Plaintiffs’ Rule 384 Motion does not confer federal jurisdiction; (5) any proposal for a
mass trial was not unequivocal, and any doubt as to a proposal for a mass trial should be
resolved in favor of remand; and (6) the removal is untimely. (Mot. at 6-14.)

In support of their Motion for Remand, Plaintiffs argue that CAFA cases imposed
a strong presumption in favor of remand and that Abbott bears the burden of
demonstrating the requirements for removal. (Mot. at 2-3.) While it is correct that
Abbott bears the burden of demonstrating the existence of federal jurisdiction, in cases
involving CAFA, there is not a presumptive preference for remand. The Seventh Circuit
has held that under CAFA, there is no presumption against removal, stating that CAFA
does not “disfavor[] removal of larger-stakes, multi-state class actions.” Back Doctors
Ltd. v. Metropolitan Property and Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011). The
legislative history of CAFA supports the concept of its expansion of federal jurisdiction.
See Westerfeld v. Independent Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010),
(quoting S. Rep. No. 109-14, at 43 (2005) reprinted in 2005 U.S.C.C.A.N. 3, 41).
“Overall, [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. Considering the expansive scope of CAFA, particularly in light of the legislative
history, it is clear there is no definite presumption in favor of remand.

The basis for Abbott’s removal under CAFA was Plaintiffs’ Rule 384 Motion to
Consolidate and Transfer. Illinois Supreme Court Rule 384(a) provides:

When civil actions involving one or more common
questions of fact or law are pending in different judicial


argument, Plaintiffs present the Circuit Court of Cook County Order, signed by Presiding
Judge William Maddux, dated October 17, 2011, which reassigns all related cases
removed here from Cook County to Judge Daniel Pierce on the court’s own motion.
(Mot., Ex. E.) Plaintiffs argue that if the phrase “through trial” creates federal
jurisdiction under CAFA, then federal jurisdiction was granted by the language of this
October 17 order. (Mot. at 14.) This argument of untimeliness also fails because a court
cannot create “mass action” jurisdiction under CAFA. See Koral v. Boeing Co., 628 F.3d
945, 947 (7th Cir. 2011) (holding “that [a] state court’s deciding on its own initiative to
conduct a joint trial would not enable removal.”) The Cook County Court’s sua sponte
motion to reassign all the cases to be heard by one judge did not create federal
jurisdiction under CAFA; only a motion by the plaintiff, proposing consolidation for trial,
would establish this jurisdiction. The Plaintiffs’ Rule 384 Motion intended to do exactly
that and did establish federal jurisdiction under CAFA. Therefore, Abbott’s Notice of

Removal upon receiving notice of the Rule 384 Motion was proper and timely.

10


Plaintiffs’ Proposed Consolidation Created a Mass Action Under CAFA

Plaintiffs’ primary argument is that the underlying actions do not constitute a
mass action for purposes of CAFA and, specifically, that Plaintiffs never proposed a joint
trial. However, the language chosen in their Rule 384 Motion, as explained above, is
directly contrary to this assertion. In support of their position, Plaintiffs rely on the
Seventh Circuit’s opinion in Anderson, where the court denied the creation of a mass
action under CAFA as proposed by the defendant, finding that where the plaintiffs
specifically avoided consolidation of the underlying cases, no federal jurisdiction existed
under CAFA. 610 F.3d at 393-94. “Congress has forbidden us from finding jurisdiction
based on [Defendant]’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.” 610 F.3d at 394 (emphasis
added). Anderson is readily distinguishable from the Plaintiffs’ case because, here, the
Plaintiffs did specifically propose consolidation in their Rule 384 Motion.

A closer analogy to the present case is found in Bullard v. Burlington Northern
Santa Fe Ry. Co., 535 F.3d 759, 761 (7th Cir. 2008) (Bullard). Bullard also involved an
action filed in Cook County and removed to the Northern District of Illinois under
CAFA. The Plaintiffs in Bullard moved for remand; the district court denied their
motion, and the Seventh Circuit affirmed this denial. Jd. The Seventh Circuit explained
that in determining if an action can be characterized as a mass action, “[t]he 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.” Bullard, 535 F.3d at


circuits, and the supreme court determines _ that

consolidation would serve the convenience of the parties

and witnesses and would promote the just and efficient

conduct of such actions, 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.
Plaintiffs state in their motion that “Consolidation will eliminate duplicative discovery
and pretrial litigation, prevent inconsistent pretrial and ¢rial rulings, and thereby promote
judicial efficiency. Further, consolidation will serve the serve [sic] convenience of the
parties and witnesses by allowing the parties to coordinate document discovery and a
single set of depositions of the key witnesses.” (Rule 384 Mot., { 2.) (emphasis added).
Moreover, in their memorandum supporting the consolidation motion, Plaintiffs argue
consolidation for “proceedings through ¢rial will prevent duplication and inconsistency in
discovery and court rulings, and will allow the parties to coordinate document discovery,
depositions, pretrial litigation, and trial.” (Rule 384 Mem. at 2.) (emphasis added).
Further advocating for the consolidation of the cases, Plaintiffs state: “Rule 384 provides
for the transfer of the related cases for trial or post-trial proceedings, and not solely for
pretrial proceedings.” (Rule 384 Mem. at 12.) (emphasis added) Plaintiffs’ Rule 384
Motion and supporting memorandum clearly intends to move the Illinois Supreme Court
to consolidate the 10 complaints for all purposes, including (as they specifically indicate)
for purposes of conducting a trial. Abbott, upon receiving notice of this Motion to

Consolidate, sought to have the case removed to federal court pursuant to CAFA.

