IN THE UNITED STATES DISTRICT COURT FOR THE …clear that it is a plaintiffs’ mere proposal of a “mass action,” and not the endorsement by a court of that proposal, that triggers

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

E.H., a minor, by RHEALYN ALEXANDER, individually, and as parent and next friend of E.I., et al.,

) ) )

) Case Number: 12-CV-52-GPM-DGW Plaintiffs, )

)

Judge G. Patrick Murphy v. )

) ABBOTT LABORATORIES INC., )

)

Defendant. )

DEFENDANT ABBOTT LABORATORIES INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND

Case 3:12-cv-00052-GPM-DGW Document 27 Filed 03/22/12 Page 1 of 25 Page ID #885

i

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

ARGUMENT ...................................................................................................................................3

I. CAFA Removal Is Not Disfavored. .....................................................................................3

II. Plaintiffs’ Proposed Consolidation Created a “Mass Action” Over Which This Court Has Jurisdiction Pursuant to CAFA. ..................................................................5

A. Plaintiffs Requested a Consolidated Trial Proceeding Pursuant to Illinois Rule 384. ......................................................................................................5

B. CAFA’s Definition of “Mass Action” Is Broader than Plaintiffs Contend. ............7

C. Additional Considerations Demonstrate That Plaintiffs’ Proposal for Consolidated Trial Proceedings Was a Proposal For Claims of 100 or More Persons to be “Tried Jointly.” ...........................................................10

1. Plaintiffs Cannot Defeat Removal By Recasting Their Motion to Consolidate................................................................................10

2. Plaintiffs’ Argument That They Proposed Consolidation Solely for Pretrial Purposes Asserts an Exception to “Mass Action” Removal Under CAFA, and Plaintiffs Cannot Meet Their Burden of Showing That the Exception Applies. .............................10

3. Plaintiffs’ Disparaging Characterization of Their Proposed Consolidation Does Not Place That Proposal Beyond the Reach of CAFA Jurisdiction. .....................................................................15

D. Plaintiffs’ Filing of Their Actions as Ten Separate Cases Does Not Preclude CAFA “Mass Action” Jurisdiction Over the Proposed Consolidation. ........................................................................................................16

E. Abbott’s Notice of Removal Was Timely. ............................................................17

CONCLUSION ..............................................................................................................................19


ii

TABLE OF AUTHORITIES

Page(s) CASES

Altoum v. Airbus S.A.S., No. 10-CV-467, 2010 WL 3700819 (N.D. Ill. Sept. 9, 2010) .................................................10

Anderson v. Bayer Corp., 610 F.3d 390 (7th Cir. 2010)................................................9, 16 n.7, 17

Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827 (7th Cir. 2011) .................................................................................. 1-2, 4, 4 n.1

Blomberg v. Serv. Corp. Int’l, 639 F.3d 761 (7th Cir. 2011) .........................................................13

Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759 (7th Cir. 2008) ............................ passim

Evans v. Walter Indus., 449 F.3d 1159 (11th Cir. 2006) .................................................................5

Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675 (7th Cir. 2006) ..................................5, 12

In re Burlington N. Santa Fe Ry. Co., 606 F.3d 379 (7th Cir. 2010) .............................................10

In re Shell Oil Co., 970 F.2d 355 (7th Cir. 1992) ..........................................................................15

Koral v. Boeing Co., 628 F.3d 945 (7th Cir. 2011) .......................................................................17

Lecker v. Bayer Corp., No. 09-991, 2010 WL 148627 (S.D. Ill. Jan. 13, 2010) ...........................18

LG Display Co. v. Madigan, 665 F.3d 768 (7th Cir. 2011) .............................................................4

Spivey v. Vertrue, Inc., 528 F.3d 982 (7th Cir. 2008) ....................................................................13

Tanoh v. Dow Chem. Co., 561 F.3d 945 (9th Cir. 2009) .................................................................2

Westerfeld v. Indep. Processing, LLC, 621 F.3d 819 (8th Cir. 2010).......................................... 4-5

Zbaraz v. Madigan, 572 F.3d 370 (7th Cir. 2009) .........................................................................17

Statutes

28 U.S.C. § 1332(d) .........................................................................................................................7

28 U.S.C. § 1332(d)(2) ..................................................................................................................13

28 U.S.C. § 1332(d)(4) ..................................................................................................................11

28 U.S.C. § 1332(d)(4)(A)(i)(III) ............................................................................................ 11-12


iii

28 U.S.C. § 1332(d)(11) ............................................................................................................1, 20

28 U.S.C. § 1332(d)(11)(A) .............................................................................................................7

28 U.S.C. § 1332(d)(11)(B)(i) .........................................................................................................7

28 U.S.C. § 1332(d)(11)(B)(ii) ......................................................................................................11

28 U.S.C. § 1332(d)(11)(B)(ii)(I) ..................................................................................................12

28 U.S.C. § 1332(d)(11)(B)(ii)(II) .................................................................................................17

28 U.S.C. § 1407 ....................................................................................................................5 n.2, 7

28 U.S.C. § 1446(b) ...................................................................................................................3, 14

Class Action Fairness Act of 2005, Pub. L. No. 109-2, § 2, 119 Stat. 4 ............................... passim

S. Rep. No. 109-14 (2005), reprinted in 2005 U.S.C.C.A.N. 3 ................................................... 4-5

OTHER AUTHORITIES

BLACK’S LAW DICTIONARY 350 (9th ed. 2009) ...............................................................................6

Ill. S. Ct. R. 384 ..................................................................................................................... passim


Defendant Abbott Laboratories Inc. (“Abbott”), through undersigned counsel, submits the

following Opposition in response to Plaintiffs’ Motion to Remand.

