United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-8031

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Dawn Atwell, et al.

lllllllllllllllllllllRespondents

v.

Boston Scientific Corporation

lllllllllllllllllllllPetitioner

___________________________

No. 13-8032

___________________________

Althea Evans, et al.

lllllllllllllllllllllRespondents

v.

Boston Scientific Corporation

lllllllllllllllllllllPetitioner

___________________________

No. 13-8033

___________________________

Laura Taylor, et al.

lllllllllllllllllllllRespondents
v.

Boston Scientific Corporation

lllllllllllllllllllllPetitioner

____________

 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________ 

 Submitted: September 20, 2013

 Filed: November 18, 2013

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Before WOLLMAN, LOKEN, and SHEPHERD, Circuit Judges.

____________

LOKEN, Circuit Judge.

In the Class Action Fairness Act of 2005 (“CAFA”), Congress permitted

removal from state to federal court of certain class actions, including “mass actions.” 

28 U.S.C. §§ 1332(d), 1453(a) and (b). “[T]he term ‘mass action’ means 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,” § 1332(d)(11)(B)(i), but does not include an action in which “the claims have

been consolidated or coordinated solely for pretrial proceedings,”

§ 1332(d)(11)(B)(ii)(IV). 

Groups of plaintiffs filed product liability actions in Missouri’s Twenty-Second

(City of St. Louis) Judicial Circuit against four manufacturers of transvaginal mesh

medical devices. Three groups included claims against Boston Scientific Corporation

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for alleged defects in its devices.1

 Each group comprised less than 100 plaintiffs. The

three groups filed similar motions proposing that the state court assign each group “to

a single Judge for purposes of discovery and trial.” After the motion hearing, Boston

Scientific removed the three cases to federal court. Two district judges granted

plaintiffs’ motions and remanded the cases to state court on the ground that no case

included more than 100 plaintiffs and plaintiffs had not proposed to the state court that

the actions be “tried jointly.” Boston Scientific petitions for permission to appeal,

arguing that the three groups of plaintiffs have proposed to try their cases jointly

within the meaning of 28 U.S.C. § 1332(d)(11)(B)(i), transforming their cases into a

single mass action subject to federal jurisdiction. Reviewing this issue de novo, see

Raskas v. Johnson & Johnson, 719 F.3d 884, 886 (8th Cir. 2013), we conclude we

have jurisdiction and, in each case, grant Boston Scientific leave to appeal and vacate

the order remanding the case to state court.

I. Two Jurisdictional Issues

A. Most orders remanding removed cases to state court are not appealable. 28

U.S.C. § 1447(d). CAFA created an exception to that rule, permitting a court of

appeals to review an order remanding a “class action,” including a mass action, “if

application [to appeal] is made . . . not more than 10 days after entry of the [remand]

order,” § 1453(c)(1). Atwell argues we have no jurisdiction because these cases are

not mass actions and therefore CAFA does not apply. This argument of course begs

the question. The issue presented on appeal is whether the three cases are a mass

action subject to federal jurisdiction under CAFA. If they are a mass action, then

CAFA confers appellate jurisdiction to correct the district court errors in declining to

accept federal jurisdiction. If they are not a mass action, then “we lack jurisdiction

1

Like the parties, we will refer to these actions individually by the names of the

first named plaintiffs, Dawn Atwell, Althea Evans, and Laura Taylor. 

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to proceed further.” Anderson v. Bayer Corp., 610 F.3d 390, 394 (7th Cir. 2010)

(emphasis added). 

B. Evans and Taylor argue that Boston Scientific failed to file timely notices

of removal. When a plaintiff’s initial pleading does not state a case that is removable

under CAFA -- which was true here because each case involves claims by fewer than

100 persons -- the defendant must file a notice of removal “within 30 days after

receipt by the defendant . . . 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). 

Evans and Taylor argue their state court motions for assignment to a single

judge gave sufficient notice the cases had become removable; therefore, Boston

Scientific’s notices of removal, filed nearly five months later, were untimely. We

disagree. The thirty-day time limit begins running when a plaintiff “explicitly

discloses” she is seeking a remedy that affords a basis for federal jurisdiction. 

