Case Information
*2 Before P OSNER R IPPLE , and W OOD Circuit Judges . P OSNER , Circuit Judge
. Before us are petitions for leave
to appeal under the Class Action Fairness Act of 2005,
Pub. L. 109-2, 119 Stat. 4, from orders remanding two
class action suits to Illinois state courts. The question the
petitions present is whether amending a complaint to add
or substitute named plaintiffs (class representatives)
“commences” a new suit.
Id
., § 9. The suits were filed before
the effective date of the Class Action Fairness Act but the
amendments came after. So if the amendments are deemed
to commence new suits, these suits are removable to federal
district court; otherwise not.
Knudsen v. Liberty Mutual Ins.
Co.
,
The suits complain about the paint jobs on cars manu- factured by the defendants. In the Phillips case, the plaintiffs, after first alleging a class consisting of purchasers of 1988 through 1997 Ford models, amended their complaint to limit the class to the 1989 through 1995 model years. Nevertheless, for reasons that are obscure, the judge without being asked to do so certified a class that included the 1996 models and in response the plaintiffs amended their complaint a second time in order to add to their ranks the owner of a 1996 model. This amendment came after CAFA’s effective date. In the case, the plaintiffs who were added by amendment after the Act’s effective date were members of the original class; they were added because it was discovered that the claims of the original named plaintiffs might be barred by the statute of limitations.
“A routine amendment to the complaint does not com- mence a new suit.” Schorsch v. Hewlett-Packard Co. , 417 F.3d *3 748, 749 (7th Cir. 2005). But is adding a plaintiff to a class action suit “routine”? We said in Schorsch that “a defendant added after [CAFA’s effective date] could remove because suit against it would have been commenced after the effective date, and tacking a wholly distinct claim for relief onto an old suit likewise might commence a new proceed- ing.” Id. (emphasis in original). An amendment that merely changed the definition of and hence membership in the class was “routine,” but we noted that the suit remained one between the original parties. No named plaintiffs had been added; the alteration of the class had added just new, unnamed class members. Id. at 750.
Substitution of unnamed class members for named
plaintiffs who fall out of the case because of settlement or
other reasons is a common and normally an unexception-
able (“routine”) feature of class action litigation both in
the federal courts and in the Illinois courts.
Gates v.
Towery
, 430 F.3d 429, 430 (7th Cir. 2005);
Birmingham
Steel Corp. v. TVA
, 353 F.3d 1331, 1339 (11th Cir. 2003);
Toms v. Allied Bond & Collection Agency, Inc.
,
Strictly speaking, if no motion to certify has been filed
(perhaps if it has been filed but not acted on), the case is not
yet a class action and so a dismissal of the named plaintiffs’
claims should end the case. E.g.,
Walters v. Edgar
, 163 F.3d
430, 432-33 (7th Cir. 1998). If the case is later restarted with
*4
a new plaintiff, it is a new commencement, a new suit. But
the courts, both federal and Illinois, are not so strict. Unless
jurisdiction never attached, as in
Walters v. Edgar supra
, or
the attempt to substitute comes long after the claims of the
named plaintiffs were dismissed, as in
Lusardi v. Xerox Corp.
,
The courts thus disregard the jurisdictional void that is
created when the named plaintiffs’ claims are dismissed
and, shortly afterwards, surrogates step forward to replace
the named plaintiffs. See also
Schreiber Foods, Inc., v. Beatrice
Cheese, Inc.
, 402 F.3d 1198 (Fed. Cir. 2005), and
Insituform
Technologies, Inc. v. CAT Contracting, Inc
., 385 F.3d 1360,
1371-72 (Fed. Cir. 2004), discussed in
DePuy, Inc. v. Zimmer
Holdings, Inc.,
Since the question for decision, now that the jurisdictional
wrinkle has been smoothed out, is whether adding named
plaintiffs commences a new suit
in state court
, the answer
should depend on state procedural law. The clearest case in
which an amended complaint does not kick off a new suit is
where the amendment “relates back” to the original com-
plaint. For then the fact that the statute of limitations has
run (as it may have against the named plaintiffs in
Boxdorfer
)
is not a bar, as it would be if the amended complaint did not
relate back—that is, if it stated a new claim and thus kicked
off a new suit.
Norman A. Koglin Associates v. Valenz Oro, Inc.
680 N.E.2d 283, 289-91 (Ill. 1997);
Byson v. News America
Publications
, 672 N.E.2d 1207, 1222-24 (Ill. 1996);
Wolf v.
Meister-Neiberg, Inc.
,
Relation back to add named plaintiffs in a class action suit
is of particular importance because of the interests of the
unnamed members of the class. Suppose Mr.
X
files a class
action and after the statute of limitations has run the
defendant settles with
X
. If a named plaintiff cannot be
substituted for
X
with relation back to the date of the fil-
ing of the original complaint, the class will be barred from
relief. That is the fate looming in if relation back is
denied, and for all we know in
Phillips
as well for class
members who own 1996 Ford models. Since, for this reason,
*6
Illinois in effect allows named plaintiffs to be substituted
with relation back (“in effect” because the formal rule is that
the filing of a class action tolls the statute of limitations for
class members, so that they can if necessary be substituted
for the named plaintiffs, without being barred by reason of
the passage of time since the suit was filed),
Steinberg v.
Chicago Medical School
, 371 N.E.2d 634, 645 (Ill. 1977);
Regnery v. Meyers
,
A FFIRMED A true Copy:
Teste:
_____________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—1-30-06