INTRODUCTION

Congress has mandated that federal district courts are to exercise subject matter

jurisdiction over a “mass action,” 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) (emphasis added).

Under the Class Action Fairness Act of 2005 (“CAFA”), a “mass action” is treated as the

functional equivalent of a class action, and is subject to removal to address exactly what occurred

here – artful pleading at the outset of litigation, followed by efforts to transform nominally

separate cases into a consolidated mass tort with nationwide implications pending in a state court

of plaintiffs’ choosing. Plaintiffs’ Motion to Consolidate the Illinois Depakote Cases and

subsequently filed related actions created a “mass action.” Confronted with the consequences of

their own proposal, Plaintiffs now seek to divest this Court of jurisdiction by denying the

objective reality of what they proposed. Plaintiffs proffer two primary arguments to support

their position that the request by 410 plaintiffs from across the United States to have their claims

consolidated for trial in one strategically selected state court does not fall within the scope and

purpose of CAFA’s removal authority. Those arguments lack merit.

Preliminarily, Plaintiffs incorrectly assert that there is a “heavy burden to establish

federal jurisdiction” and a “strong presumption” in favor of remand under CAFA, and that any

doubts about jurisdiction should be resolved in Plaintiffs’ favor as the party opposing removal.

(Mot. Remand at 2.) The Seventh Circuit has held otherwise: “There is no presumption against

federal jurisdiction in general, or removal in particular.” Back Doctors Ltd. v. Metro. Prop. &

Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011). In confirming that rule, the Seventh Circuit


- 2 -

emphasized that “[t]he Class Action Fairness Act must be implemented according to its terms,

rather than in a manner that disfavors removal of large-stakes, multi-state class actions.” Id.

Thus, the foundation for Plaintiffs’ Motion to Remand is at odds with the law of the Seventh

Circuit.

Citing principally to a Ninth Circuit case, Tanoh v. Dow Chemical Co., 561 F.3d 945 (9th

Cir. 2009), Plaintiffs also incorrectly assert that only a proposal for a “mass joint trial” — a

phrase invented by Plaintiffs that appears nowhere in CAFA or the case law — of 100 or more

persons constitutes a “mass action” under CAFA. The Seventh Circuit, in Bullard v. Burlington

Northern Santa Fe Railway Co., 535 F.3d 759 (7th Cir. 2008), has rejected that contention. As

recognized in Bullard, a trial comprising a “mass action” can involve considerably fewer than

100 plaintiffs, provided that the trial has an effect on the claims of 100 or more plaintiffs: “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.” Id. at 762.

Plaintiffs, relying on Illinois Supreme Court Rule 384, asserted that the claims of 410

plaintiffs involve common questions of law and fact, such that a consolidated trial proceeding is

warranted. Plaintiffs expressly sought a consolidated trial proceeding to “facilitate the efficient

disposition of a number of universal and fundamental substantive questions applicable to all or

most Plaintiffs’ cases . . . .” (Ex. A, Pls.’ Mem. Supp. Mot. Consol. at 14 (emphasis added).)

The consolidation requested by Plaintiffs is precisely the situation that the Seventh Circuit

envisioned as a “mass action”: consolidation for trial proceedings of claims advanced by 100 or

more persons that present common questions of law or fact. Plaintiffs apparently wish that they

had not converted the once-separate Illinois Depakote Cases into a “mass action,” but that wish


- 3 -

cannot reverse the legal effect of their Motion to Consolidate. Plaintiffs created a “mass action”

over which this Court has jurisdiction, and Plaintiffs’ Motion to Remand must be denied.

Plaintiffs’ arguments that Abbott’s removal was, at turns, both premature and too late do

not alter this conclusion. Plaintiffs posit that Abbott’s removal was premature because,

according to Plaintiffs, the Motion to Consolidate by itself did not “unambiguously” and

“unequivocally” establish federal jurisdiction. (Mot. Remand at 12.) CAFA, however, makes

clear that it is a plaintiffs’ mere proposal of a “mass action,” and not the endorsement by a court

of that proposal, that triggers the right of removal; and, given the thirty-day shelf life of the right

to remove, see 28 U.S.C. § 1446(b), Abbott was not obliged to wait until after its right of

removal expired to assert that right. Plaintiffs’ Motion to Consolidate conferred subject matter

jurisdiction on this Court, and Abbott’s removal well within thirty days of its receipt of the

Motion to Consolidate was timely.

Ironically, Plaintiffs close their Motion to Remand with the argument that even though

their Motion to Consolidate was not a proposal sufficient to invoke CAFA removal, an earlier

reassignment of several cases then pending in the Circuit Court for Cook County to a single

judge did give rise to a right of removal pursuant to CAFA. The Cook County reassignment

order was not a consolidation of proceedings for trial, and was not proposed to the court by

Plaintiffs, and thus could not, under the plain language of the statute, have given rise to a CAFA-

based removal.

ARGUMENT

I. CAFA Removal Is Not Disfavored.

Citing to cases outside of the CAFA context, Plaintiffs ground their remand effort in the

supposedly “settled” and “dispositive” proposition “that any doubts about federal jurisdiction are

to be resolved in favor of remand.” (Mot. Remand at 2 (emphasis in original) (citing In re


- 4 -

Safeco Inc. Co. of Am., 585 F.3d 326, 329-30 (7th Cir. 2000), and quoting Fuller v BNSF Ry.