(Notice of Removal, 4§ 12-13.)


removable to federal court.” Anderson, 610 at 394. However, as discussed above,
Plaintiffs, in their Rule 384 Motion, specifically sought coordination and consolidation of
the cases beyond preliminary and pretrial proceedings, and their Motion cannot
reasonably read as a request for consolidation only for pretrial proceedings. Therefore,
Plaintiffs’ attempt to characterize their Rule 384 Motion as something narrower than the
relief specifically sought is not persuasive.

Plaintiffs argue Abbott’s motion for removal was premature because it was “filed
before the cases have been consolidated.” (Mot. at 9.) Their position is in direct
contradiction with the language of CAFA and the removal statute, 28 U.S.C. § 1446.
Section 1446(b) requires a notice of removal to be filed “within 30 days after receipt by
the defendant, through service or otherwise, of a copy of an amended pleading, motion,
order or other paper from which it may first be ascertained that the case is one which is
or has become removable.” 28 U.S.C. § 1446(b)(3) (emphasis added). Abbott first
learned that the case was removable upon receipt of the Plaintiffs’ 384 Motion, which
proposed consolidation of the case for trial. (Notice of Removal at 4.) As CAFA triggers
federal jurisdiction when a joint trial is proposed, Abbott was obligated to file a notice of
removal within thirty days of Plaintiffs’ 384 Motion’s being filed, or Abbott may have
risked waiving its right to removal if it were to be required to wait for the Ilinois
Supreme Court to rule on the motion (which, to date, has not yet occurred). Therefore,
Abbott’s notice of removal was not premature.

Plaintiffs also argue in their motion that Defendant’s Notice of Removal came too

late and should therefore be denied as untimely. (Mot. at 13-14.) In support of this


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
J.B., a minor, by MONIQUE )
BENJAMIN, individually, and as parent —)
and next friend of J.B., et al., )
)
Plaintiffs, )
) Case No. 12-cv-385

v. )

) Judge John W. Darrah
ABBOTT LABORATORIES, INC., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs filed a Motion for Remand in this action, alleging Defendant,
Abbott Laboratories, Inc. (“Abbott”), failed to establish federal jurisdiction in removing
the case to federal court. For the reasons provided below, Plaintiffs’ request for remand
is denied.

BACKGROUND

This case involves four underlying state-court actions removed to this Court by
Abbott pursuant to 28 U.S.C. §§ 1332(d) and 1446. The underlying actions allege
“claims of children who developed severe birth defects as a result of their mothers’
ingestion of the prescription drug Depakote or related drugs during pregnancy.” (Mot.

for Remand at 3.) Depakote is an anti-epileptic drug marketed, promoted, and sold by

' The four cases removed from Cook County Circuit Court are: J.B., ef al. v.
Abbott Laboratories, Inc., Case No. 11-L-8510, with 47 plaintiffs; Murray, et al. v.
Abbott Laboratories, Inc., Case No. 11-L-12695, with 29 plaintiffs; Burks, et al. v. Abbott
Laboratories, Inc., Case No. 11-L-4045, with 2 plaintiffs; and Leal, et al. v. Abbott
Laboratories, Inc., Case No. 11-L-8508, with 49 plaintiffs.


CONCLUSION

The matter before the Court is a simple one: if the Plaintiffs unequivocally
proposed to have a consolidated, joint trial in their Rule 384 Motion, then CAFA was
triggered, and Abbott properly asserted the federal jurisdiction CAFA confers. Plaintiffs’
Rule 384 Motion demonstrates the Plaintiffs’ request was for a joint trial by considering

the very words the Plaintiffs chose in their motion. Plaintiffs’ attempt to recharacterize

