Geoffrey SCIMONE, Nancy Scimone, Mario Lofaro, Nancy Lofaro, Agatina Vincenza Marfisi, et al., Plaintiffs-Appellees, v. CARNIVAL CORPORATION, Carnival Corporation & PLC, Costa Cruise Lines, Inc., Costa Crociere S.P.A., Joseph Farcus, Architect, P.A., Defendants-Appellants, John Does, et al., Defendants.
No. 13-12291
United States Court of Appeals, Eleventh Circuit.
July 1, 2013.
720 F.3d 876
Thad T. Dameris, Hogan Lovells US, LLP, Houston, TX, Alvin F. Lindsay, III, Hogan Lovells US, LLP, Miami, FL, David J. Weiner, Mary Helen Wimberly, Hogan Lovells US, LLP, Washington, DC, for Defendants-Appellants.
Before CARNES, HULL and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
In 2012, one of Appellants’ cruise ships, the Costa Concordia, ran aground off the coast of Italy. In the wake of the accident, many of the Costa Concordia‘s passengers sued Appellants (collectively referred to in this opinion as “Carnival“), filing dozens of actions in forums both in the United States and around the world. This appeal concerns two separate actions in particular, filed by groups of fifty-six and forty-eight plaintiffs in the Circuit Court of the Eleventh Judicial Circuit of Florida. Carnival removed both actions to the United States District Court for the Southern District of Florida, claiming that the district court had subject-matter jurisdiction under the mass-action provision of the Class Action Fairness Act of 2005 (“CAFA“),
We granted Carnival permission to ap-
I.
This case begins with a shipwreck. The plaintiffs were all passengers on the Costa Concordia, a large cruise ship owned and operated by Carnival and its related corporate entities. On January 13, 2012, the Costa Concordia left Port Civitavecchia, Italy, to embark on a Mediterranean cruise. The ship‘s captain apparently decided to execute a maneuver known as a “bow” or “sail-by-salute,” which would bring the ship close to a nearby island. Disaster struck: the ship got too close, hit an underwater rock, and began listing to one side, eventually necessitating a complete evacuation. Thirty-two people died in the accident.
Unsurprisingly, these events spawned many lawsuits. Less than two weeks after the accident, six plaintiffs, including Appellee Scimone, filed a complaint (”Scimone I“) against Carnival and related corporate entities in the Circuit Court of the Eleventh Judicial Circuit of Florida, alleging claims for negligence, professional negligence on the part of the ship‘s architect, and intentional torts. Additional potential plaintiffs, who had traveled on the Costa Concordia, asked to join the suit, and the Scimone I plaintiffs soon amended their complaint to name thirty-nine plaintiffs in total. In the ensuing weeks, yet another sixty-five Costa Concordia passengers indicated their desire to join the Scimone I action. Rather than adding these potential plaintiffs to the complaint, which would bring the total number of persons whose claims would be tried jointly over 100, the Scimone I plaintiffs voluntarily dismissed their complaint.
The original thirty-nine plaintiffs from Scimone I divided themselves into two groups and distributed the additional sixty-five Costa Concordia passengers between those two groups. In July 2012, the two groups filed two separate complaints in state court, each of which named less than 100 plaintiffs. One complaint (”Scimone II“) ended up containing forty-eight plaintiffs, while the other complaint (”Abeid-Saba“) contained the remaining fifty-six plaintiffs. The two complaints contain essentially the same allegations against Carnival, and there is no question that all 104 plaintiffs’ claims concern common questions of law and fact.
The two groups of plaintiffs served their complaints on defendants in late August or early September 2012. Neither group of plaintiffs moved for consolidation of the two cases in state court. Nonetheless, on September 26, 2012, Carnival removed both Scimone II and Abeid–Saba to the United States District Court for the Southern District of Florida. Carnival argued for removal based on the mass-action provision of the Class Action Fairness Act and based on federal courts’ exclusive jurisdiction over cases raising “substantial issues of federal common law relating to foreign relations.”
