Judith ROMO; Vincent Taldone; Robin Tayler; Margaret Taylor; Randy Taylor; Ray Teets; Lawrence Tells; Kathryn Temchack; Charles Terry; Veronica Terry; Roberta Thorne; Margaret Tivis; Linda Todd; Delores Toohey; Debra Tourville; Tsouals; Allen Turner; Carolyn Turner; Wanda Turner; Starlet Tyrone; Gloria Underwood; Henry Underwood; Janice Vanison; William Verheyen; Charles Vildibill; Sharon Wallgren; Pam Walsh; Sharon Walsh; Keesha Warrior; Latanga Washington; Darlene Watt; James Weiss; Wesley Welborne, III; Debra Wheeler; Marsha Whitt; Carolyn Whyno; Cecilia Wilckens; Sandra Wilemon; Stella Wilkerson-Clark; Joann Williams; Joyce Williams; Rose Williams; Shantas Williams; Mary Wilson; Rose Wilson; Patsy Winzey; Jimmie Wise; Ruth Wolfson; Juanita Woodson; Lynne Wysocky, single individuals, Plaintiffs-Appellees, v. TEVA PHARMACEUTICALS USA, INC., Defendant-Appellant.
No. 13-56310
United States Court of Appeals, Ninth Circuit
Sept. 24, 2013
731 F.3d 918
Although the district court did not elaborate on its reasoning regarding the merits, perhaps influenced by its apparent authority to grant summary judgment under the local rule based on the lack of opposition, we may affirm the district court‘s ruling on the merits “on any ground supported by the record.” Van Asdale v. Int‘l Game Tech., 577 F.3d 989, 994 (9th Cir.2009) (internal quotation marks omitted).
The record is clear that Satterberg was entitled to summary judgment. Any of the three arguments presented by Satterberg in his motion might provide аn adequate ground. For our purposes, we will focus on prosecutorial immunity.
As Heinemann alleges in his complaint, Satterberg is the King County Prosecuting Attorney whose office filed a charge against Heinemann in state court. The only misconduct identified in Heinemann‘s complaint was that filing the criminal action was improper because the state court lacked jurisdiction and that only federal authorities could bring a charge against Heinemann. That is incorrect, but for current purposes it matters only that prosecutorial immunity protects a prosecutor for “his decision to initiate a prosecution.” Imbler v. Pachtman, 424 U.S. 409, 421-24, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).
At oral argument, Heinemann‘s pro bono counsel argued that immunity did not extend to protect a prosecutor who took action outside a traditional prosecutor‘s role. See, e.g., Kalina v. Fletcher, 522 U.S. 118, 129-31, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (holding that prosecutors are not absolutely immune when testifying about probable cause to obtain an arrest warrant). That is true, but Heinemann did not allege misconduct of that nature in his complaint. He complained only about the filing of the criminal charges. If Heinemann sought to pursue this alternative theory, then he could have responded to the summary judgment motion by asking for leave to amend his complaint. If he needed more time to investigate or tо obtain evidence he could have sought a continuance under
We affirm the district court‘s grant of summary judgment on the merits.
AFFIRMED.
Judith ROMO; Vincent Taldone; Robin Tayler; Margaret Taylor; Randy Taylor; Ray Teets; Lawrence Tells; Kathryn Temchack; Charles Terry; Veronica Terry; Roberta Thorne; Margaret Tivis; Linda Todd; Delores Toohey; Debra Tourville; Tsouals; Allen Turner; Carolyn Turner; Wanda Turner; Starlet Tyrone; Gloria Underwood; Henry Underwood; Janice Vanison; William Verheyen; Chаrles Vildibill; Sharon Wallgren; Pam Walsh; Sharon Walsh; Keesha Warrior; Latanga Washington; Darlene Watt; James Weiss; Wesley Welborne, III; Debra Wheeler; Marsha Whitt; Carolyn Whyno; Cecilia Wilckens; Sandra Wilemon; Stella
No. 13-56310.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 30, 2013.
Filed Sept. 24, 2013.
