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Tanoh v. Dow Chemical Company (9th Cir. 2009) 561 F.3d 945.

This was one of seven cases filed by the Metzger Law Group on behalf of 664 plantation workers in the Ivory Coast who became sterile as a result of exposure to dibromochloroproprane (DBCP), a pesticide which was used to kill nematodes that injure banana and pineapple plants.  The Metzger Law Group filed the seven cases in Los Angeles Superior Court, naming fewer than 100 plaintiffs in each lawsuit.  The purpose of segregating the plaintiffs into seven cases of fewer than 100 each was to avoid removal to federal court under the Class Action Fairness Act (CAFA) of 2005.  Dow Chemical Company, the manufacturer of DBCP, and the other defendants nevertheless removed the case to federal court, arguing that removal under CAFA could not be circumvented by segregating the claims of the sterile workers into seven separate lawsuits.  CAFA provides for removal not only of class actions but also of “mass actions,” defined as civil lawsuits seeking monetary relief on behalf of 100 or more people. 28 U.S.C. § 1332(d)(11)(B)(i). CAFA specifically provides that a mass action does not include “any civil action in which ... (II) the claims are joined upon motion of a defendant; ... or (IV) the claims have been consolidated or coordinated solely for pretrial proceedings.” 28 U.S.C. § 1332(d)(11)(B)(ii)).  The district court remanded the lawsuits to state court sua sponte, “holding that defendants had failed to show that the California companies were fraudulently joined and that removal under CAFA was not proper because each of the actions involved fewer than the one hundred plaintiff statutory minimum for a ‘mass action’ under CAFA.” Id. In so holding, the federal court rejected defense arguments that plaintiffs “had ‘strategically sought to avoid federal jurisdiction’ by filing several separate state court actions in groups fewer than one hundred” because “CAFA specifically excludes actions in which claims have been ‘joined upon motion of a defendant’ from the definition of a ‘mass action,’” id. The Ninth Circuit reversed on the ground that the lower court “exceeded its authority by ordering a remand sua sponte.”  On remand, plaintiffs moved for remand and the district court granted the motion on the same grounds as before.  Dow again sought and received leave to appeal, and the Ninth Circuit consolidated all seven appeals sua sponte.

The Court stated the issue for decision as follows: “We are asked to decide whether seven individual state court actions, each with fewer than one hundred plaintiffs, should be treated as one ‘mass action’ eligible for removal to federal court under the Class Action Fairness Act of 2005.   The Court noted that CAFA extends federal removal jurisdiction only to civil 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.”  Id., citing 28 U.S.C. § 1332(d)(11)(B)(i).  The Court held that “[a]s neither the parties nor the trial court has proposed jointly trying the claims of one hundred or more plaintiffs in this case, we affirm the district court's order remanding each of the seven individual actions to state court.”  The Court observed: “By its plain terms, § 1332(d)(11) therefore does not apply to plaintiffs' claims in this case, as none of the seven state court actions involves the claims of one hundred or more plaintiffs, and neither the parties nor the trial court has proposed consolidating the actions for trial.”  Finally, the Court rejected Dow’s argument that the removals fell within the scope of CAFA because plaintiffs had sought to “game” the system by filing suit covering 664 people in seven separate actions rather than a single action, because CAFA expressly allows plaintiffs’ counsel to do so.



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