HELEN BERRIGAN, Chief Judge, District
Before the Court is Plaintiffs', Shirley Kemp, et al., Second Motion to Remand. Also, before the Court is Defendants', Metabolife International, Inc. (hereinafter sometimes referred to as "Metabolife") and Mike Ellis, Motion to Sever the Claims of 302 Plaintiffs in this case, Referred to as Category 2 and 3 Plaintiffs. After a thorough review of the record, the memoranda, and the law, the Plaintiffs' Motion is DENIED and Defendants' Motion is PARTIALLY DENIED and PARTIALLY GRANTED.
I. PROCEDURAL HISTORY
On October 25, 2000, an action styled as a class action was filed in the twenty-third judicial district court for the Parish of St. James, State of Louisiana entitled: Shirley Kemp and All Other Similarly Situated Persons v. Metabolife International, Inc. and Mike Ellis, Case No. 27150. The Defendants received notice of that action on October 30, 2000. That action was removed by the Defendants to the Eastern District of Louisiana on November 28, 2000 based on 28 U.S.C. § 1441, 28 U.S.C. § 1332, and 28 U.S.C. § 1367.
On May 9, 2001, Plaintiffs moved to remand the case based on lack of subject matter jurisdiction. That motion was denied.
Class certification was denied on January 25, 2003.
On July 16, 2003, the Magistrate Judge Chasez held a status conference with the parties. During that conference, the Plaintiffs were ordered "to dismiss, without prejudice, those plaintiffs whose claims do not meet the $75,000 jurisdictional amount" on or before August 15, 2003. These Plaintiffs are referred to as Category 2 and 3 Plaintiffs. On August, 14, 2003, the August 15 deadline was extended to September 1, 2003.
Rather than move to dismiss plaintiffs voluntarily, Plaintiffs filed their Second Motion to Remand on September 2, 2003 asserting that this Court lacks subject matter jurisdiction over this action in light of the United States Supreme Court's decision in Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2002).
The Defendants have not argued that Plaintiffs are estopped from rearguing their motion based on the judicial doctrine of the law of the case. Because the Court denies this motion on its merits, it is unnecessary to discuss that issue further.
On September 3, 2003, Defendants filed their Motion to Sever the Claims of 302 Plaintiffs in this case or, alternatively, to Dismiss the Claims of All Category 2 and Category 3 Plaintiffs Without Prejudice. On September 16, 2003, Defendants dropped their alternative request to Dismiss the Claims of All Category 2 and Category 3 Plaintiffs Without Prejudice.
II. BACKGROUND
The representatives of the putative class at the time of removal were all residents of Louisiana. Defendant, Metabolife International, Inc., is incorporated under the laws of California and has its principal place of business in California. Defendant, Mike Ellis, is a domiciliary of California. Moreover, the class representatives alleged an amount in controversy greater than $75,000 excluding costs and fees, with the exception of the class representatives' entitlement to attorney's fees under Article 595(A) of the Louisiana Code of Civil Procedure.
III. LAW AND ANALYSIS
Plaintiffs Motion to Remand
The parties may neither consent to nor waive federal subject matter jurisdiction. See Simon v. Wal-Mart Stores, Inc., 193 F.3d 848 (5th Cir. 1999). Normally, where jurisdiction is premised on diversity of citizenship, the parties must be diverse and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a). However, one notable and important exception to this general rule exists for class actions either brought in federal court under Rule 23 of the Federal Rules of Civil Procedure or removed from state court.
In class actions, only the named representatives of the class or putative class must be diverse from the defendants. Synder v. Harris, 394 U.S. 332, 340 (1969); Aetna Cas. Surety Co. v. Iso-Tex, Inc., 75 F.3d 216, 218 (5th Cir. 1996). Also, only one of the members of the class is required to claim an amount exceeding the jurisdictional threshold of $75,000. Free v. Abbott Laboratories, Inc., 176 F.3d 298 (5th Cir. 1995), affirmed per curiam by an equally divided court, 529 U.S. 333 (2000). Moreover, even if the putative class is denied class certification, subject matter jurisdiction must be determined as if the putative class were an actual class. H D Tire Automotive-Hardware, Inc. v. Pitney Bowes, Inc., 227 F.3d 326 (5th Cir. 2000); Pollet v. Travelers Prop. Cas. Ins. Co., 2002 WL 253204 (E.D. La. February 20, 2002). Last, since article 595(A) of the Louisiana Code of Civil Procedure entitles the class representatives to recover attorneys' fees, class actions filed in Louisiana State Court will virtually always be removable. Grant v. Chevron Phillips Chemical Co., L.P., 309 F.3d 864 (5th Cir. 2002).
Plaintiffs, however, argue that this current state of the law is somehow changed by the United States Supreme Court's decision in Syngenta Crop Protection, Inc., 537 U.S. 28, in which the Court held that 28 U.S.C. § 1652, the All Writs Act, could not form the basis for a court's assertion of subject matter jurisdiction.
Plaintiffs contend that article 595(A) of the Louisiana Code of Civil Procedure is an attempt by the Louisiana legislature to create federal jurisdiction, and that Syngenta Crop Protection, Inc., expressly disallows this attempt. While this contention is not related to the argument advanced by the Defendants in Syngenta Crop Protection, Inc., the Plaintiffs are correct in asserting that the Louisiana legislature cannot grant subject matter jurisdiction to a federal court. However, article 595(A) of the Louisiana Code of Civil Procedure does not purport to create subject matter jurisdiction but is rather a matter of Louisiana State substantive law governing the amount recoverable by the class representatives in a class action.