Co., 472 F. Supp. 2d 1088, 1091 (S.D. Ill. 2007) (quoting Doe v. Allied Signal, Inc., 985 F.2d

908, 911 (7th Cir. 1993), and citing Jones v. Gen. Tire & Rubber Co., 541 F.2d 660, 664 (7th

Cir. 1976)).) As the Seventh Circuit has made clear, Plaintiffs are wrong, particularly insofar as

CAFA is concerned: “There is no presumption against federal jurisdiction in general, or removal

in particular. The Class Action Fairness Act must be implemented according to its terms, rather

than in a manner that disfavors removal of large-stakes, multi-state class actions.” Back Doctors,

637 F.3d at 830; but cf. LG Display Co. v. Madigan, 665 F.3d 768 (7th Cir. 2011) (noting that

“restraint” and a strict construction of CAFA’s removal provisions is appropriate in the parens

patriae context, i.e., “when a case brought by a state in its own courts is removed to federal

court”).1

Rather than the narrow construction urged by the Plaintiffs, appellate courts in the

Seventh Circuit and elsewhere have recognized that CAFA significantly broadened federal

jurisdiction, and that exceptions to that jurisdiction are to be construed narrowly. For example,

in Westerfeld v. Independent Processing, LLC, 621 F.3d 819 (8th Cir. 2010), the Eighth Circuit

highlighted the Senate Report that emphasized these points:

Because of perceived “abuses of the class action device,” Congress enacted CAFA to provide, inter alia, for “Federal court consideration of interstate cases of national importance.” Class Action Fairness Act of 2005, Pub. L. No. 109-2, § 2, 119 Stat. 4. Accordingly, CAFA grants broad federal jurisdiction over class actions and establishes narrow exceptions to such jurisdiction. See S. Rep.

1 Contrary to the argument asserted by the plaintiffs in the related Depakote mass action pending in the United States District Court for the Northern District of Illinois, the Supreme Court cases directing the federal district courts to “scrupulously confine their own jurisdiction to the precise limits which the statute has defined” do not conflict with Back Doctors. None of the Supreme Court cases cited by Plaintiffs addresses a CAFA-related removal, and the Seventh Circuit and Supreme Court cases are in perfect harmony on this point: removal jurisdiction is to be construed according to its terms, without bias or disfavor. Back Doctors made this point specifically in the CAFA context, and has been neither overruled nor criticized.


- 5 -

No. 109-14, at 43 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 41 (CAFA “is intended to expand substantially federal court jurisdiction over class actions. Its provisions should be read broadly, with a strong preference that interstate class actions should be heard in a federal court if properly removed by any defendant.”).

Id. at 822; see also Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 681 (7th Cir. 2006)

(citing to CAFA legislative history as providing that the jurisdictional reach of the statute should

be read broadly); Evans v. Walter Indus., 449 F.3d 1159, 1164 (11th Cir. 2006) (“The language

and structure of CAFA . . . indicate[ ] that Congress contemplated broad federal court

jurisdiction with only narrow exceptions.” (citation omitted)). Thus, the primary legal argument

that Plaintiffs proffer to support remand is unquestionably contrary to controlling precedent and

the underlying intent of the statute.

II. Plaintiffs’ Proposed Consolidation Created a “Mass Action” Over Which This Court Has Jurisdiction Pursuant to CAFA.

A. Plaintiffs Requested a Consolidated Trial Proceeding Pursuant to Illinois Rule 384.

Illinois Supreme Court Rule 384 provides that when civil actions “involving one or more

common questions of fact or law are pending in different judicial circuits . . . the supreme court

may, on its own motion or on the motion of any party filed with the supreme court, transfer all

such actions to one judicial circuit for consolidated pretrial, trial, or post-trial proceedings.”

(emphasis added.)2 Because the Illinois Depakote Cases were pending in three different judicial

circuits – in Cook, St. Clair, and Madison Counties – Plaintiffs’ effort to consolidate those cases

proceeded according to Rule 384.

2 Rule 384 is based upon 28 U.S.C. § 1407, which establishes the procedure in the federal courts for the pretrial coordination or consolidation of civil actions pending in different districts that involve one or more common questions of fact, with two notable exceptions: (1) Rule 384 provides for consolidation for trial proceedings, not just pretrial proceedings; and (2) consolidations under Rule 384 are made by the Illinois Supreme Court, not a judicial panel. See Committee Notes to Rule 384.


- 6 -

Plaintiffs requested that existing and future Illinois Depakote Cases be transferred to

St. Clair County for “consolidated . . . trial proceedings” under Rule 384. Consistent with the

language and operation of Rule 384, Black’s Law Dictionary defines “consolidate” as follows:

“1. To combine or unify into one mass or body. 2. Civil procedure. To combine, through court

order, two or more actions involving the same parties or issues into a single action ending in a

single judgment or, sometimes, in separate judgments.” BLACK’S LAW DICTIONARY 350 (9th ed.

2009). The definition of “consolidation” strikes a similar note: “1. The act or process of uniting;

the state of being united. . . . 3. Civil procedure. The court-ordered unification of two or more

actions, involving the same parties and issues, into a single action resulting in a single judgment

or, sometimes, in separate judgments.” Id. at 351. Although Plaintiffs now seek to reinterpret

their proposal, Plaintiffs’ Motion to Consolidate was, by the plain meaning of the words

Plaintiffs chose, a request to combine/unify/unite all of the Illinois Depakote Cases for trial

proceedings. The relief Plaintiffs sought, and the justifications for that relief, were repeated

throughout Plaintiffs’ Motion to Consolidate:

• “Consolidation will eliminate duplicative discovery and pretrial litigation, prevent inconsistent pretrial and trial rulings, and thereby promote judicial efficiency.” (Ex. B, Mot. Consol. at 2);

• “Plaintiffs respectfully request . . . an Order transferring all the Depakote Cases . . . to the Circuit Court for St. Clair County for consolidated proceedings against [Abbott]” (id.);