Karin Bohmholdt (argued), Ginger Pigott, Amy Alderfer, Greenberg Traurig, LLP, Los Angeles, CA; Lori G. Cohen, Victoria D. Lockard, Greenberg Traurig, LLP, Atlanta, GA; Elliot H. Scherker, Greenberg Traurig, PA, Miami, FL, for Defendant-Appellant.
Stuart B. Esner (argued) and Andrew N. Chang, Esner, Chang & Boyer, Pasadena, CA; Elise R. Sanguinetti, Khorrami Boucher Sumner Sanguinetti, LLP, Oakland, CA; J. Paul Sizemore, The Sizemore Law Firm, El Segundo, CA; Matthew J. Sill, The Sill Law Group PLLC, Edmond, OK, for Plaintiffs-Appellees.
Kate Comerford Todd and Tyler R. Green, National Chamber Litigation Center, Inc., Washington, D.C., for Amicus Curiae Chamber of Commerce of the United States.
James M. Spears and Melissa B. Kimmel, PhRMA, Washington, D.C., for Amicus Curiae PhRMA.
Richard A. Samp and Cory L. Andrews, Washington Legal Foundation, Washington, D.C., for Amicus Curiae Washington Legal Foundation.
Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District Judge.*
Opinion by Judge RAWLINSON; Dissent by Judge GOULD.
OPINION
RAWLINSON, Circuit Judge:
This case presents the issue of whether removal was proper under the “mass action” provision of the Class Action Fairness Act of 2005 (CAFA), Pub.L. No. 109-2, 119 Stat. 4 (2005), when plaintiffs moved for coordination pursuant to
I
Defendant-Appellant Teva Pharmaceuticals USA, Inc. (Teva) appeals the district court‘s order remanding this case to state court. This case was one of twenty-six pеnding before the district court alleging injuries related to the ingestion of propoxyphene, an ingredient found in the Darvocet and Darvon pain medications, as well as in their generic brand counterparts. There are additional propoxyphene cases pending in multidistrict litigation in the Eastern District of Kentucky. See In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 780 F.Supp.2d 1379 (E.D.Ky. 2011).
Propoxyphene is a pain reliever that was used in the United States to treat mild to moderate pain from 1957 through November, 2010, when drugs containing propoxyphene were taken off the market because of the Food & Drug Administration‘s safety concerns. Teva held the rights to the generic formulary of Darvocеt and Darvon, and Plaintiffs allege that Teva was involved in all aspects of the creation, distribution, and sale of generic propoxyphene products.
To date, more than forty actions have been filed in California state courts regarding products containing propoxyphene. On October 23, 2012, a group of attorneys responsible for many of the propoxyphene actions filed a petition asking the California Judicial Council to establish
Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.
After Plaintiffs’ petition for coordination was filed, Teva removed the case to federal district court under CAFA‘s mass action provision.
CAFA provides federal district courts with original jurisdiction over “mass actions” if the actions meet all of the statutory requirements. CAFA defines a mass action as:
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, ...
The district court found that there was no federal jurisdiction under CAFA because Plaintiffs’ petition for coordination did not constitute a proposal to try the cases jointly, and remanded the case back to state court. The district court distinguished this case from the Seventh Circuit‘s decision in In re Abbott Laboratories, Inc., 698 F.3d 568 (7th Cir.2012), explaining that Plaintiffs’ petition for coordination differed from the Plaintiffs’ consolidation request in Abbott because Plaintiffs’ petition focused on pretrial matters while the Plaintiffs’ consolidation request in Abbott specifically sought consolidation “through trial.”
Defendants sought permission to appeal the district court‘s remand order, which we granted on July 26, 2013. We review the district court‘s remand order de novo. See Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 679 (9th Cir.2006).
II
The statutory issue for us to decide is whether the petition seeking coordination of the California propoxyphene actions was a proposal in substance for those actions to be tried jointly. This is a question of first impression in our circuit, as it was for the Seventh Circuit in Abbott.
