In J.B. v. Abbott Laboratories Inc., No. 12-cv-385, 2012 U.S. Dist LEXIS 65437, (N.D. Ill. May 9, 2012), the U.S. District Court for the Northern District of Illinois denied remand in four state court actions where the plaintiffs asserted that they suffered severe birth defects from their mothers’ ingestion of anti-epileptic medication during pregnancy.  Prior to removal, the plaintiffs filed a motion to consolidate and transfer all existing and future Illinois cases in the Illinois Supreme Court pursuant to Illinois Supreme Court Rule 384.

The defendant removed the four cases involving at total of 127 plaintiffs pursuant to the mass action provisions of CAFA.  The removal was based upon statements in the plaintiff’s Rule 384 motion that they were seeking consolidation of the cases for purposes of conducting a trial.  The plaintiffs’ motion for remand was denied.  The district court relied on two Seventh Circuit opinions.  First, in Bullard v. Burlington Northern Santa Fe Ry. Co., 535 F.3d 759,762 (7th Cir. 2008) the Seventh Circuit explained that in determining whether an action is a “mass action” “[t]he question is not whether 100 or more plaintiffs answer a roll call in court, but whether the “claims” advanced by 100 or more persons are proposed to be tried jointly.”  Second, in Anderson v. Bayer Corp., 610 F.3d 390, 394 (7th Cir. 2010) the appellate court commented that the mass action provision in 28 U.S.C.§ 1332(d)(11) extends “to a situation where only a few representative plaintiffs would actually go to trial, with claim or issue preclusion to be used to dispose of the remaining claims without trial.”  Based on these two Seventh Circuit decisions, the district court reasoned that “[p]rovided the trial will have an impact on the claims of the one hundred or more plaintiffs in the case at hand, federal jurisdiction under CAFA is proper.  It is insignificant to this analysis whether or not the subsequent trial ends up employing a bellwether approach, pursuing the claims of only one of a few plaintiffs.  The federal jurisdiction is triggered under CAFA at the proposal of a consolidated, or joint trial. J.B. v. Abbott Laboratories, Inc. at *13-14.

The district court rejected the plaintiffs’ argument that the removal was premature because the Illinois Supreme Court had not yet ruled upon the pending motion to consolidate.  The district court noted that the time for removal began to run when the defendant received the Rule 384 motion because under 28 U.S.C. §1446(b) it was a pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. CAFA triggers removal when a joint trial is proposed. 

The district court also rejected the plaintiffs’ argument that the removal was untimely because more than 30 days prior to removal, a state court judge had issued an order stating that all of the related cases would be reassigned to a particular judge “through trial.”  The plaintiffs argued that this language triggered CAFA jurisdiction, but the district court disagreed, citing Koral v. Boeing Co., 628 F.3d 945 (7th Cir. 2011) for the proposition that a court cannot create a “mass action.”  Only a motion by the plaintiffs proposing consolidation for trial establishes federal jurisdiction.