Knudson v. Sys. Painters, Inc., 634 F.3d 968, 974 (8th Cir. 2011). Here, plaintiffs’

assignment motions attempted to limit their request to coordination of pretrial

proceedings, which would keep the cases outside the definition of a mass action. See

28 U.S.C. § 1332(d)(11)(B)(ii)(IV). Only when plaintiffs’ attorneys made clear the

extent of consolidation being sought at the state court motions hearing did Boston

Scientific have a basis for removal. These oral statements, made at a court hearing

and later transcribed, like deposition testimony, satisfy § 1446(b)(3)’s “other paper”

requirement. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 887 (9th Cir.

2010); Peters v. Lincoln Elec. Co., 285 F.3d 456, 465-66 (6th Cir. 2002).

II. The Merits

Although plaintiffs concede that their respective individual claims “involve

common questions of law or fact,” 28 U.S.C. § 1332(d)(11)(B)(i), state court plaintiffs

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with common claims against a common defendant may bring separate cases with

fewer than 100 plaintiffs each to avoid federal jurisdiction under CAFA -- unless their

claims are “proposed to be tried jointly.” See Romo v. Teva Pharm. USA, Inc., 731

F.3d 918, 922 & n.1 (9th Cir. 2013); Scimone v. Carnival Corp., 720 F.3d 876, 881-82

(11th Cir. 2013); Abrahamsen v. ConocoPhillips, Co., 503 F. App’x 157, 160 (3d Cir.

2012), cert. denied, 133 S. Ct. 1820 (2013); Anderson, 610 F.3d at 393-94; Tanoh v.

Dow Chem. Co., 561 F.3d 945, 953 (9th Cir.), cert. denied, 558 U.S. 934 (2009). That

proviso is the critical issue here -- did the distinct claims of these more than 100

plaintiffs, filed in the same court against the same defendant and asserting common

issues, become a single, removable mass action because plaintiffs proposed to try their

separate cases jointly?

In the Evans and Taylor cases, the district court concluded that Boston

Scientific’s removal “runs afoul of the clear statutory language, i.e., that there is a

single trial of 100 or more persons.” Like Judge Easterbrook in an early Seventh

Circuit CAFA case, we conclude that construing the statute to require a single trial of

more than 100 claims would render 28 U.S.C. § 1332(d)(11) “defunct”:

A proposal to hold multiple trials in a single suit . . . does not take the

suit outside § 1332(d)(11). . . . 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 . . . .

Bullard v. Burlington N. Santa Fe Ry., 535 F.3d 759, 762 (7th Cir. 2008). Thus, as

Judge Posner noted in a subsequent Seventh Circuit case, in determining whether

plaintiffs have “proposed” that their claims be tried jointly, “the proposal can be

implicit . . . [and t]he joint trial could be limited to one plaintiff (or a few

plaintiffs) . . . . That form of bifurcation is common in class actions, and a mass action

is a form of class action.” Koral v. Boeing Co., 628 F.3d 945, 947 (7th Cir. 2011).

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Framing the issue in this manner, the critical issue becomes whether the three

groups of plaintiffs proposed that their claims be “tried jointly,” in which case

§ 1332(d)(11)(B)(i) applies and the cases are removable, or simply asked that their

respective claims be “consolidated or coordinated solely for pretrial proceedings,” in

which case § 1332(d)(11)(B)(ii)(IV) applies and the cases are not removable. The

answer to this question requires careful review of the proceedings in the City of St.

Louis Circuit Court. In that Court, cases are initially docketed for trial in Division I,

where the presiding judge sits, and assigned to a motion division judge who prepares

the case for trial. Then, as trial approaches, the presiding judge assigns the case to a

general division judge for final disposition. However, Local Rule 6.2.1 permits the

presiding judge to “assign extraordinary cases requiring individual and continuing

attention to general divisions for trial setting, pretrial motions and trial.” And Local

Rule 6.2.4 provides that 

[w]henever there are three or more actions pending in this Circuit

involving claims of personal injury by multiple plaintiffs against the

same defendants or groups of defendants, arising out of exposure to a 

product . . . the Presiding Judge may reassign such cases to a single

general division if the Presiding Judge determines that the administration

of justice would be served by such reassignment.

