U.S. Fifth Circuit Allows Removal under CAFA when Plaintiffs Seek Consolidation of New Action into Pre-Existing Multi-Plaintiff Case

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In 2002, over 600 plaintiffs filed a petition in Lester v. Exxon, alleging property damage and/or personal injuries arising from naturally occurring radioactive material (NORM). The State Court utilized a “flighting” system to segregate the Lester plaintiffs’ claims into smaller trials or “flights.”  There is no preclusive effect from one flight to the next, and, thus far, no flight has involved more than twelve plaintiffs.  In 2013, three plaintiffs filed a wrongful death and survival action, Bottley v. Exxon, on behalf of someone who, while still alive, had been a plaintiff in the Lester action.  Shortly thereafter, the State Court in Lester set for trial a flight of eight plaintiffs, which included the decedent’s claim.  Apparently hoping to join this flight for trial, the Bottley plaintiffs moved to transfer and consolidate their three-plaintiff suit with Lester. Defendants promptly removed both suits, claiming that Bottley and Lester were removable as a newly commenced “mass action” under CAFA.  (At the time of removal, over 500 plaintiffs remained in Lester.)  The District Court denied remand, consolidated the actions, and certified the issue for interlocutory appeal.  The U.S. Fifth Circuit, reviewing the matter, concluded that Mobil Oil was permitted to remove both Bottley and Lester to Federal Court as a “mass action” under CAFA.

“Mobil Oil contends, and the district court concluded, that the mass action inquiry is focused on what plaintiffs proposed. Mobil Oil argues that the Bottley plaintiffs’ filing of a motion to consolidate effectuated a mass action under CAFA — Bottley plus Lester easily meets CAFA’s 100–person numerosity requirement.  In their briefs, however, Plaintiffs argued that the Bottley motion did not propose a joint trial of 100 or more persons. Their arguments essentially are comprised of three main contentions: (1) there is no mass action because, they assert, the motion for consolidation was not granted by the state trial court prior to removal, (2) the Bottley motion intended to propose a joint trial only with the LTOIS flight, and (3) Lester’s procedural history, involving small trial flights with no accompanying preclusive effect, indicates the absence of a joint trial involving 100 or more persons.

“As a factual matter, the record is unclear regarding whether the state court signed a consolidation order. That ambiguity is immaterial to the mass action inquiry, however, because the plain language of CAFA indicates that a mass action arises upon a proposal for joint trial….  The Bottley plaintiffs moved to consolidate their case with the Lester case, not just the flight set for trial…. As noted by the district court, Louisiana case law seems to have interpreted Article 1561, in accord with the article’s plain language, to only permit consolidation for trial, as opposed to pretrial, purposes.”

With one judge dissenting, the Court further concluded that the “action” was “commenced” after CAFA’s effective date: “It is of course true that Lester alone could not be removed. It does not follow, however, that a post-CAFA mass action encompassing civil actions commenced both before and after CAFA’s commencement cannot be removed. Congress said CAFA applies to any civil action commenced after its effective date. The Bottley suit is a civil action that was commenced after CAFA’s effective date. It became a ‘mass action’ when the Plaintiffs proposed that the claims be tried jointly with those in Lester.

 

Lester v. ExxonMobil, No.14-31383, 2018 WL 330034 (5th Cir. Jan. 9, 2018).

 

 

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