Subsequently, Carnival filed two motions to dismiss each case, based on the forum selection clause of plaintiffs’ contracts and forum non conveniens. In turn, both groups of plaintiffs filed motions to remand their actions to state court pursuant to
After briefing on the plaintiffs’ motions to remand was complete, the district court granted both the Scimone II and Abeid–Saba plaintiffs’ motions and remanded both cases to state court. The district court concluded that defendants could not remove pursuant to the mass-action provision of CAFA: “The problem for removal jurisdiction under the CAFA is that neither suit has 100 plaintiffs alone. It is also a problem that the Plaintiffs have not proposed for the cases to be tried jointly. Therefore, the CAFA does not supply a basis for removing these two identical lawsuits.” The district court also rejected Carnival‘s assertion that the case implicated federal common law regarding foreign policy. The district court therefore remanded both cases and denied all pending motions—including Carnival‘s motions to dismiss—as moot.
Pursuant to
II.
We review an issue of statutory interpretation de novo. United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004). We also review a district court‘s decision to remand a case to state court for lack of subject-matter jurisdiction de novo. Lowery v. Ala. Power Co., 483 F.3d 1184, 1193 (11th Cir. 2007); see
According to Carnival, the district court erred in concluding that it lacked subject-matter jurisdiction over the two lawsuits pursuant to the mass-action provision of the Class Action Fairness Act, as codified at
The relevant portion of CAFA permits removal of a “mass action” as if it were a class action removable under
(i) ... [T]he term “mass action” means any civil action ... in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a).
(ii) ... [T]he term mass action shall not include any civil action in which—
(I) all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in States contiguous to that State;
(II) the claims are joined upon motion of a defendant;
(III) all of the claims in the action are asserted on behalf of the general public (and not on behalf of individual claimants or members of a purported class) pursuant to a State statute specifically authorizing such action; or
(IV) the claims have been consolidated or coordinated solely for pretrial proceedings.
The definition of “mass action” contains several requirements that are not in dispute in this case. Both parties agree that the plaintiffs’ claims involve common questions of law or fact—they all arise out of the same accident—and that at least some plaintiffs’ claimed damages exceed the amount-in-controversy requirement of
“[T]he starting point for interpreting” what constitutes a proposal for a joint trial, and who may make such a proposal pursuant to
As to who may make the proposal, the universe of possible subjects is limited: the statute must be referring to a proposal made by the plaintiff, by the defendant, or perhaps by the state court acting sua sponte. We leave open the possibility that the state trial judge‘s sua sponte consolidation of 100 or more persons’ claims could satisfy the jurisdictional requirements of
At a minimum, what is clear from the statute‘s text and structure is that the plaintiffs can propose a joint trial, either by naming 100 or more plaintiffs in a single complaint or by their litigation conduct at any time prior to defendants’ removal of their action to federal court. If, for instance, plaintiffs initially file mul-
Our reading of the statute is fully consonant with four longstanding principles. First, we assess jurisdictional facts at the time of removal. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010) (“A court‘s analysis of [CAFA‘s] amount-in-controversy requirement focuses on how much is in controversy at the time of removal, not later.“); Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 946 (11th Cir. 2000). This principle, when read along with the statutory language, necessarily means that the defendant cannot propose joint trial because the proposal must be made in the state court prior to the defendant‘s attempt to remove the case, and—pursuant to
Based on the undisputed record, Carnival cannot demonstrate that the plaintiffs in the two actions proposed a joint trial of their claims, in whole or in part, in state court. What actually happened in the case is this: initially, six plaintiffs filed a complaint, Scimone I, and later amended that complaint to add thirty-three more plaintiffs. Yet another sixty-five Costa Concordia passengers, who were potential additional plaintiffs, later indicated that they wanted to join Scimone I. At that point, rather than simply naming all 104 passengers to the complaint in Scimone I, the Scimone I plaintiffs voluntarily dismissed their lawsuit. The thirty-nine Scimone I plaintiffs then split into two groups, divided the sixty-five other Costa Concordia passengers into those two groups, and filed two separate complaints in Florida state court. One complaint (”Scimone II“) named forty-eight plaintiffs, and the other complaint (”Abeid–Saba“) named the remaining fifty-six.
