11th circuit decision on the numerosity requirement of CAFA’s mass-action provision

by Brian Wolfman

The Class Action Fairness Act (CAFA) provides jurisdiction in federal
district court (originally and by removal) for most minimally diverse
class actions and for so-called "mass actions." Under CAFA, a mass action is, as relevant to this post

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

28 U.S.C. 1332(d)(11)(B)(i).

Consider this case, which arises from a terrible tragedy. A cruise ship wrecks and people die and are seriously injured. Fewer than 100 people sue in state court. But more people indicate their desire to join the suit, and their joinder would bring the total number of plaintiffs to 104. The plaintiffs want to stay in state court. So, the plaintiffs dismiss their first case, and refile as two separate cases in the same state court: one case with 48 plaintiffs and the other with 56 plaintiffs. Again, together that's 104.

The defendant removes the two cases to federal court, saying that the federal court has jurisdiction under CAFA's mass-action provision. The plaintiffs and defendants agree that all CAFA requirements are met except numerosity. The defendant says that there is numerosity because the total number of plaintiffs is 100 or more and when the prospective plaintiffs earlier wanted to join the suit that constituted a "suggestion" to try more than 100 cases together.

The 11th circuit rejected the cruise line's arguments last month in Scimone v. Carnival Corporation on plain-language grounds, noting that the 7th and 9th circuits had come to the same conclusion on similar facts. The court held that the "propos[al]" to try the cases together must come from the plaintiffs (not also the defendant, as Carnival had argued). The 11th circuit also rejected the defendant's argument that the plaintiffs' "artful pleading" shouldn't be allowed to undermine CAFA's purposes. Again, the court said that the text of the s tatute controlled:

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 court left open the question whether a state court's decision to try together claims of 100 plaintiffs, even if dispersed among cases each of which involve fewer than 100 plaintiffs, would be enough to create federal jurisdiction under CAFA's mass-action provision.

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