• The cases “are appropriate for transfer and consolidation under Rule 384 because they present substantial common factual and legal issues and consolidation will promote judicial efficiency” (Ex. A, Mem. Supp. Mot. Consol. at 1);

• “Consolidating these cases for proceedings through trial will prevent duplication and inconsistency in discovery and court rulings, and will allow the parties to coordinate . . . trial” (id. at 2);

• “Consolidation will . . . prevent inconsistent pretrial and trial rulings, and thereby promote judicial efficiency” (id. at 11);


- 7 -

• Rule 384 is broader than 28 U.S.C. § 1407, providing for “the transfer of the related cases for trial or post-trial proceedings, and not solely for pretrial proceedings” (id. at 12); and

• Consolidation [through trial] “would also facilitate the efficient disposition of a number of universal and fundamental substantive questions applicable to all or most Plaintiffs’ cases without the risk of inconsistent adjudication of those issues between various courts” (id. at 14).

(emphasis added.) Thus, Plaintiffs unequivocally proposed that because the Illinois Depakote

Cases present substantial common legal and factual issues, a consolidated trial proceeding would

be appropriate for efficiently disposing of universal and fundamental substantive questions

applicable to all of their claims.

B. CAFA’s Definition of “Mass Action” Is Broader than Plaintiffs Contend.

CAFA extends federal jurisdiction to “mass actions” by providing that, “[f]or purposes of

this subsection and section 1453, a mass action shall be deemed to be a class action removable

under paragraphs (2) through (10) if it otherwise meets the provisions of those paragraphs.”

28 U.S.C. § 1332(d)(11)(A). The statute defines “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). Additionally, there must be minimal diversity of citizenship – that is, at least

one plaintiff must be a citizen of a state different from that of at least one defendant – and the

amount in controversy must as a whole exceed $5 million, exclusive of interest and costs, with

the amount in controversy exceeding $75,000, exclusive of interest and costs, for at least one

plaintiff. See Bullard, 535 F.3d at 761; 28 U.S.C. § 1332(d).3

3 Plaintiffs have not argued that the “minimal diversity” and/or “amount in controversy” requirements of CAFA are not satisfied in this case.


- 8 -

Plaintiffs assert an exceedingly narrow definition of “mass action” that is divorced from

the plain language of CAFA and without support in the relevant case law. Specifically, Plaintiffs

claim that a “mass action” requires a proposal for a “mass ‘joint trial’,” which Plaintiffs define as

“a ‘joint’ or ‘mass trial’ or a smaller single trial that will resolve the claims of 100 persons or

more.” (Mot. Remand at 7.) The Seventh Circuit, however, has rejected such a construction.

The Seventh Circuit’s interpretation of “mass action,” as used in CAFA, is set forth in

Bullard v. Burlington Northern Santa Fe Railway Co., 535 F.3d 759 (7th Cir. 2008), where 144

plaintiffs joined in a single complaint in Cook County to seek damages arising from injuries

suffered from exposure to chemicals emitted from a wood-processing plant. The four corporate

defendants removed the case under CAFA. The plaintiffs moved to remand, denying that the

suit was a “mass action” and insisting that they never proposed any particular form of trial, much

less a trial of over 100 persons. See id. at 761. The United States District Court for the Northern

District of Illinois denied remand, and the Seventh Circuit, in an express effort to “settle” the

meaning of CAFA, affirmed. See id. at 761, 762.

The Seventh Circuit, confirming the district court’s conclusion that “one complaint

implicitly proposes one trial,” found that the mere filing of a multi-plaintiff complaint with more

than 100 plaintiffs implicitly proposed a joint trial that constituted a “mass action”:

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 questions of law or fact” are present. 735 ILCS § 5/2-404. . . . It does not matter whether a trial covering 100 or more plaintiffs actually ensues; the statutory question is whether one has been proposed. This complaint, which describes circumstances common to all plaintiffs, proposes one proceeding and thus one trial.

Id. at 762. Although the complaint in Bullard included more than 100 plaintiffs, the Seventh

Circuit went on to clarify that a “mass action” can involve a trial of the claims of fewer than 100

plaintiffs, provided that the trial has an effect on 100 or more plaintiffs’ claims:


- 9 -

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 monetary 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 jurisdiction.

Id.; see also Anderson v. Bayer Corp., 610 F.3d 390, 394 (7th Cir. 2010) (citing Bullard and

observing that 28 U.S.C. § 1332(d)(11) extends to a situation where “only a few representative

plaintiffs would actually go to trial, with claim or issue preclusion to be used to dispose of the

remaining claims without trial”).

Thus, contrary to Plaintiffs’ narrow view of what constitutes a “mass action,” the Seventh

Circuit has determined that the “tried jointly” language of CAFA does not require a single trial

with more than 100 plaintiffs. Bullard instructs that the number of plaintiffs involved in the joint

trial does not matter — it could be ten, or seventy-two — as long as it is proposed that the trial

will have an effect on the claims of 100 or more plaintiffs.4

The relief requested by Plaintiffs under Rule 384 falls within the scope of a “mass action”

as defined by the Seventh Circuit. Plaintiffs expressly sought consolidated trial proceedings to

“facilitate the efficient disposition of a number of universal and fundamental substantive

questions applicable to all or most Plaintiffs’ cases.” (See Ex. A, at 14.) In no uncertain terms,

Plaintiffs’ Motion to Consolidate proposed a consolidated trial proceeding that would dispose of

“universal and fundamental substantive questions” affecting 100 or more Plaintiffs’ claims, even

4 As stated repeatedly in this Opposition, it is Plaintiffs’ proposal that controls the removal question, not what may actually occur. Indeed, it is and will be Abbott’s position that there should not be a consolidated trial of Plaintiffs’ claims, and that trial judgments and verdicts should not have a preclusive effect on other claims.


