (C.D. Cal. Feb. 20,
2013) (noting that the language in the petition for
coordination “focuses on coordination for pretrial purposes”
and “the complete lack of any mention of joint trial”); Posey
v. McKesson Corp., No. C 12-05939 RS, 2013 WL 361168 at
*3 (N.D. Cal. Jan. 29, 2013) (holding that “[c]onstruing
plaintiffs’ petition for coordination as the functional
equivalent of an express request for a joint trial would
conflict with both the guidance provided by our court of
appeals in Tanoh, as well as with the general canon of strict
construction of removal statutes) (citation and alteration
omitted).
The cases from the Seventh and Eighth Circuit relied
upon by the majority are easily distinguishable. In this case,
the Plaintiffs requested coordination of the cases “for all
purposes.” The majority reads that phrase as implicitly
requesting a joint trial, citing the Seventh Circuit’s decision
in In re Abbott Laboratories, Inc., 698 F.3d 568 (7th Cir.
2012). However, not only did the Seventh Circuit consider a
completely different procedure, consolidation as opposed to
coordination, see id., at 570, the plaintiffs’ request in that
26 CORBER V. XANODYNE PHARMACEUTICALS
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)
(emphases added). In fact, there was really nothing implicit
about the Abbott plaintiffs’ request for a joint trial. Rather,
the request for a joint trial was open and notorious.
In a similar vein, the plaintiffs in Atwell v. Boston
Scientific Corp., 740 F.3d 1160, 1161 (8th Cir. 2013)
requested that their cases be assigned “to a single judge for
purposes of discovery and trial . . .” (emphasis added); see
also Bullard v. Burlington Northern, 535 F.3d 759, 761–62
(7th Cir. 2008) (“A complaint identifying 144 plaintiffs . . .
implicitly proposes one trial. . . .”); Koral v. Boeing, 628 F.3d
945, 947 (7th Cir. 2011) (citing Bullard, 535 F.3d at 762 for
the proposition that a proposal for a joint trial “can be
implicit, as where a single complaint joins more than 100
plaintiffs’ claims . . .”) (emphasis added). None of these
cases address the facts of this case, where there was not a
single Complaint joining over one hundred plaintiffs, and
there was no use of the word “trial” anywhere in the petition
seeking coordination.
The California district court judges who considered this
issue uniformly distinguished Abbott. See Freitas, 2013 WL
685200 at *4 (“Abbott concerned plaintiffs who had explicitly
asked for their cases to be consolidated ‘through trial’ and
‘not solely for pretrial proceedings.’ Abbott is therefore
distinguishable . . . ”) (citation omitted); Rice, 2013 WL
97738 at *2 (“Defendants’ reliance on . . . Abbott is
misplaced. . . .”); Rentz, 2013 WL 645634 at *3 (“The Court
is neither persuaded that it should follow Abbott nor that
Abbott applies to the facts of the present case. . . .”); Posey,
CORBER V. XANODYNE PHARMACEUTICALS 27
2013 WL 361168 at *3 (“Abbott is easily distinguishable
from the present case on its facts. . . .”). I am persuaded to
the view of these able district court judges. See United States
v. Graf, 610 F.3d 1148, 1160 (9th Cir. 2010) (referencing
decisions from district courts within the circuit); see also In
re First Alliance Mort. Co., 471 F.3d 977, 1005 (same).
The conclusion that Plaintiffs implicitly requested a joint
trial is not supported by the language of CAFA or by the
cases from the Seventh and Eighth Circuits so heavily relied
upon by the majority. That conclusion is inconsistent with
precedent from the Supreme Court and this circuit that
Plaintiffs are the masters of their Complaints, that removal
statutes (including CAFA) are to be construed narrowly, that
any ambiguity is to be construed against removal1, and that
1
I disagree with the majority’s unsupported contention that “there is
nothing ambiguous about asking for coordination ‘for all purposes.’”
Majority Opinion, p. 18 n.8 (internal quotation marks omitted). That
contention simply begs the question. Considering the petition for
coordination as a whole, the phrase “for all purposes” could easily be
interpreted as referring to all pretrial or discovery purposes, particularly
in view of the consistent explicit references to pretrial and discovery
matters, and not one mention of the word “trial.” See Far West Federal
Bank, S.B. v. Dir., Office of Thrift Supv., 746 F. Supp. 1042, 1048 (D. Or.
1990), reversed on other grounds, 951 F.2d 1093 (9th Cir. 1991) (finding
the phrase “for all purposes” ambiguous); see also Francis v. LaMarque,
No. C01-3957, 2002 WL 31414310 at *4 (N.D. Cal. 2002) (finding an
instruction containing the phrase “for all purposes” ambiguous when
considered in the context of another instruction). The majority criticizes
these cases as being distinguishable, but still offers no supporting
authority for its contention that the phrase “for all purposes” is not
ambiguous. The fact remains that the phrase “for all purposes” upon
which the majority so heavily relies has been found ambiguous by at least
two courts.
28 CORBER V. XANODYNE PHARMACEUTICALS
the plain language of the statute controls. Finally, nothing
prevents Defendants from seeking removal if and when
Plaintiffs actually request a joint trial. See Tanoh, 561 F.3d
at 956. I respectfully dissent.
The majority also argues that the Plaintiffs’ petition for coordination
did not state that coordination was sought solely for pretrial purposes. But
neither does the petition state that a joint trial is requested. At least the
words “pretrial” and “discovery” were specifically and consistently
referenced in Plaintiffs’ petition, which is more than can be said for the
words “joint trial,” which were not mentioned at all. Finally, as discussed
in the text, affirming the district court’s remand would not create a circuit
split, because the cases from the Seventh and Eighth Circuits are readily
distinguishable, most notably by an explicit request from Plaintiffs for a
joint trial.