At no point in this procedural history did the 104 plaintiffs in these two actions ever file a single complaint that named 100 or more plaintiffs. Scimone I had thirty-nine plaintiffs, Scimone II had forty-eight, and Abeid–Saba had fifty-six. On the face of the complaint in Scimone I, therefore, the initial group of plaintiffs proposed to try only thirty-nine persons’ claims jointly. The mere fact that another sixty-five Costa Concordia passengers wanted to join the action does not mean that the thirty-nine plaintiffs in Scimone I proposed or acquiesced to a joint trial with 100 or more persons. In fact, they obviously wanted, and took steps to ensure that they would get, separate trials with less than 100 persons involved. Thus, when the Scimone I plaintiffs realized that other Costa Concordia passengers wanted to join, they, as masters of the Scimone I complaint, elected to voluntarily dismiss the complaint rather than aggregating 100 or more persons’ claims. Carnival has not contested that the plaintiffs had the right to do so under Florida‘s rules of civil procedure. The plaintiffs then filed two separate lawsuits, Scimone II and Abeid–Saba, neither of which proposed to try 100 or more persons’ claims jointly. Thus, nothing in how the plaintiffs structured their complaints amounted to a “proposal,” as required by
Carnival argues, nevertheless, that the plaintiffs in these two cases did in fact implicitly “propose” a joint trial. Indeed, this is the crux of Carnival‘s case. In essence, Carnival says that the plaintiffs proposed a joint trial simply by initially filing a single state-court action (containing only thirty-nine plaintiffs) and then voluntarily dismissing that case and refiling two separate but largely identical lawsuits (each of which still had fewer than 100 plaintiffs). As Carnival puts it, “[a]t the very least, this conduct suggests a joint trial,” which satisfies
To begin with, the statutory language requires a “proposal,” not a mere suggestion, and common sense dictates that, when plaintiffs choose to voluntarily dismiss a single complaint (which had fewer than 100 plaintiffs), then divide themselves into two separate groups, and file two separate complaints (each of which has fewer than 100 plaintiffs), they are actually proposing two separate trials rather than a joint trial. The fact that a plaintiff in Scimone II traveled on the same ticket as a plaintiff in Abeid–Saba bears on whether the two cases share common questions of law or fact, not on whether those plaintiffs proposed a joint trial of 100 or more persons’ claims. Nor did the plaintiffs do anything at all that amounts to a demand for a joint trial of 100 or more persons’ claims. Every step the plaintiffs took was plainly directed toward achieving the exact opposite. Indeed, if we accepted Carnival‘s position, we would reduce the mean-
Every other court of appeals confronted with this question has come to the same conclusion: that plaintiffs have the ability to avoid
Similarly, in Tanoh v. Dow Chemical Co., 561 F.3d 945 (9th Cir. 2009), an earlier Ninth Circuit case cited by Anderson in support of its disposition, the defendants removed seven actions (each with fewer than 100 plaintiffs) to federal court pursuant to CAFA. All 664 plaintiffs in the seven actions alleged that Dow Chemical exposed them to toxic chemicals. Id. Like here, the defendants argued that the plaintiffs “sought to avoid federal jurisdiction by filing several separate state court actions in groups fewer than one hundred.” Id. at 951 (internal quotation mark omitted). The Ninth Circuit concluded that, “[b]y its plain terms, [CAFA] does not apply to plaintiffs’ claims in this case, as none of the seven state court actions involves the claims of one hundred or more plaintiffs, and neither the parties nor the trial court has proposed consolidating the actions for trial.” Id. at 953. The Third Circuit has agreed with the Seventh and the Ninth Circuits, albeit in an unpublished opinion. Abrahamsen v. ConocoPhillips, Co., 503 Fed. Appx. 157, 160 (3d Cir. 2012) (when 123 plaintiffs filed four separate complaints, none of which had 100