- 10 -

if all of those Plaintiffs were not part of a single trial. A proposal for such a consolidated trial

proceeding is just what the Seventh Circuit in Bullard considered a mass action and is what

necessarily confers jurisdiction in this Court.

C. Additional Considerations Demonstrate that Plaintiffs’ Proposal for Consolidated Trial Proceedings Was a Proposal for Claims of 100 or More Persons to Be “Tried Jointly.”

1. Plaintiffs Cannot Defeat Removal by Recasting Their Motion to Consolidate.

In the Seventh Circuit, as elsewhere, “jurisdiction is determined at the time of removal,

and nothing filed after removal affects jurisdiction.” In re Burlington N. Santa Fe Ry. Co., 606

F.3d 379, 380 (7th Cir. 2010); accord Bullard, 535 F. 3d at 762. Thus, Plaintiffs’ post-removal

attempt to amend and retreat from their clear proposal in the Motion to Consolidate cannot defeat

federal jurisdiction. See, e.g., Altoum v. Airbus S.A.S., No. 10-CV-467, 2010 WL 3700819, at

*3-4 (N.D. Ill. Sept. 9, 2010) (affirming removal under CAFA and rejecting plaintiffs’ post-

removal attempt to dismiss 20 of 102 plaintiffs named in the removed complaint on the basis that

those 20 already were plaintiffs in another suit and were included in error, finding that CAFA

jurisdiction attached at “the moment [p]laintiffs filed a complaint that listed 102 plaintiffs” and

that subsequent amendments “cannot strip the district court of its jurisdiction”). Similarly, the

plain language of Plaintiffs’ Motion to Consolidate conferred federal jurisdiction under CAFA at

the time of removal, and Plaintiffs’ post-removal recasting of the subjective intent of their

motion cannot defeat jurisdiction in this Court.

2. Plaintiffs’ Argument that They Proposed Consolidation Solely for Pretrial Purposes Asserts an Exception to “Mass Action” Removal Under CAFA, and Plaintiffs Cannot Meet Their Burden of Showing that the Exception Applies.

CAFA defines “mass action” both affirmatively and by exception. That is, in addition to

providing that a “mass action” is “any civil action . . . in which monetary relief claims of 100 or


- 11 -

more persons are proposed to be tried jointly,” the statute identifies specific exceptions that are

not a “mass action”:

As used in subparagraph (A), the term “mass action” shall not include any civil action in which—

(I) all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in the States contiguous to that State [“Subparagraph I”];

(II) the claims are joined upon motion of a defendant;

(III) all of the claims in the action are asserted on behalf of the general public (and not on behalf of individual claimants or members of a purported class) pursuant to a State statute specifically authorizing such action; or

(IV) the claims have been consolidated or coordinated solely for pretrial proceedings [“Subparagraph IV”].

28 U.S.C. § 1332(d)(11)(B)(ii).

Similarly, CAFA’s class action provisions identify a number of scenarios in which the

federal district courts do not exercise jurisdiction notwithstanding that a class action has been

proposed. For example, the “home-state” or “local controversy” exception of section 1332(d)(4)

applies when the circumstances of the proposed class action — as measured by the citizenship of

the members of the proposed plaintiff class(es), the citizenship of the target defendant(s), and the

geographic locus of the events or conduct at issue — do not reach much beyond the state in

which the action was originally filed. See 28 U.S.C. § 1332(d)(4). This “home-state” or “local”

exception to federal jurisdiction over putative class actions is analogous to the “local action”

exception to jurisdiction over a “mass action,” Subparagraph I, above, where all of the claims in

an action arise from an occurrence in the state in which the action was filed and resulted in

injuries in that state or its immediate neighbors. Compare 28 U.S.C. § 1332(d)(4)(A)(i)(III) (the

federal district court shall decline to exercise CAFA jurisdiction where, among other qualifiers,


- 12 -

“principal injuries resulting from the alleged conduct or any related conduct of each defendant

were incurred in the State in which the action was originally filed”) with 28 U.S.C.

§ 1332(d)(11)(B)(ii)(I) (no “mass action” jurisdiction where “all of the claims in the action arise

from an event or occurrence in the State in which the action was filed, and that allegedly resulted

in injuries in that State or in the States contiguous to that State”). Cases addressing the “home-

state” or “local controversy” exception to CAFA jurisdiction over class actions hold that the

party resisting removal bears the burden of establishing that the exception governs. For example,

in Hart v. FedEx Ground Package Sys., Inc., 457 F.3d 675 (7th Cir. 2006), the court held that

“the party seeking to take advantage of the home-state or local exception to CAFA jurisdiction

has the burden of showing that it applies.” Id. at 680.5

Of course, given the geographical reach of the Illinois Depakote Cases — the Plaintiffs

have been collected from more than three dozen states from coast to coast — the local

controversy exception of Subparagraph I is not directly relevant here, but the rule of the local

controversy cases assigning to plaintiffs the burden of demonstrating that the exception to

removal applies is instructive. Plaintiffs’ remand argument falls squarely within the potential

scope of Subparagraph IV, which excludes from the definition of “mass action” claims that have

been consolidated “solely for pretrial proceedings.” By analogy to the holding of Hart, if

Plaintiffs are to avoid the reach of this Court’s “mass action” jurisdiction, they bear the burden of

demonstrating that they proposed consolidation “solely for pretrial proceedings.” Clearly,

Plaintiffs cannot make that case; and if the relevant exception (i.e., Subparagraph IV) does not

apply, the general rule must: Plaintiffs proposed a “mass action.” 5 This assignment of the burden to the party resisting CAFA removal is consistent with the legislative history urging the narrow construction of the exceptions to CAFA jurisdiction in the federal courts. See supra pp. 4-5.


