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You’re all familiar with the adage, close only counts in horseshoes and hand grenades.  Maybe in darts too, but you get the point. More often than not when talking about the law – close doesn’t count.  Either a statute applies or it doesn’t.  Either you are liable or you’re not.  Either there’s federal jurisdiction or there’s not.  And, in today’s case, the answer was – there’s not.

The decision comes from the In re Darvocet, Darvon and Propoxyphene Products Liability Litigation, MDL 2226, 2013 U.S. Dist. LEXIS 105208 (E.D. Ken. Jul. 25, 2013) and addresses the definition of a mass action under CAFA.  If the litigation did in fact qualify as a mass action, it would be removal to federal court (assuming it also involved at least one diverse plaintiff and defendant and an amount in controversy greater than $5 million).  So, first a quick reminder of what a mass action is under CAFA:    “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).  Any kindergartner should be able to tell us whether the litigation involves at least 100 people.  The trickier part is whether the claims are “proposed to be tried jointly.”

Before we delve into the facts of the Darvocet decision, we want to remind you of a decision relied on heavily by the Darvocet defendants – In re Abbott Laboratories Inc., 698 F.3d 568 (7th Cir. 2012).  We posted on it here, but in summary, the plaintiffs in that case filed ten identical lawsuits naming hundreds of plaintiffs and then sought consolidation of the cases through trial.  The court rightfully thought that sounded like a proposal for a joint trial and denied plaintiffs’ motion to remand to state court.

The upshot of that decision is that since under CAFA a joint trial only need be “proposed,” even an implicit request by plaintiffs is enough to make the action removable.  And, since more often than not federal court is a more desirable location for our clients, in the wake of In re Abbott Laboratories, we counseled our readers (1) to know how the “mass action” part of CAFA works, and (2) to watch for this kind of thing (“implicit” mass trial proposals), and (3) pounce when it happens.  The Darvocet defendants pounced, but unfortunately they landed back in state court.

So how does In re Darvocet differ from In re Abbott Laboratories?  That brings us back to horseshoes and hand grenades – does plaintiffs’ consolidation request come close enough to be considered an implicit joint trial proposal?  The Darvocet plaintiffs – more than 100 in total on multiple multiple-plaintiff complaints — filed a Petition for Coordination in state court.  In re Darvocet, Darvon and Propoxyphene Products Liability Litigation, MDL 2226, 2013 U.S. Dist. LEXIS 105208 at *56.    Defendants argued that plaintiffs’ petition constituted a proposal for a joint trial.  Specifically, defendants argued that California law which provides for coordination of cases “for all purposes” and plaintiffs’ stated reason for coordination – “to avoid duplicate and inconsistent rulings, order, or judgments” — was an implicit joint trial proposal.  Id. at *62.  While certainly not a ringer, the court was unwilling even to call this one a leaner.  In fact, they said it wasn’t even in the pit.

While not completely disagreeing with the Seventh Circuit’s “implicit” approach, the Darvocet court held that “something more than a mere suggestion is required to support a finding that plaintiffs have proposed a joint trial.”  Id. at *63.  Since plaintiffs’ petition did not address the trial process and was largely focused on pre-trial matters, the court found that they had not implicitly or otherwise proposed a joint trial.  Id.

Defendants also argued that because plaintiffs’ petition did not specify that the consolidation was sought for pre-trial purposes only, that plaintiffs should be presumed to be seeking the “full scope of coordination allowable under California law,” which includes a joint trial.  Id. at *64.  On this point, the court, relying on different Seventh Circuit case law, held that whether something is to be considered a mass action is triggered by the plaintiffs’ actions, not the court’s.  So, the chance that the law would allow a joint trial is not enough.

When we posted about the In re Abbott Laboratories decision, we questioned whether this was simply a one-off issue created by over-reaching plaintiffs and something they could easily avoid in the future.  Whether the Darvocet plaintiffs were strategically thinking about CAFA removal when they drafted their Petition for Coordination we’ll never know.  What we think we do know is that for mass action removal to be successful you’ll need plaintiffs who are closer to explicit (e.g. more than 100 plaintiffs on a single complaint or a request for consolidation through trial) than implicit (e.g. simply requesting coordination) in proposing a joint trial.