Carla Visendi v. Bank of America, N.A.
733 F.3d 863
| 9th Cir. | 2013Background
- 137 named plaintiffs sued 25 financial institutions in CA state court alleging deceptive mortgage lending and securitization practices and related damages.
- Bank of America removed the action to the ED California under CAFA as a mass action with monetary claims of 100+ persons to be tried jointly.
- Plaintiffs filed a First Amended Complaint increasing to about 160 named plaintiffs, adding three new state-law claims, and alleging diverse loans and properties nationwide.
- District court directed Defendants to show common questions of law or fact; the court remanded to state court and denied the removal abstention defense; Defendants argued misjoinder.
- We hold CAFA mass action applies, local controversy is non-jurisdictional, and severance/dismissal of misjoined plaintiffs is appropriate; reverse and remand with instructions to dismiss all but the first named plaintiff, Visendi.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CAFA mass action removal proper | Plaintiffs argue absence of common questions defeats CAFA removal. | Defendants contend initial complaint satisfied CAFA’s 100+ plaintiffs joint-trial criterion. | Removal proper under CAFA. |
| Numerosity sufficiency under CAFA | Plaintiffs contend only 95 properties/real parties; numerosity not met. | CAFA uses 'persons'; 137 named plaintiffs satisfy numerosity. | Numerosity satisfied; CAFA jurisdiction exists. |
| Local controversy exception | Local controversy exception precludes jurisdiction. | Exception not jurisdictional; can be raised on appeal. | Not considered on appeal; decline to review. |
| Misjoinder and severance under Rule 20 | Joinder should be preserved; severance not appropriate. | Misjoinder exists; severance appropriate to avoid prejudice. | Misjoinder exists; severance/dismissal of all but Visendi warranted. |
| Remand vs. dismissal strategy | Remand should not dismiss, or dismissal would prejudice plaintiffs. | Dismissing misjoined plaintiffs preserves efficient resolution. | Remand with dismissal instructions to preserve individual actions. |
Key Cases Cited
- United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union v. Shell Oil Co., 602 F.3d 1087 (9th Cir. 2010) (CAFA jurisdiction and mass action principles)
- Tanoh v. Dow Chem. Co., 561 F.3d 945 (9th Cir. 2009) (CAFA mass action and the 100+ plaintiffs criterion)
- Navarro Sav. Ass’n v. Lee, 446 U.S. 458 (U.S. 1980) (real party to controversy; citizenship considerations for numerosity)
- Serrano v. 180 Connect, Inc., 478 F.3d 1018 (9th Cir. 2007) (CAFA exceptions and local controversy framework)
- Romo v. Teva Pharmaceuticals USA, Inc., —F.3d— (9th Cir. 2013) (coordinating state-court cases with fewer than 100 plaintiffs does not imply a joint trial)
- Kuxhausen v. BMW Fin. Servs. NA, 707 F.3d 1136 (9th Cir. 2013) (timing for CAFA appeal decisions)