We start from the well-established premise that the removal statutes are to be strictly construed. See Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir.2013). A corollary precept is that we apply a presumption against removal and construe any uncertainty as to removability in favor of remand. See id.; see also Tanoh v. Dow Chemical Corp., 561 F.3d 945, 953 (9th Cir.2009); Abrego Abrego 443 F.3d at 685. We have correctly observed that CAFA‘s mass action provision is “fairly narrow,” Tanoh, 561 F.3d at 953, given that a qualifying mass action will only be present if there is an aggregate amount in controversy of five million dollars or more, at least one plaintiff who is a citizen of a state or foreign state different from that of any defendant, and “monetary relief claims
And Tanoh makes clear, consistent with the plain language of CAFA, that the proposal to try claims jointly must come from the plaintiffs. 561 F.3d at 953-54. Further, if the statutory requirements under CAFA are not met, Tanoh rejects the idea that we can avoid these statutory terms merely by recourse to general statements in CAFA‘s legislative history, or to the theory that plaintiffs should not be able to “game” jurisdictional statutes to remain in state court. Id. at 954.
Tanoh also instructs that plaintiffs are the “masters of their complaint,” and do not propose a joint trial simply by structuring their complaints so as to avoid the one hundred-plaintiff threshold. 561 F.3d at 953, 956; see also Anderson v. Bayer Corp., 610 F.3d 390, 393 (7th Cir.2010); Scimone, 720 F.3d at 883-84. Under this view, plaintiffs can structure actions in cases involving more than one hundred pоtential claimants so as to avoid federal jurisdiction under CAFA.1
Plaintiffs argue, and the district court agreed, that their analogous petition for coordination was not a proposal to try the cases jointly. We also agree.
Plaintiffs asked for coordination under section 404, and submitted a Memorandum of Points and Authorities in support of the petition for coordination. We now turn to that memorandum to discern whether plaintiffs proposed that the claims of 100 or more persons were “to be tried jointly.”
On page 6 of the Memorandum of Points and Authorities, plaintiffs gave the following explanation for seeking coordination:
Petitioners’ counsel anticipates that the actions will ... involve duplicative requests for the same defendant witness depositions and the same documents related to development, manufacturing, testing, marketing, and sale of the Darvocet Product. Absent coordination of these actions by a single judge, there is
a significant likelihood of duplicative discovery, waste of judicial resources and possible inconsistent judicial rulings on legal issues.
One would be hard pressed to parse a proposal for a joint trial from this language. Rather, the obvious focus was on pretrial proceedings, i.e., discovery matters.
On page 7 of the memorandum, plaintiffs informed the court that coоrdination was also sought because “[u]se of committees and standardized discovery in a coordinated setting will expedite resolutions of these cases, avoid inconsistent results, and assist in alleviating onerous burdens on the courts as well as the parties.” Again, we see emphasis on pretrial proceedings with no mention of a joint trial.
On page 8, the plaintiffs urged coordination on the following bases:
One judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice; Common questions of fact or law are predominating and significant to the litigation; Coordination may serve the convenience of parties, witnesses and counsel the relative development of the actions and the work product of counsel; Coordination may facilitate the efficient utilization of judicial facilities and manpower; Coordination may enhance the orderly calendar of the courts; Without coordination, the parties may suffer from disadvantages caused by duplicative and inconsistent rulings, orders or judgments ...
(Emphases added).
Isolation of phrases such as “for all purposes,” “inconsistent judgments,” and “conflicting determinations of liability” to support a conclusion that the plaintiffs sought a joint trial completely ignores all references to discovery, including on the same page сontaining the reference to liability, where Plaintiffs stated: “[I]n light of the similarity of the actions, there will be duplicate discovery obligations upon the common defendants unless coordination is ordered. Coordination before initiation of discovery in any of the cases will eliminate waste of resources and will facilitate economy....” (Emphases added). As we read the plaintiffs’ petition for coordination, it is quite a stretch to discern a request for joint trial when the clear focus of the petition is on pretrial matters. Reliance on nine words to the exclusion of all else is inconsistent with the principle that any doubt about federal jurisdiction be resolved in favor of remand. See Scimone, 720 F.3d at 882; see also Abrego Abrego, 443 F.3d at 685. In particular, Defendants’ reliance on the plaintiffs’ reference to inconsistent judgments is on shaky ground because judgments may be rendered outside the confines of a trial. Default judgments and summary judgments come readily to mind. See
Neither are we persuaded that we should reach the same result as the Seventh Circuit in Abbott. Not only did that case involve a completely different procedure, consolidation as opposed to coordination, see 698 F.3d at 570, the plaintiffs’ request in that case explicitly and expressly referenced “consolidation of the cases through trial and not solely for pretrial proceedings,” thereby removing any question of the plaintiffs’ intent. Id. at 571 (footnote reference and internal quotation marks omitted).