Here, each plaintiff group moved for special assignment to a single judge under

these rules. The Atwell group first moved to have its case assigned “to a single Judge

for purposes of discovery and trial.” The motion did not request a common

assignment with other transvaginal mesh plaintiffs, but plaintiffs cited Rule 6.2.4 and

noted that the issues in the transvaginal mesh cases “raise the potential for conflicted

rulings through the discovery and motion process.” The Taylor group filed a motion

closely resembling Atwell’s the next day, then amended its motion on June 3, 2013,

to conform to the Evans group motion filed that day. Relying on Rules 6.2.1 and

6.2.4, the Evans and Taylor groups moved to have the other transvaginal mesh cases

assigned to a single judge for both pretrial and trial matters, but each group noted it

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was not seeking to consolidate with other cases. Both groups cited “avoiding

conflicting pretrial rulings,” “providing consistency in the supervision of pretrial

matters,” and “judicial economy” as reasons for the assignment.

On June 6, the presiding judge held a combined hearing on all three motions. 

At the hearing, plaintiffs’ counsel argued:

ATWELL: [O]ur motion is to have it assigned to the judge that’s going to try the

case because of the complexity that’s going to occur all the way through,

that he should be the one to marshal how the case is going to be

developed. . . . [How to proceed is] going to be up to the judge that’s

going to end up hearing the pretrial motions and ultimately try the case. 

You’ll understand . . . we’ve got multiple plaintiffs. There’s going to be

a process in which to select the bellwether case to try.

EVANS/

TAYLOR: [Cases involving] a particular product[ ] should be assigned to a single

judge because the same legal issues arise over and over . . . , and . . . it

doesn’t make sense to have inconsistent rulings in a Boston Scientific

case from one judge and then [a transvaginal mesh case with a different

defendant]. We need to have consistency. * * * We specifically said we

don’t want these cases consolidated. They should not be consolidated. 

We’re simply asking your Honor to assign one single judge to handle

these cases for consistency of rulings, judicial economy, [and]

administration of justice.

On July 3, Boston Scientific removed all three cases to the Eastern District of

Missouri, asserting that court has jurisdiction under CAFA because plaintiffs proposed

to join their cases into a mass action with more than 100 plaintiffs. In Atwell, the

district court construed counsel’s hearing statements as requesting only that a single

judge handle both the pretrial and trial proceedings in the Atwell case. The court saw

no desire to consolidate Atwell with other transvaginal mesh cases and read the

“bellwether” reference as a mere prediction, not a proposal. In Evans and Taylor, the

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district court construed counsel as suggesting only pretrial coordination and saw no

indication that consolidation with Atwell had been proposed.

In our view, the district courts erred in failing to follow (Evans and Taylor) or

to properly apply (Atwell) the Seventh Circuit’s decision in In re Abbott Laboratories,

Inc., 698 F.3d 568 (7th Cir. 2012). In that case, several hundred plaintiffs filed ten

personal injury actions against Abbott Labs in three state courts and moved the

Supreme Court of Illinois to exercise its discretion under a Court rule allowing for

“consolidated pretrial, trial, or post-trial proceedings.” Id. at 570-71. Plaintiffs stated

they were requesting consolidation “through trial” and “not solely for pretrial

proceedings.” Id. Abbott Labs removed. The district court remanded the cases. 

Plaintiffs did not “contemplate . . . a joint trial of the hundreds of claims asserted,” the

court concluded, noting that “so-called ‘mass tort’ cases are never tried in their

entirety, and instead ‘bellwether’ claims selected by the parties are tried individually

in order to answer difficult issues” common to all claims. Id. The Seventh Circuit

reversed the remand order. Focusing both on what plaintiffs requested and on the

necessary consequences of their request, the court explained:

[P]laintiffs requested consolidation of their cases “through trial” and “not

solely for pretrial proceedings.” They further asserted that consolidation

through trial “would also facilitate the efficient disposition . . . without

the risk of inconsistent adjudication . . . . [I]t is difficult to see how a

trial court could consolidate the cases as requested by plaintiffs and not

hold a joint trial or an exemplar trial with the legal issues applied to the

remaining cases. In either situation, plaintiffs’ claims would be tried

jointly.