- 13 -

A similar principle prevailed in Blomberg v. Service Corp. International, 639 F.3d 761

(7th Cir. 2011), in which the district court remanded a proposed class action on the grounds that

the removing defendants failed to demonstrate that the amount in controversy exceeded the

$5 million aggregate applicable to CAFA cases. See id. at 762; 28 U.S.C. § 1332(d)(2). The

Seventh Circuit noted that “[t]he party seeking removal does not need to establish what damages

the plaintiff will recover, but only how much is in controversy between the parties. This burden

thus ‘is a pleading requirement, not a demand for proof.’” 639 F.3d at 763 (citing Brill v.

Countrywide Home Loans, Inc., 427 F.3d 446, 448 (7th Cir. 2005) and quoting Spivey v. Vertrue,

Inc., 528 F.3d 982, 986 (7th Cir. 2008) (citing Brill)).6 After acknowledging that the proponent

of CAFA jurisdiction must prove the jurisdictional facts by a preponderance of evidence, the

Seventh Circuit concluded that the district court required too much of the removing defendants,

holding as follows:

Once the proponent of federal jurisdiction has explained plausibly how the stakes exceed $5,000,000, the case belongs in federal court unless it is legally impossible for the plaintiff to recover that much. Although there certainly is more that SCI could have done, . . . we are satisfied that SCI provided plausible, good-faith estimates demonstrating how the stakes exceed $5,000,000.

Id. at 764 (emphasis added).

In these Depakote cases, the question is whether Plaintiffs proposed a “joint trial,” not the

amount of damages potentially at stake, but similar considerations apply by analogy. Plaintiffs

have not argued that the Illinois Supreme Court, invited to do so by Plaintiffs’ Motion to

Consolidate, was without the power to order that the Illinois Depakote Cases be tried jointly; nor,

in the face of Bullard, could Plaintiffs argue that it is impossible to interpret the language

6 The “pleading requirement” referenced in Blomberg and Spivey translates well into the scenario presented by Plaintiffs’ Motion to Consolidate, as to which the dispositive question is “what did the Plaintiffs propose?” – i.e., what did they “plead” – as opposed to “what relief did Plaintiffs ultimately secure?”.


- 14 -

Plaintiffs employed as requesting a joint trial. The only way that Plaintiffs might have rendered

that interpretation “impossible” was if they had availed themselves of Subparagraph IV and

explicitly requested that “the claims [be] consolidated or coordinated solely for pretrial

proceedings.” Plaintiffs, however, did not limit their proposed consolidation solely to pretrial

proceedings. As a result, when the Illinois Depakote Cases were removed to federal court, the

“jurisdictional facts” posited by Plaintiffs’ Motion to Consolidate were not “impossible,” and

Abbott’s removal of the resulting “mass action” was proper.

Moreover, Plaintiffs should not be heard to argue that the applicability of Subparagraph

IV cannot be determined without first permitting the Illinois Supreme Court to rule on Plaintiffs’

Motion to Consolidate and specify the extent of any consolidation granted. As emphasized

above, CAFA jurisdiction arose when Plaintiffs served their Motion to Consolidate on Abbott,

which triggered Abbott’s removal rights and set in motion the thirty-day deadline imposed by

28 U.S.C. § 1446(b). Axiomatically, this Court’s subject matter jurisdiction cannot depend upon

whether, when, and how the Illinois Supreme Court might respond to Plaintiffs’ “mass action”

proposal. If, hypothetically, and prior to removal, the Illinois Supreme Court had granted in part

Plaintiffs’ Motion by ordering consolidation solely for pretrial proceedings, Subparagraph IV

would have foreclosed removal on CAFA grounds. But that is not what happened, and Abbott

was not obliged to run the risk that the Illinois Supreme Court might have ordered the full extent

of consolidation that Plaintiffs requested more than thirty days after the “mass action” was

proposed, resulting in the very form of abusive proceeding CAFA was enacted to prevent — an

irremovable quasi-class action with nationwide impact pending before a state court judge of

Plaintiffs’ choosing.


- 15 -

Plaintiffs could have easily enough availed themselves of Subparagraph IV, but they did

not do so prior to removal, and it is now too late. In In re Shell Oil Co., 970 F.2d 355 (7th Cir.

1992), the Seventh Circuit considered whether the plaintiff’s complaint had been properly

removed where the amount in controversy was not expressly stated. Reversing the district

court’s order remanding the case, the appellate court established a bright-line rule: “Litigants

who want to prevent removal must file a binding stipulation or affidavit with their complaints;

once a defendant has removed the case, . . . later filings [are] irrelevant.” 970 F.2d at 356

(citation omitted). Plaintiffs insist that they did not intend to invoke this Court’s “mass action”

jurisdiction, but they did not disclaim the circumstances giving rise to that jurisdiction in their

Motion to Consolidate. Indeed, instead of expressly limiting consolidation to pretrial

proceedings, as the rule of Shell Oil would require by analogy, Plaintiffs repeatedly requested

consolidation of proceedings “through trial.” Plaintiffs were, as they claim, “masters” of their

own papers, and they failed to invoke the exception that would have avoided a “mass action.”

3. Plaintiffs’ Disparaging Characterization of Their Proposed Consolidation Does Not Place That Proposal Beyond the Reach of CAFA Jurisdiction.