This case also differs from Mississippi ex rel. Hood v. AU Optronics Corp., 701 F.3d 796 (5th Cir.2012), where the Fifth Circuit concluded that federal jurisdiction existed under CAFA when the State of Mississippi brought an action pursuant to the Missis-
Unlike the AU Optronics case, the plaintiffs here have filed separate lawsuits, none of which have been initiated by the State, so the rationale articulated by the Fifth Circuit is inapposite, even were we inclined to adopt it.2
Finally, we consider the rulings of three different district court judges in this circuit who have determined that similar requests for coordination under this California procedural rule were not the equivalent of a request for a joint trial. See Gutowski v. McKesson Corp., No. C 12-6056 CW, 2013 WL 675540 (N.D.Cal. Feb. 25, 2013); Posey v. McKesson Corp., No. C 12-05939 RS, 2013 WL 361168 (N.D.Cal. Jan. 29, 2013); Rice v. McKesson Corp., No. C 12-05949 WHA, 2013 WL 97738 (N.D.Cal. Jan. 7, 2013). These eminent California judges were practitioners in California prior to taking the bench and their decisions, with their considerable knоwledge of California procedural rules, reinforce our view of the appropriate disposition of this case. We would affirm this fourth California district court judge‘s decision to remand this case to state court.
III
Because we conclude that Plaintiffs’ petition for coordination was not a proposal to try the cases jointly, we AFFIRM the district court‘s order granting Plaintiffs’ motion to remand.3
GOULD, Circuit Judge, dissenting:
I respectfully dissent.
We must decide whether removal is proper under the “mass action” provision of the Class Action Fairness Act of 2005 (“CAFA“), Pub.L. No. 109-2, 119 Stat. 4 (2005), when plaintiffs move for coordination pursuant to
I
The issue before us is whether Plaintiffs’ petition to coordinate actions under
Congress enacted CAFA in 2005 to “curb perceived abuses of the class action device which, in the view of CAFA‘s proponents, had often been used to litigate multi-state or even national class actions in state courts.” Tanoh v. Dow Chemical Co., 561 F.3d 945, 952 (9th Cir.2009) (citation omitted). CAFA further extends federal jurisdiction over “mass action” cases when several requirements are met, although only the “proposed to be tried jointly” requirement is at issue here. See
Proposals for joint trials may be made implicitly, and a “joint trial” may “take different forms as long as the plaintiffs’ claims are being determined jointly.” Abbott, 698 F.3d at 573; see Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759, 762 (7th Cir.2008). For example, an “exemplary” or “bellwether” trial may only feature a small group of plaintiffs, but it is still a joint trial when the claims or issues of a larger group are precluded or otherwise decided by the results. See Koral v. Boeing, Co., 628 F.3d 945, 947 (7th Cir. 2011). We should be looking at the reality оf joint trial proposal, not at how a party may characterize its own actions.
What is critical is that this appeal concerns a set of actions filed in state court followed by a petition by Plaintiffs to coordinate, in part to avoid inconsistent judgments. And so it is on that aspect of this case, distinguishing it from Tanoh, that we should be focused.3
My disagreement with the majority is over the import of the coordination motion and the reasons given for it. The majority focuses on the part of the petition mentioning pretrial discovery and chooses to downplay that part of the petition urging that there be no inconsistent judgments. In doing this, the majority disregards that the рroviso in CAFA makes clear only that matters consolidated exclusively for pretrial purposes are not properly removed to federal court. The majority does not try even to argue, nor could it do so correctly here, that the petition for coordination is limited to pretrial matters. Instead, it argues that the petition “stopped far short of proposing a joint trial.” But there is no applicable judicial precedent supporting the majority‘s proposition that the focus of a coordination petition mentioning pretrial matters in large part may override the reality of a plaintiff‘s prоposal to try claims jointly when the petition seeks relief that would require joint trial. The majority apparently would require an explicit request for a joint trial, whereas I conclude that the substance of what was done is controlling. Recourse to the general principle that doubts on removal should be resolved by favoring the plaintiffs’ forum choice simply does not answer that this case fits CAFA removal like a glove under a reasonable assessment of what is a proposal for joint trial.