Date: 35- -(2_

JOHN W. DARRAH
United States District Court Judge

ll


762 (emphasis added). As noted above, the Seventh Circuit reasserted this rationale in
Anderson, where the court affirmed a remand to state court on the basis that the
defendants could not suggest the claims be joined together to confer jurisdiction for
removal. Anderson, 610 F.3d at 394. The Anderson court cited Bullard, stating, “[w]e
also noted that the § 1332(d)(11) [provision] 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.” Jd. Provided the trial will have an
impact on the claims of the one hundred or more plaintiffs in the case at hand, federal
jurisdiction under CAFA is proper. It is insignificant to this analysis whether or not the
subsequent trial ends up employing a bellwether approach, pursuing the claims of only
one or a few plaintiffs. The federal jurisdiction is triggered under CAFA at the proposal
of a consolidated, or joint, trial. 28 U.S.C. § 1332(d)(11)(B)(i). Here, as set out above,
Plaintiffs’ Rule 384 Motion specifically proposed a consolidated trial, stating they sought
to “facilitate the efficient disposition of a number of universal and fundamental
substantive questions applicable to all or most Plaintiffs’ cases” by consolidating the
cases for purposes of pre-trial and trial proceedings. (Rule 384 Mem. at 14.)
Furthermore, the instant action does not fall into one of the four categories in
CAFA which identify specific exclusions to the “mass action” definition. The only
potentially relevant exclusion is the fourth, which provides that a mass action does not
include a civil action in which: “the claims have been consolidated or coordinated solely
for pretrial proceedings.” 28 U.S.C. § 1332(d)(11)(B)(ii). “So long as plaintiffs . . . do

not propose to try these cases jointly in state court, they do not constitute a mass action


established under CAFA, it cannot be lost by subsequent developments in the case.
Greenberger v. GEICO General Ins. Co., 631 F.3d 392, 396 (7th Cir. 2011) (citing
Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805, 806 (7th Cir. 2010)).
CAFA also specifically defines actions which would be excluded from the mass
action definition:
(1) 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 States
contiguous to that State;

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

(IID) 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.

28 U.S.C. § 1332(d)(11)(B)(ii). A party seeking remand has an obligation to show that
one of these CAFA exceptions applies. Appert, 673 F.3d at 618. However, plaintiffs are
permitted to structure their actions and claims in a way that avoid removal and remain
outside the CAFA grant of federal jurisdiction. Anderson v. Bayer Corp., 610 F.3d 390,
393 (7th Cir. 2010) (Anderson).
ANALYSIS

Plaintiffs present six separate arguments in their Motion for Remand: (1) the
underlying actions do not qualify as a single mass action under CAFA; (2) there was
never a proposal for a “joint trial,” as required by CAFA; (3) if a request for a joint trial

was made, it was not made to the trial court and therefore does not invoke CAFA; (4)


A federal district court is deemed to have original jurisdiction over a civil action arising
under United States law according to 28 U.S.C. § 1331.

For a case to be removed from state court to federal court, notice of removal must
be filed by the defendant within thirty days: (1) after the defendant receives a copy of the
initial pleading or (2) after the service of summons on the defendant, if the initial
pleading has then been filed in court and is not required to be served on the defendant,
whichever period is shorter. 28 U.S.C. § 1446(b). Furthermore, if the case is not
removable at the initial pleading stage, notice of removal may be filed thirty days after a
defendant receives notice that the case is one which may be removed. 28 U.S.C.

§ 1446(b)(3).

The Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d) governs the
removal of class actions and mass actions from state to federal court. CAFA has special
procedural and diversity requirements for removal. The party seeking removal “bears the
burden of establishing the general requirements of CAFA jurisdiction.” Appert v.
Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 618 (7th Cir. 2012) (Appert). Under
CAFA, parties must have minimal diversity, rather than complete diversity, as is usually
required. 28 U.S.C. § 1332(d)(2); see Illinois v. AU Optronics Corp., 794 F. Supp. 2d
845, 848 (N.D. Ill. 2011). Additionally, an action must qualify as a “class action” or
“mass action,” as defined by CAFA, to be removed. A mass action is defined by CAFA
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). Once federal jurisdiction is


Abbott. (/d. at 3-4.) At the time of Plaintiffs’ Motion for Remand, ten separate lawsuits
had been filed against Abbott relating to Depakote and birth defects: the above-
mentioned four cases in the Circuit Court of Cook County; five cases in the Circuit Court
of St. Clair County; and one case in the Circuit Court of Madison County. (Jd. at 4.)

On December 29, 2011, Plaintiffs filed a Motion to Consolidate and Transfer all
existing and future Illinois cases in the Supreme Court of Illinois, pursuant to Illinois
Supreme Court Rule 384. (/d. at 5.) Abbott opposed Plaintiffs’ Motion to Consolidate
and Transfer, and no ruling has been made by the Illinois Supreme Court on Plaintiffs’
Rule 384 Motion. (/d.)

Defendant removed the four Cook County cases to this Court; the other six cases
were removed to the Southern District of Illinois. (Def.’s Notice of Removal at ay
Plaintiffs here oppose Abbott’s removal of the four Cook County cases and seek to have
them remanded back to state court.

LEGAL STANDARD

Removal of this action was premised, in part, on 28 U.S.C. § 1441(a), which
provides: “any civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the defendant . . . to the

district court of the United States for the district . ..where such action is pending.”

? Plaintiffs also opposed the removal of the cases to the Southern District of
Illinois, and on April 17, 2012, Judge G. Patrick Murphy remanded the six cases in the
Southern District back to state court. On April 25, 2012, Abbott filed a petition for
permission to appeal in the Seventh Circuit pursuant to 28 U.S.C. § 1453(c), seeking a
review of the remand order.