In the

United States Court of Appeals

For the Seventh Circuit

No. 10-8003

RONALD ANDERSON, et al.,

Plaintiffs-Respondents,

v.

BAYER CORPORATION, BAYER HEALTHCARE LLC,

and BAYER HEALTHCARE PHARMACEUTICALS, INC.,

Defendants-Petitioners.

Petition for Leave to

Appeal from the United States District Court

for the Southern District of Illinois.

No. 09-cv-00988—G. Patrick Murphy, Judge.

No. 10-8004

DON JUAN BROWN, et al.,

Plaintiffs-Respondents,

v.

BAYER CORPORATION, BAYER HEALTHCARE LLC,

and BAYER HEALTHCARE PHARMACEUTICALS, INC.,

Defendants-Petitioners.

Petition for Leave to 

Appeal from the United States District Court

for the Southern District of Illinois.

No. 09-cv-00989—G. Patrick Murphy, Judge.
2 Nos. 10-8003, 10-8004, 10-8005 & 10-8006

No. 10-8005

FREDERICK BANCROFT, et al.,

Plaintiffs-Respondents,

v.

BAYER CORPORATION, BAYER HEALTHCARE LLC,

and BAYER HEALTHCARE PHARMACEUTICALS, INC.,

Defendants-Petitioners.

Petition for Leave to

Appeal from the United States District Court

for the Southern District of Illinois.

No. 09-cv-00990—G. Patrick Murphy, Judge.

No. 10-8006

FRANCIS G. LECKER, et al.,

Plaintiffs-Respondents,

v.

BAYER CORPORATION, BAYER HEALTHCARE LLC,

and BAYER HEALTHCARE PHARMACEUTICALS, INC.,

Defendants-Petitioners.

Petition for Leave to

Appeal from the United States District Court

for the Southern District of Illinois.

No. 09-cv-00991—G. Patrick Murphy, Judge.

SUBMITTED FEBRUARY 22, 2010—DECIDED JUNE 22, 2010
Nos. 10-8003, 10-8004, 10-8005 & 10-8006 3

Before FLAUM, MANION, and EVANS, Circuit Judges.

FLAUM, Circuit Judge. Defendants (collectively referred

to as “Bayer”) have petitioned for leave to appeal the

remand orders issued by the district court in the four

above-captioned cases. In five separate, mostly identical

complaints in state court, plaintiffs sued Bayer for

personal injuries they allege were caused by Trasylol, a

prescription medication manufactured by Bayer. Defendants removed, invoking the “mass action” provision of

the Class Action Fairness Act (“CAFA”), which allows

the removal of cases joining the claims of at least

100 plaintiffs that otherwise meet CAFA’s jurisdictional

requirements. The district court remanded four of the

five cases because they contained fewer than 100 plaintiffs

(in the fifth case plaintiffs meant to include 99 plaintiffs,

but actually named two-coexecutors in the same paragraph

for a total of 100 plaintiffs). Bayer asks us to grant its

petitions for review in the four cases remanded to state

court and hold that (1) plaintiffs cannot avoid federal

diversity jurisdiction by carving their filings into five

separate pleadings, and (2) there is diversity jurisdiction

over most plaintiff’s claims because the claims of the

small number of non-diverse plaintiffs were fraudulently misjoined and should be severed. Because we

agree with the district court on the first question, we conclude that we are without jurisdiction to reach the second.

In August and September of 2009, plaintiffs’ counsel

filed in St. Clair County, Illinois, claims on behalf of

57 unrelated plaintiffs, dividing the claims between

four virtually identical complaints, using verbatim lan-
4 Nos. 10-8003, 10-8004, 10-8005 & 10-8006

Because it joined the claims of 100 or more plaintiffs, Gilmore 1

v. Bayer Corp., No. 09-986-GPM (S.D. Ill.), was not remanded

by the district court and thus is not part of this appeal.

guage, alleging that the plaintiffs (or their decedents)

suffered injuries as a result of being administered

Trasylol during heart surgery. Bayer removed, invoking

the district court’s diversity jurisdiction over the diverse

plaintiffs’ claims by arguing that the few non-diverse

plaintiffs had been fraudulently misjoined. The district

court remanded sua sponte.