Therefore, this Court has Subject Matter Jurisdiction over the claims of the Plaintiffs. Accordingly, remand is improper.
Defendants' Motion to Dismiss or Sever
The Defendants move the Court to sever the claims of the Category 2 and Category 3 plaintiffs pursuant to Rule 20 of the Federal Rules of Civil Procedure. Defendants claim, first, that severance is proper because the Plaintiffs were misjoined because their claims do not arise out of the same transaction, occurrence, or series of transactions or occurrences as required by Rule 20 of the Federal Rules of Civil Procedure. Secondly and alternatively, Defendants claim that severance should be granted for trial purposes pursuant to Rule 20(b) of the Federal Rules of Civil Procedure.
Defendants asserted that severance should be allowed for trial purposes under Rule 21 of the Federal rules of Civil Procedure. Rule 21 deals with Misjoinder and Nonjoinder. The appropriate Rule is Rule 21(b).
Rule 20(a) of the Federal Rules of Civil Procedure provides:
"All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action,"
F.R.C.P. 20.
As such, the Rule requires (1) the plaintiffs' claims to arise out of the same transaction, occurrence, or series of transactions or occurrences and (2) the plaintiffs' claims encompass common question(s) of law or fact. Defendants do not contend that there are not questions of law or fact common to all these persons but do suggest that the plaintiffs' claims do not arise out of the same transaction, occurrence, or series of transactions or occurrences.
As a side note, the Defendants' argument on this point ignores the fact that, if the Plaintiffs claims do not arise out of the same transaction, occurrence, or series of transactions or occurrences, than Plaintiffs' claims are likely not part of the same `case or controversy' as contemplated by 28 U.S.C. § 1367. If this were the case, then this court would not have subject matter jurisdiction over the claims of those plaintiffs who cannot independently satisfy the threshold amount in controversy of 28 U.S.C. § 1332. This lack of subject matter jurisdiction, in turn, would necessitate remand against which Defendants have adamantly argued.
Defendants cite several cases they contend support their position. In re Phenylpropanolamine (PPA) Products Liability Litigation, 214 F.R.D. 614 (W.D. Wash. 2003); In re Rezulin Products Liability Litigation, 168 F. Supp.2d 136, 146 (S.D.N.Y. 2001); In re Diet Drugs, 1999 WL 554584 at *3-4 (E.D. Pa. July 16, 1999); Simmons v. Wyeth Laboratories, Inc., 1996 WL 617492 at *3 (E.D. Pa. October 24, 1996); In re Orthopedic Bone Screw Products Liability Litigation, 1995 WL 428683 at * 1 (E.D. Pa. July 17, 1995); In re Matter of Asbestos II consolidated Pretrial, 1989 WL 56181 (N.D. Ill. May 10, 1989).
The current case is distinguishable from every case Defendants cite. Each of the cases defendants cite involved either plaintiffs from geographically diverse areas, or plaintiffs suing different defendants, or plaintiffs suing on different theories of recovery. In this case, the same two defendants, Metabolife and Mike Ellis, allegedly sold Metabolife 356 to every single Plaintiff, each of whom comes from a geographically proximate area and each of whom now asserts a failure to warn claim under the Louisiana Products Liability Act. Alexis v. Glaxo Smith Kline Corp., 2002 WL 1022261 (E.D. La. May 17, 2002) (holding that joinder was proper where plaintiffs all suffered from ingestion of the same drug); Dayton Independent School Dist. v. U.S. Mineral Products Co., 1989 WL 237732 at *3 (E.D. Tex. Feb 14, 1989) (joinder of plaintiffs in products liability suit is proper when they all assert damages caused by a common defect).
In Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1146 (5th Cir. 1985), the Fifth Circuit succinctly stated on this issue:
The case-by-case adjudication process will delay decision for years if not decades, burden both claimants and manufacturers with massive litigation costs, leave claimants uncertain about the possibilities of eventual recovery and manufacturers unable to determine their financial exposure, and clog judicial systems so that parties to other litigation are also denied speedy resolution of their disputes.
Accordingly, Plaintiffs' claims should not be severed under Rule 20.
Nevertheless, Defendants' second contention that severance should be granted for trial purposes pursuant to Rule 20(b) of the Federal Rules of Civil Procedure does have merit. Under Rule 20(b), the Court "may order separate trials . . . to prevent delay or prejudice." F.R.C.P. 20(b). The trials of all the Plaintiffs' claims would unduly confuse the jury. Jury confusion would undoubtedly cause prejudice to the parties. Separate trials are, in this case, appropriate.
IV. ORDER
Accordingly, Plaintiffs' Second Motion to Remand is DENIED. Defendants' Motion to Sever the Claims of 302 Plaintiffs in this case or, alternatively, to Dismiss the Claims of All Category 2 and Category 3 Plaintiffs Without Prejudice is DENIED.
IT IS FURTHER ORDERED that the claims of the Plaintiffs be severed for trial purposes pursuant to Rule 20(b) of the Federal Rules of Civil Procedure.