Warren Lester v. Exxon Mobil Corporation, e
879 F.3d 582
| 5th Cir. | 2018Background
- Lester: a 2002 Louisiana suit (over 600 plaintiffs) alleging NORM-related injuries; state court tried claims in smaller "flights" (no single flight exceeded 12 plaintiffs).
- Bottley: a separate 2013 wrongful-death suit by three plaintiffs; decedent was previously a Lester plaintiff.
- Same counsel represented both Bottley and many Lester plaintiffs.
- Bottley moved to transfer and consolidate her suit with Lester under La. Code Civ. Proc. art. 1561 (consolidation for trial).
- Mobil Oil (a defendant in Bottley) removed both cases to federal court under CAFA, asserting a "mass action" (100+ plaintiffs proposed to be tried jointly).
- District court denied remand and consolidated the cases; Fifth Circuit granted interlocutory appeal and affirmed removal and consolidation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a motion to consolidate/transfer can create a CAFA "mass action" | Consolidation motion here did not propose a joint trial of 100+; motion was not granted and targeted only a flight | The consolidation motion proposed joinder of Bottley with Lester (which aggregated 100+ plaintiffs), so it proposed a joint trial and thus a mass action | Motion to consolidate constituted a proposal to try claims jointly; Bottley+Lester met CAFA numerosity and thus constituted a removable mass action |
| Whether a pre-CAFA suit (Lester) may be counted toward the 100-plaintiff threshold when consolidated with a post-CAFA suit (Bottley) | Counting pre-CAFA plaintiffs would impermissibly apply CAFA retroactively; §9 bars CAFA from "applying" to actions commenced before Feb 18, 2005 | CAFA applies to any civil action commenced after enactment; Bottley (post-CAFA) became a mass action when it proposed consolidation with Lester, so the mass action (inclusive of Lester plaintiffs) is removable | The court held a post-CAFA civil action (Bottley) may become a removable mass action by proposing consolidation with pre-CAFA civil actions; Mobil could remove the entire mass action |
| Whether removal requires the removing defendant to be a party to all component suits | Plaintiffs: Mobil Oil was not a defendant in Lester and thus lacked standing to remove Lester claims | Mobil: §1453 allows removal of class/mass actions; Mobil was a defendant in Bottley and could remove the mass action as a whole | Court held it was immaterial that Mobil was not a defendant in Lester; Mobil had standing to remove the mass action |
| Whether district court consolidation after removal was improper | Plaintiffs argued state procedures and preexisting "flights" meant consolidation would not create a mass-action trial of 100+ | Defendants urged federal consolidation under Rule 42(a) was proper post-removal | Court affirmed district court’s Rule 42(a) consolidation; plaintiffs did not challenge the consolidation order on appeal |
Key Cases Cited
- Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801 (5th Cir.) (post-CAFA additions can re-commence action as to added parties)
- In re Abbott Labs., 698 F.3d 568 (7th Cir.) (motion to consolidate through trial can propose a joint trial of 100+ and trigger CAFA)
- Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759 (7th Cir.) (statutory test asks whether a joint trial was proposed, not whether a 100+ plaintiff trial actually occurred)
- Corber v. Xanodyne Pharm., 771 F.3d 1218 (9th Cir.) (petitions to coordinate or consolidate for "all purposes" may constitute a proposal for a joint trial under CAFA)
- Parson v. Johnson & Johnson, 749 F.3d 879 (10th Cir.) (no joint-trial proposal where plaintiffs expressly disclaimed trial consolidation)
- Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir.) (addition of post-CAFA defendants can permit removal of the entire action; CAFA reference to "actions" is broadly inclusive)
- Admiral Ins. Co. v. Abshire, 574 F.3d 267 (5th Cir.) (distinguishing commencement of a "civil action" from the later formation of a class/mass action for §9 purposes)