After remand to St. Clair County, plaintiffs’ counsel

amended the complaints to add 111 new plaintiffs, spread

across the four existing suits. This resulted in a total of

100 plaintiffs in Gilmore, 5 in Brown, 45 in Bancroft, and 1

18 in Lecker. Plaintiffs’ counsel also filed a fifth complaint,

Anderson, naming three plaintiffs, one of whom was nondiverse. Defendants once again removed. The district

court remanded Bancroft, Brown, Lecker, and Anderson,

rejecting defendants’ argument that they should be

treated as a single mass action and defendants’ alternative

argument that the non-diverse plaintiffs should have

been severed from the action as fraudulently misjoined.

Defendants then filed this petition for permission to

appeal under 28 U.S.C. § 1453(c), a provision of CAFA that

creates an exception for class actions to the general

rule that remand orders are not reviewable. See id.; 28

U.S.C. § 1447(d).

Bayer first argues that plaintiffs’ cases meet CAFA’s

definition of a “mass action” and thus the district court
Nos. 10-8003, 10-8004, 10-8005 & 10-8006 5

erred in remanding the cases. 28 U.S.C. § 1332(d)(11)(B)(i)

defines a mass action as “any civil action . . . in which the

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.”

Under CAFA, such mass actions “shall be deemed to be

a class action” removable to federal court, so long as

CAFA’s other jurisdictional requirements are met. Id.

§ 1332(d)(11)(A). There is no dispute that the other requirements—amount in controversy and minimal

diversity—are met in each of the four cases that Bayer

appealed.

Of course, none of the instant four cases actually involve

the claims of more than 100 plaintiffs. Bayer, however,

urges us not to place “too much weight on form” in the

CAFA context. See Marshall v. H&R Block Tax Servs., Inc.,

564 F.3d 826, 828 (7th Cir. 2009). They argue that plaintiffs’

five separate pleadings are a transparent attempt to

circumvent CAFA, and, as such, should be treated as a

single mass action. In support of this argument, they

cite Freeman v. Blue Ridge Paper Products, Inc., 551 F.3d 405

(6th Cir. 2008). In Freeman, the Sixth Circuit considered

an appeal from the remand of five related cases

that had separated the plaintiffs’ claims for nuisance

into six-month periods in order to avoid meeting CAFA’s

$5 million jurisdictional amount. Id. at 407. The Sixth

Circuit found that “there was no colorable reason for

breaking up the lawsuit in this fashion, other than to

avoid federal jurisdiction,” and thus held that the

damages sought in each suit “must be aggregated” for

the purpose of determining whether the amount-incontroversy requirement had been met. Id.
6 Nos. 10-8003, 10-8004, 10-8005 & 10-8006

Freeman, however, did not address the mass action

provision of CAFA. This distinction is important because

CAFA states that “the term ‘mass action’ shall not

include any civil action in which the claims are

joined upon motion of a defendant.” 28 U.S.C.

§ 1332(d)(11)(B)(ii)(II). By excluding cases in which

the claims were consolidated on a defendant’s motion,

Congress appears to have contemplated that some cases

which could have been brought as a mass action would,

because of the way in which the plaintiffs chose to structure their claims, remain outside of CAFA’s grant of

jurisdiction. This is not necessarily anomalous; after all,

the general rule in a diversity case is that “plaintiffs as

masters of the complaint may include (or omit) claims

or parties in order to determine the forum.” See Garbie v.

DaimlerChrysler Corp., 211 F.3d 407, 410 (7th Cir. 2000)

(citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)).

The only appellate court to have addressed an argument similar to Bayer’s has rejected its approach. In Tanoh

v. Dow Chemical Co., 561 F.3d 945 (9th Cir. 2009), the Ninth

Circuit considered whether seven similar cases, each

involving fewer than 100 plaintiffs, could be treated as a

single mass action for CAFA purposes. The Tanoh court

began by noting that under the plain language of CAFA,

none of the state court cases were a mass action because

they contained fewer than 100 plaintiffs each. Id. at 953.