Plaintiffs further declare that their Motion to Consolidate could not have been a proposal

that their claims be tried jointly, because any such proposal is “absurd”: “[A]lthough the cases

certainly can be consolidated for many reasons, the idea that this consolidation would encompass

a single ‘mass action’ trial is absurd.” (Mot. Remand at 11.) Whether the joint trial that

Plaintiffs proposed is “absurd” is not germane to the question of this Court’s CAFA jurisdiction.

Indeed, Abbott agrees that such a proposal should not ultimately be accepted, but the ultimate

disposition of Plaintiffs’ proposal is not determinative. This Court’s jurisdiction hinges on what

Plaintiffs proposed, and what Plaintiffs proposed fits squarely within CAFA’s definition of a

“mass action.”


- 16 -

Moreover, Plaintiffs have, indisputably, and as a matter of law, proposed what they now

label “absurd.” The Woolfolk case removed from St. Clair County Circuit Court to this Court

joined in a single complaint the claims of ninety-three plaintiffs from at least twenty-four

different states. Bullard teaches that the joining of these claims in a single complaint was, as a

matter of law, a request that the claims be tried together. Of course, modestly increasing that

number of plaintiffs would be expected to incrementally compound the challenges of any such

joint trial; but, if a 100-plaintiff “mass action” is “absurd,” a joint trial of the claims asserted by

ninety-three plaintiffs is only less “absurd” by the slightest degree. Similarly, Plaintiffs argue

that pharmaceutical products cases are not amenable to resolution by mass trial. (See Mot.

Remand at 11.) Again, Abbott agrees; but the fact of the matter is that Plaintiffs’ multi-plaintiff

complaints propose joint trials of pharmaceutical products cases.7 “Absurd” or not, a

pharmaceutical products “mass action” is what Plaintiffs proposed, and that proposal conferred

CAFA jurisdiction on this Court.

D. Plaintiffs’ Filing of Their Actions as Ten Separate Cases Does Not Preclude CAFA “Mass Action” Jurisdiction Over the Proposed Consolidation.

Plaintiffs’ assertion that “[t]he law is therefore settled that a group of lawsuits, even if

related or based on common factual or legal issues, cannot be combined for purposes of reaching

CAFA’s ‘100 or more persons’ requirement” (see Mot. Remand at 6 (citing Anderson, 610 F.3d

at 393), again misstates the law. Neither the Seventh Circuit’s opinion in Anderson, nor any

other case of which Abbott is aware, reaches that conclusion. Instead, all of the cases cited by

Plaintiffs on this point merely confirm what CAFA expressly provides – that a “mass action”

7 The Anderson case, on which Plaintiffs rely, was a pharmaceutical products suit involving multiple actions in Illinois with, collectively, over 150 plaintiffs. The Seventh Circuit observed in Anderson that a request by plaintiffs to try their claims jointly seemed “possible,” especially given the “similarity of their claims.” 610 F.3d at 394. Abbott takes issue with that proposition, but not to the point of characterizing the Seventh Circuit’s view as “absurd.”


- 17 -

does not include claims “joined upon motion of a defendant,” 28 U.S.C. § 1332(d)(11)(B)(ii)(II)

– or the conclusion that the Seventh Circuit has reached by extension – that a court cannot create

a “mass action” by sua sponte consolidation of claims, see, e.g., Koral v. Boeing Co., 628 F.3d

945, 946-47 (7th Cir. 2010). Neither of those scenarios is at issue where, as here, Plaintiffs have

themselves proposed consolidation, and Seventh Circuit cases contemplate that the consolidation

of multiple claims filed originally as separate suits might well give rise to a CAFA removal. See,

e.g., Anderson, 610 F.3d at 394 (“Of course, subsequent action by the plaintiffs in state court

might render these claims removable.”); cf. Bullard, 535 F.3d at 762 (“[L]itigation counts as a

class action if it is either filed as a representative suit or becomes a ‘mass action’ at any time.”).

Indeed, if plaintiffs could avoid CAFA’s removal provisions by the simple artifice of filing

multiple/separate ninety-nine-plaintiff suits and thereafter moving to consolidate them to be tried

jointly – the blueprint Plaintiffs have followed in the Illinois Depakote Cases – CAFA’s “mass

action” provision would be nullified. Congress could not have intended that legislation enacted

“to expand substantially federal court jurisdiction” would be so easily circumvented. See, e.g.,

Zbaraz v. Madigan, 572 F.3d 370, 386-87 (7th Cir. 2009) (“Just as we will not reach for an

unconstitutional interpretation of statutory language, neither will we construe a statute in a way

that leads to absurd results. . . . An interpretation that flies in the face of a statute’s purpose . . .

leads to an absurd result.”).

E. Abbott’s Notice of Removal Was Timely.

For almost the entirety of Plaintiffs’ Motion to Remand, Plaintiffs argue that Abbott’s

removal was premature because Plaintiffs did not propose that the Illinois Depakote Cases be

tried jointly. In the closing pages of their Motion, however, Plaintiffs reverse course and contend

that the removal of the four actions from Cook County, in addition to the six cases from St. Clair

and Madison Counties, came more than thirty days after removal was triggered and was


- 18 -

therefore untimely. (See Mot. Remand at 13–14.) According to Plaintiffs, a “mass action” was

created on October 17, 2011, when the Cook County Depakote cases, on the circuit court’s own

motion, were reassigned by the Presiding Judge of the Law Division for all purposes to a single

circuit court judge. Plaintiffs’ argument merely reinforces the conclusion that Plaintiffs’ Motion

to Consolidate created a removable “mass action.”

The October 17 Order of the Circuit Court of Cook County (the “Cook County Order”)

was not a proposal that the Cook County Depakote cases be consolidated for trial or tried jointly.

