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Moll v. Hasbro

August 2, 2007

LOIS MOLL, PATRICIA SUTTERER, AND SHIRLEY GORMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
HASBRO, INC., A FOREIGN CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM and ORDER

I. Introduction and Background

Now before the Court is Plaintiffs' motion to remand (Doc. 9). Defendant opposes the motion (Doc. 19). Based on the record, the applicable case law and the following, the Court grants the motion.

On April 13, 2007, Defendant Hasbro, Inc. ("Hasbro") removed this action from the St. Clair County, Illinois Circuit Court asserting federal subject matter jurisdiction on the basis of 28 U.S.C. § 1332, as amended by the Class Action Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.) (Doc. 2). This putative class action is based on Hasbro's conduct related to its advertisement, selling, and distribution in Illinois and throughout the United States of its Electronic Catch Phrase game as a fully functioning game when allegedly each of the games suffered from the same common defect and Hasbro's failure to disclose the defects to consumers in Illinois and throughout the United States.

Plaintiffs have moved to remand arguing Hasbro's removal was improper because the Second Amended Complaint withdraws several causes of action, narrows another cause of action, narrows the proposed class definition and is based on the same conduct by Hasbro with regard to the same product. Hasbro responds that Plaintiffs' Second Amended Complaint asserts new claims based on the law of Rhode Island and added new parties which commenced a new, removable cause of action.

The original Complaint alleges consumer fraud; unjust enrichment; common law fraud; breach of implied warranty; breach of express warranty and breach of covenant of good faith dealing. Further, the original Complaint defined the proposed class as:

All persons in the United States who purchased Hasbro, Inc.'s Electronic Catch Phrase game. Excluded from the Class are members of the Illinois judiciary, any jurors who are called upon to hear this matter, Plaintiff's counsel, and the officers, directors and employees of Defendant.

(First Amended Complaint, ¶ 23). The Second Amended Complaint filed on March 28, 2007, alleges consumer fraud; unjust enrichment; and breach of the covenant of good faith and fair dealing. Further, the Second Amended Complaint defines the proposed class as:

All persons in the United States who, after March 2003, purchased the first edition of Hasbro, Inc.'s Catch Phrase game. Excluded from the Class are persons who only purchased Defendant's Electronic Cath Phrase (Second Edition), members of the Illinois Judiciary, any jurors who are called upon to hear this matter, Plaintiffs' counsel, and the officers, directors and employees of Defendant.

(First Amended Complaint, ¶20).

II. Legal Standards

Removal of actions from state court to federal court is governed by 28 U.S.C. § 1441, which provides that "any civil action brought in a State court of which the district courts of the United States may have original jurisdiction, may be removed by defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). The defendant has the burden of establishing that an action is removable, and doubts concerning removal must be resolved in favor remand to the state court. See Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 448 (7th Cir. 2005).

"The CAFA is not retroactive and therefore only applies to class actions which are 'commenced on or after the date of enactment' of the statute, February 18, 2005." Schillinger v. 360 Networks USA, Inc., Civil No. 06-0138-GPM, 2006 WL 1388876 at *2 (S.D. Ill. May 18, 2006)(quoting Pub.L. 109-2, § 9, 119 Stat. 4). It alters the traditional requirements for federal diversity jurisdiction in class actions. For applicable cases, CAFA gives district courts original jurisdiction over a civil "class action..." with an amount in controversy in excess of $5,000,000. 28 U.S.C. § 1332(d). Therefore, class actions fitting the scope of CAFA are removable in accordance with 28 U.S.C. § 1446. See 28 U.S.C. § 1453(b).

A case "commences" for purposes of the CAFA when the plaintiff's complaint is filed in state court, not when it is removed. Knudsen v. Liberty Mut. Ins. Co., 411 F.3d at 806. Routine amendments to the complaint relate back to the date of original filing and do not commence new suits. Schorsch v. Hewlett Packard Co., 417 F.3d 749, 751 (7th Cir. 2005) (noting that under Illinois law, which applies here, an amendment to a complaint relates back when the original complaint "'furnished to the defendant all the information necessary . . . to prepare a defense to the claim subsequently asserted in the amended complaint'" (citing Boatmen's National Bank of Belleville v. Direct Lines, Inc., 656 N.E.2d 1101, 1107 (Ill. 1995)); see also Phillips v. Ford Motor Co., 435 F.3d 785 (7th Cir. 2006); Schillinger v. Union Pacific R.R., 425 F.3d 330 (7th Cir. 2005). However, "an amended complaint kicks off a new ...


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