Justine Briggs v. Merck Sharp & Dohme
796 F.3d 1038
| 9th Cir. | 2015Background
- Five separate tort suits (Kreis, Kelly, Johnson, Briggs, Martinez) alleging pancreatic cancer from incretin-based diabetes drugs were filed in San Diego Superior Court; each had fewer than 100 plaintiffs.
- A defendant-initiated coordinated proceeding (Byetta JCCP) addressing related incretin claims had been pending in Los Angeles Superior Court for years; an MDL on related claims was pending in federal court (Southern District of California).
- Merck first removed four cases to federal court on ordinary diversity grounds; district court remanded. After plaintiffs made statements in the remand proceedings predicting joinder with the Byetta JCCP, Merck removed all five cases under CAFA’s "mass action" provision (28 U.S.C. § 1332(d)(11)).
- District court denied plaintiffs’ second motions to remand (after Corber was decided), concluding plaintiffs had proposed joint trials or otherwise triggered CAFA; plaintiffs timely sought permission to appeal after a timely motion for reconsideration was denied.
- Ninth Circuit held (1) a timely motion for reconsideration restarts the 10-day period to seek permission to appeal under 28 U.S.C. § 1453(c)(1), and (2) none of the five cases constituted a CAFA "mass action" because plaintiffs did not "propose" to try the claims of 100+ persons jointly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a timely motion for reconsideration restarts the 10-day period to petition for permission to appeal under 28 U.S.C. § 1453(c)(1) | Petition deadline runs from denial of timely reconsideration | Deadline runs from initial remand order; petitions were untimely | Timely reconsideration restarts the 10-day period; petitions were timely |
| Whether plaintiffs "proposed" a joint trial (triggering CAFA mass-action removal) by statements in federal remand proceedings that their cases would likely be joined to the Byetta JCCP | Statements about likely joinder or requests to remand (so cases could be coordinated) amounted to proposals to try jointly | Plaintiffs’ statements amounted to proposals and therefore CAFA removal valid | Statements were not proposals: requests/predictions to a court that could not effectuate a joint trial do not trigger CAFA |
| Whether filing separate state suits in San Diego while defendant-initiated Byetta JCCP existed in LA constituted a proposal to try 100+ claims jointly | Filing with knowledge of existing JCCP implied proposal to join and try jointly | Filing demonstrated intent to be joined; CAFA applies | Mere filing with knowledge (or likelihood) of future joinder is insufficient to constitute a proposal |
| Whether Kreis’s add-on petition to join the Byetta JCCP (and similar JCCP petitions) constituted a proposal to try jointly | Add-on petition could be read as a proposal for joint trial | Such a petition triggers CAFA mass-action jurisdiction | Kreis’s add-on petition expressly limited coordination to pretrial and disclaimed joint trials; it did not propose a joint trial and falls within the pretrial-coordination exception |
Key Cases Cited
- United States v. Ibarra, 502 U.S. 1 (1991) (denial of timely postjudgment motion resets appeal period)
- United States v. Dieter, 429 U.S. 6 (1976) (statutory appeal period runs from denial of rehearing)
- United States v. Healy, 376 U.S. 75 (1964) (traditional rule that reconsideration tolls appeal deadline)
- Corber v. Xanodyne Pharms., 771 F.3d 1218 (9th Cir. 2014) (initial JCCP petition can be a proposal to try cases jointly under CAFA)