The court went on to reject the defendant’s structuring

argument, relying on § 1332(d)(11)(B)(ii)(II) to conclude

that “Congress appears to have foreseen the situation

presented in this case and specifically decided the issue

in plaintiffs’ favor.” Id. at 953. Like Bayer here, Dow never
Nos. 10-8003, 10-8004, 10-8005 & 10-8006 7

formally moved to consolidate the state court cases. The

Ninth Circuit concluded that “[t]he absence of a

formal motion cannot blink away the fact that Dow, the

defendant, is asking us to consolidate separate actions

for purposes of applying the ‘mass action’ provision.” Id.

at 954.

We agree with our colleagues on the Ninth Circuit. The

mass action provision gives plaintiffs the choice to file

separate actions that do not qualify for CAFA jurisdiction. The instant cases contain fewer than 100 plaintiffs

and thus are not removable under the plain language of

the statute. Bayer’s argument that these separate lawsuits be treated as one action is tantamount to a request

to consolidate them—a request that Congress has

explicitly stated cannot become a basis for removal as

a mass action.

Of course, subsequent action by the plaintiffs in state

court might render these claims removable. See Bullard

v. Burlington Northern Santa Fe Railway Co., 535 F.3d 759,

762 (7th Cir. 2008) (holding that a case in state court may

become a removable mass action “long after filing” if the

claims of more than 100 plaintiffs are subsequently proposed to be tried jointly). In Bullard, we specifically described as removable a hypothetical set of “15 suits” with

“10 plaintiffs each” that are proposed to be tried together. Id. We also noted that the § 1332(d)(11) extended 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. Id. Such a request from the plaintiffs seems
8 Nos. 10-8003, 10-8004, 10-8005 & 10-8006

Like the Ninth Circuit in Tanoh, we express no opinion as to 2

whether a state court’s sua sponte joinder of claims might

allow a defendant to remove separately filed state court claims

to federal court as a single “mass action.” 561 F.3d at 956.

possible (perhaps even likely) at some future point in

these cases, given the similarity of their claims. But it is

not yet a certainty, and Congress has forbidden us from

finding jurisdiction based on Bayer’s suggestion that the

claims be tried together. So long as plaintiffs (or perhaps

the state court) do not propose to try these cases

jointly in state court, they do not constitute a mass

action removable to federal court.2

Finding no federal jurisdiction under CAFA, we turn

to defendants’ alternative argument for diversity jurisdiction, fraudulent misjoinder. Before reaching the

merits of this argument, however, we must consider

plaintiffs’ argument that we are without appellate jurisdiction to hear it.

Typically, federal courts of appeal are barred from

reviewing district court orders remanding removed

cases to state court. See 28 U.S.C. § 1447(d). However, an

exception exists when a party appeals “from an order

granting or denying a motion to remand a class action

to the State court from which it was removed.” 28 U.S.C.

§ 1453(c). In Brill v. Countrywide Home Loans, Inc., 427

F.3d 446 (7th Cir. 2005), we held that “[b]ecause

§ 1453(c)(1) permits appellate review of remand orders

‘notwithstanding section 1447(d),’ we are free to consider

any potential error in the district court’s decision, not
Nos. 10-8003, 10-8004, 10-8005 & 10-8006 9

just a mistake in application of [CAFA].” Id. at 451-52.

Plaintiffs do not address Brill, which at first glance

might appear to control here.

We have, however, an independent duty to examine

the basis for our jurisdiction, and this case differs from

Brill in one important respect. In Brill, there was never

any dispute about whether the state court case was a

class action. Instead, we were confronted with both

CAFA and non-CAFA theories of federal subject-matter

jurisdiction over a particular class action, and concluded that we had the jurisdiction to address both arguments. 427 F.3d at 451-52. Here, however, we have concluded that the remanded cases do not meet CAFA’s

definition of a class action, because they are not mass

actions as defined in the statute. From the plain

language of § 1453(c), which extends appellate jurisdiction only to remand orders for “class actions” as defined

in CAFA, it follows that we lack jurisdiction to proceed

further. Because the district court properly concluded

that the above-captioned cases were not mass actions, we

have no jurisdiction to hear an appeal from the remand

order.

Defendants’ petition for leave to appeal under 28 U.S.C.

§ 1453(c) is DENIED.

6-22-10