Our Ninth Circuit precedent in Tanoh suggests that plaintiffs are the “masters of their complaint,” and do not propose a joint trial simply by structuring their complaints so аs to avoid the one hundred-plaintiff threshold. 561 F.3d at 953, 956; see Anderson v. Bayer Corp., 610 F.3d 390, 393 (7th Cir.2010); Scimone v. Carnival Corp., 720 F.3d 876 (11th Cir.2013). That is not surprising and is analogous to the fact that individuals and corporations can structure transactions so as to avoid statutory prohibitions or terms.
But the United States Supreme Court has recently pointed out that there are limits to how far plaintiffs may go in structuring their complaints to avoid federal jurisdiction. Thus in Standard Fire v. Knowles, the Supreme Court rejected the ability of a proposed class action plaintiff to stipulate that damages would not exceed five million dollars. 568 U.S. 588, 595, 133 S.Ct. 1345, 1350, 185 L.Ed.2d 439 (2013) (“[T]he stipulation at issue here can tie Knowles’ hands, but it does not resolve the amount-in-controversy question in light of his inability to bind thе rest of the class.“). In that case, the plaintiff unsuccessfully attempted to stipulate an amount-in-controversy below five million dollars before his proposed class had been certified. Id. at 1347. Standard Fire arose in the context of a challenge to plaintiffs’ counsel‘s attempt to limit damages before class certification, and the Court recognized that plaintiffs’ counsel could not execute a damages stipulation binding class claimants not yet joined. So Standard Fire is in my view not necessarily controlling on the issue before us as to whether there has been a proposal for joint trial. Because in Standard Fire the Supreme Court appeared to reiterate that plaintiffs are the “masters of their complaint,” id. at 1350, if Plaintiffs merely had structured separate actions with less than one hundred claimants, and did not seek to coordinate them, I must currently think that the Supreme Court would hold, as we did in Tanoh, that no
Plaintiffs argue, and the majority agrees, that their petition for coordination was not a proposal to try the cases jointly. I must respectfully disagree.
Plaintiffs further contend that we should interpret the phrase “joint trial” to mean “a joint trial where more than one party (and for purposes of CAFA 100 or more parties) simultaneously present their claims to a trier of fact.” I would reject this interpretation because it violates the canon against reading a statutory provision in such a way as to render another provision superfluous. See Bilski v. Kappos, 561 U.S. 593, 607-08, 130 S.Ct. 3218, 3228, 177 L.Ed.2d 792 (2010) (citation omitted). If our court were to adopt Plaintiffs’ interpretation of “joint trial,” the mass action statutory exception for “claims [that] have been consolidated or coordinated solely for pretrial proceedings” would be meaningless because a proposal for anything short of a single massive trial for all claimants would already fail the mass action requirement.
Although Plaintiffs argue that the Seventh Circuit decision in Abbott is inapplica-
In light of the specific reasons given for coordination of the California actions that involve propoxyphene, it is a natural and probable consequence of the grant of the petition seeking coordination, indeed it seems an inevitable result, that these varied actions must be tried together, or coordinated in a way to avoid inconsistent results as with bellwether trials, which amounts to the same thing. If the natural and probable consequence of coordination of separate actions has an impact indistinguishable from joint trial, then it is sensible to treat such a petition for coordination as a proposal for joint trial. I conclude that the circumstances presented here are a proposal for a joint trial within the meaning of what Congress said and intended in CAFA, and for that reason would reverse the district court‘s order granting Plaintiffs’ motion to remand.7
James D. MACIEL, Petitioner-Appellant,
v.
Matthew L. CATE; J. Flores, Respondents-Appellees.
No. 11-56620.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 9, 2013.
Filed Sept. 25, 2013.