The Cook County Order simply reassigned the individual cases pending in Cook County to

Judge Pierce so that they might be “manage[d] in an organized and uniform fashion.” (See Ex. E

to Pls.’ Mot. Remand.) The fact that “these assignments” were made for all purposes, including

trial, means exactly what it says and nothing more — that each case was assigned to Judge Pierce

“for all purposes, including trial . . . .” Nowhere in the Cook County Order is there language

about consolidated trial proceedings.

Second, a court cannot create “mass action” jurisdiction under CAFA. The Seventh

Circuit has observed:

A state court’s deciding on its own initiative to conduct a joint trial would not enable removal . . . . That would not be a proposal [under 1332(d)(11)]; and anyway the aim of the removal provision is to prevent plaintiffs from trying to circumvent the Class Action Fairness Act by bringing a class action as a mass action.

Koral, 628 F.3d at 946-47; see also Lecker v. Bayer Corp., No. 09-991, 2010 WL 148627, at *3

(S.D. Ill. Jan. 13, 2010) (“The Court notes that its conclusion that this case is not a mass action

under the CAFA is supported also by a number of traditional rules governing the exercise of

federal subject matter jurisdiction on removal . . . [one of which was that it] is the well settled

doctrine that only a voluntary act of a plaintiff can make a case removable to federal court”).

The Cook County Order states that the court ordered the reassignments “on its own motion.”


- 19 -

(See Ex. E to Pls.’ Mot. Remand.) Therefore, the Cook County Order was not a “proposal” for

CAFA “mass action” purposes.8

Finally, Plaintiffs’ timeliness argument, although an inadequate ground for remand,

reinforces that Plaintiffs’ Motion to Consolidate proposed a “mass action”: If Plaintiffs are

willing to maintain that the Cook County Order, without using the terms “consolidation” or

“consolidated,” created a “mass action” (albeit, a “mass action” not proposed by the Plaintiffs), it

stands to reason that – their protests to the contrary notwithstanding – Plaintiffs must also regard

the Motion to Consolidate as proposing a “mass action.” That is, if, as Plaintiffs have argued,

the mere reassignment of cases “for all purposes, including trial” amounts to an order that the

cases be “tried jointly,” the alternative contention that the proposed “consolidation” of their cases

“for proceedings through trial” somehow amounts to something less is patently defective.

CONCLUSION

Plaintiffs created a CAFA “mass action” when their Motion to Consolidate and Transfer

Pursuant to Supreme Court Rule 384 proposed that the claims of the 410+ Illinois Depakote

plaintiffs be tried jointly on the ground that those claims involve common questions of law or

fact. Plaintiffs may now regret taking that step, but they cannot withdraw their proposal or in

any way divest this Court of the subject matter jurisdiction that Abbott invoked when it removed

8 In any event, Plaintiffs’ argument regarding the effect of the Cook County Order on the Southern Illinois Depakote cases is, literally and figuratively, misplaced. The Cook County Order addresses only cases then pending in Cook County, and makes no mention of the cases pending in other Illinois circuit courts. Plaintiffs cite no authority for the illogical proposition that the Cook County Order was a proposal that the Depakote cases pending in St. Clair County and Madison County be tried jointly with the Cook County cases, and therefore that Abbott had thirty days from October 7, 2011 to remove the Southern Illinois Depakote Cases to this Court pursuant to CAFA. Even if the Cook County Order somehow effected a “mass action” comprised of the Cook County cases, any such “mass action” would not have encompassed the cases now pending before this Court.


- 20 -

the Depakote Cases under CAFA’s “mass action” provision, 28 U.S.C. § 1332(d)(11). For all of

the reasons set forth above, Plaintiffs’ Motion to Remand should be denied.

Dated: March 22, 2012 Respectfully submitted, ABBOTT LABORATORIES INC. By: s/ Kathleen B. Barry ______________________ James F. Hurst Kathleen B. Barry WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL 60601 (312) 558-5600 Paul F. Strain Stephen E. Marshall Michael B. MacWilliams Jason C. Rose VENABLE LLP 750 East Pratt Street, Suite 900 Baltimore, MD 21202 (410) 244-7400 Attorneys for Defendant Abbott Laboratories Inc.


CERTIFICATE OF SERVICE

I hereby certify that on March 22, 2012, I separately served a copy of the foregoing

Opposition to Plaintiffs’ Motion to Remand upon counsel of record listed below via first-class

mail, with proper postage prepaid:

Ralph D. McBride Bracewell & Giuliani LLP 711 Louisiana Street, Suite 2300 Houston, TX 77002-2781 [email protected] [email protected]

Robert L. Salim Attorney at Law 1901 Texas Street Natchitoches, LA 71457 [email protected]

Jeffrey D. Meyer The Meyer Law Firm, P.C. 510 Bering Drive, Suite 300 Houston, TX 77057 [email protected]

William M. Audet Audet & Partners, LLP 221 Main Street, Suite 1460 San Francisco, CA 94105 [email protected]

Tommy Fibich Fibich Hampton & Leebron LLP 1401 McKinney, Suite 1800 Five Houston Center Houston, TX 77010 [email protected]

Lloyd M. Cueto Law Office of Lloyd M. Cueto 7110 West Main Street Belleville, IL 62223 [email protected]

John T. Boundas Williams Kherkher Hart Boundas, LLP 8441 Gulf Freeway, Suite 600 Houston, TX 77017 [email protected]

Christopher Cueto Law Office of Christopher Cueto, Ltd. 7110 West Main St. Belleville, IL 62223 [email protected]

s/ Kathleen B. Barry _____________________________ One of the Attorneys for Defendant


Documents

IN THE UNITED STATES DISTRICT COURT FOR THE …clear that it is a plaintiffs’ mere proposal of a “mass action,” and not the endorsement by a court of that proposal, that triggers