Carnival levels two abstract, policy-based objections to our conclusion and the decisions of those other circuits: first, that we have violated the basic principle that “courts will not permit plaintiff to use artful pleading to close off defendant‘s right to a federal forum,” Federated Dep‘t Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2 (1981) (internal quotation mark omitted); and, second, that we have ignored the purpose of the statute, which was to expand federal jurisdiction over class and mass actions and to facilitate their removal. The problem with the first objection is that Carnival presupposes that which it first has to prove: that it is entitled to a federal forum for two complaints that, on their face, each involve less than 100 claims. Carnival is only entitled to a federal forum if the plaintiffs filed a single complaint in state court that involved 100 or more persons’ claims or otherwise proposed a joint trial for multiple complaints that in the aggregate contain 100 or more plaintiffs. The problem with the second objection is that there is no indication that Congress‘s purpose in enacting CAFA was to strip plaintiffs of their ordinary role as masters of their complaint and allow defendants to treat separately filed actions as one action regardless of plaintiffs’ choice. Contrary to Carnival‘s position, the jurisdictional exclusion of claims joined only on a defendant‘s motion speaks to precisely the opposite intent: to continue to repose in plaintiffs the ability to choose a state forum as long as they do not join 100 or more persons’ claims. In fact, the primary purpose behind CAFA‘s amendments to
Nor are we persuaded by the authorities Carnival cites. The two cases upon which it most heavily relies—Standard Fire Insurance Co. v. Knowles, 568 U.S. 588 (2013), and Freeman v. Blue Ridge Paper Products, Inc., 551 F.3d 405 (6th Cir. 2008)—dealt with different issues and not with the mass-action provision at issue in this case. In Knowles, the question was whether the lead plaintiff in a class-action lawsuit could avoid federal removal jurisdiction by stipulating prior to class certification that he, and the class he sought to represent, would not seek more than $5 million in damages. See id.. The relevant statutory provision provided that “to determine whether the amount in controversy exceeds the sum or value of $5,000,000,” the “claims of the individual class members shall be aggregated.”
The holding of Knowles, which concerns a different section of the statute, plainly does not address the issue presented in this case. Carnival nevertheless places great significance on the part of the opinion that states:
To hold [that plaintiff‘s stipulation determined the bounds of federal jurisdiction] would, for CAFA jurisdictional purposes, treat a nonbinding stipulation as if it were binding, exalt form over substance, and run directly counter to CAFA‘s primary objective: ensuring Federal court consideration of interstate cases of national importance. It would also have the effect of allowing the subdivision of a $100 million action into 21 just-below-$5-million state-court actions simply by including nonbinding stipulations; such an outcome would squarely conflict with the statute‘s objective.
Id. (internal quotation marks and citation omitted). Carnival urges us to read this passage as stating a broad rule that CAFA does not allow plaintiffs to structure their lawsuits to avoid CAFA jurisdiction. As we see it, this stretches the Supreme Court‘s analysis far past its breaking point. The passage pertains to the amount-in-controversy requirement and to the unique situation where a lead plaintiff merely creates the appearance of a smaller amount in controversy with a nonbinding stipulation to that effect. It cannot be read to suggest that all sections of CAFA strip plaintiffs of their traditional role as masters of their complaint, particularly where, as in this case, the plaintiffs’ decision to proceed in two separate lawsuits does not merely create the appearance of two trials but would actually result in two trials in state court.
Freeman, Carnival‘s Sixth Circuit authority, also dealt with CAFA‘s amount-in-controversy requirement. In that case, the same class brought the same claim in five different actions, divided only by artificial time limits that ensured that each action putatively fell under the $5 million amount-in-controversy threshold of
The long and short of this case is that, in order for the district court to have subject-matter jurisdiction,
AFFIRMED.
MARCUS
CIRCUIT JUDGE