In Eagle U.S. 2, L.L.C. v. Abraham, 627 Fed. Appx. 351 (5th Cir. 12/11/15), the Fifth Circuit affirmed remand of several mass actions that had less than 100 persons in each suit. Under CAFA, a state court suit may only be removed if it is a “mass action” with 100 or more plaintiffs whose claims are to be consolidated or tried jointly because of similar fact and legal questions common to the plaintiffs’ claims. The plaintiffs’ counsel in Eagle had 1,700 clients with identical claims. He divided up the claims into 77 separate mass actions (averaging 22 plaintiffs in each case), with identical claims by each plaintiff against the defendant.
The defendant asserted that CAFA applied, based upon “piercing the pleadings” in the 77 different lawsuits to satisfy the 100-person per suit requirement of CAFA. The defendant argued that the 77 suits were really one lawsuit, as all 77 complaints filed by the same lawyers make identical claims on behalf of more than 1,700 plaintiffs and that the 100-or-more-person requirement is satisfied because plaintiffs’ counsel broke up their client base into multiple suits in a tactic to prevent the assertion of jurisdiction under CAFA. Eagle U.S. 2, 627 Fed. Appx. at 353.
The Fifth Circuit disagreed and held:
The “100-or-more-persons” cannot be satisfied by piercing the pleadings across multiple state court actions when the plaintiffs have not proposed that those actions be tried jointly or otherwise consolidated.
Id. Because the case did not involve “100-or-more-persons” it is not a “mass action.” Id.
On the surface, the advantages that plaintiffs seek by being in state court would seem to be outweighed by the burden and expense of 77 separate lawsuits in the same state court assigned to multiple judges – as opposed to a single consolidated proceeding. Under Louisiana law, cases cannot be consolidated for pre-trial purposes only. Presumably, defendants could renew the CAFA removal if some or all of the 77 different lawsuits are consolidated for trial in a Louisiana state court.