Id. at 573 (emphasis in original). By contrast, in Romo v. Teva Pharmaceuticals USA,

Inc., 731 F.3d 918, 921 (9th Cir. 2013), attorneys for many plaintiffs in forty product

liability actions filed in California state courts asked the California Judicial Council

to invoke a state rule of procedure allowing coordination of common actions “for all

purposes.” In affirming the district court’s remand order, the panel majority

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distinguished Abbott Labs because it involved consolidation rather than coordination,

and because plaintiffs in Abbott Labs requested consolidation “through trial . . .

thereby removing any question of [their] intent.” Id. at 923. Judge Gould in dissent

found Abbott Labs “both persuasive and relevant” because plaintiffs did not limit their

request to pretrial matters. When plaintiffs urged the state court to coordinate many

state actions to avoid inconsistent judgments, Judge Gould concluded:

it is a natural and probable consequence of the grant of the petition

seeking coordination, indeed it seems an inevitable result, that these

varied actions must be tried together, or coordinated in a way to avoid

inconsistent results as with bellwether trials, which amounts to the same

thing. . . . [T]he circumstances presented here are a proposal for a joint

trial within the meaning of what Congress said and intended in

CAFA . . . .

Id. at 928 (Gould, J., dissenting). We agree with Abbott Labs and with Judge Gould’s

interpretation of the statute and the Abbott Labs decision.

Here, at the motion hearing, counsel for the Evans and Taylor plaintiffs, while

disavowing a desire to consolidate cases for trial, nonetheless urged the state court to

assign the claims of more than 100 plaintiffs to a single judge who could “handle these

cases for consistency of rulings, judicial economy, [and] administration of justice.” 

Counsel for the Atwell plaintiffs was even more explicit, explaining that the motion

was intended “to have it assigned to the judge that’s going to try the case because of

the complexity that’s going to occur all the way through . . . . There’s going to be a

process in which to select the bellwether case to try.” 

We disagree with the district court’s conclusion that counsel’s “anticipation of

a bellwether trial” was simply “a prediction of what might happen if the judge decided

to hold a mass trial.” That was a quote from Judge Posner’s opinion in Koral. But

plaintiffs in Koral were resisting defendant’s motion to dismiss, not supporting a

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motion to place multiple cases in a procedural setting where bellwether trials would

be the normal way to efficiently prevent inconsistent judgments. 628 F.3d at 946. 

Here, counsel’s statements revealed the purpose of their motions -- a joint assignment

in which the “inevitable result” will be that their cases are “tried jointly.” As in

Abbott Labs, “it is difficult to see how a trial court could consolidate the cases as

requested by plaintiffs and not hold a joint trial or an exemplar trial with the legal

issues applied to the remaining cases.” 698 F.3d at 573. We conclude that, at the time

the cases were removed, the motions for assignment to a single judge filed by the

three plaintiff groups to the same state circuit court, combined with plaintiffs’ candid

explanation of their objectives, required denial of the motions to remand. See Hargis

v. Access Capital Funding, LLC, 674 F.3d 783, 789 (8th Cir. 2012) (removal

jurisdiction is evaluated at the time of removal).2

For these reasons, we grant Boston Scientific’s petitions for permission to

appeal, vacate the district court orders remanding the three cases to state court, and

remand the cases to the district court for further proceedings not inconsistent with this

opinion. Because we rule on the petitions for permission to appeal and the merits

simultaneously, we fully dispose of this appeal within sixty days of granting the

petitions, as 28 U.S.C. § 1453(c)(2) requires. See Patterson v. Dean Morris, L.L.P.,

444 F.3d 365, 370 (5th Cir. 2006) (sixty-day period begins on the day leave to appeal

is granted); accord In re Mortg. Elec. Reg. Sys., Inc., 680 F.3d 849, 852-53 (6th Cir.

2012) (collecting cases). We grant Boston Scientific’s motion to consolidate the

2

Subsequent events bear out this conclusion. On September 10, the presiding

judge of the City of St. Louis Circuit Court granted plaintiffs’ motion to assign the

Atwell case to a general division judge under Local Rule 6.2.1. The Court stated it

was “assigning this matter to a judge for trial setting, pretrial motions and trial under

Local Rule 6.2.1. For purposes of judicial economy this Court intends to assign other

transvaginal mesh cases to the same judge.” We recently noted in affirming a remand

order that “immediate removal would be timely and almost certainly proper” if the

CAFA jurisdictional bar should later evaporate in the state court. Hurst v. Nissan N.

Am., Inc., 511 F. App’x 584, 586-87 (8th Cir. 2013) (unpublished per curiam). 

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petitions for permission to appeal and the motions by counsel for Evans and Taylor

for leave to file a sur-reply. 

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