United States District Court, S.D. Illinois
ORDER DISMISSING CASES FOR LACK OF SUBJECT MATTER
J. ROSENSTENGEL United States District Judge
September 23, 2016, the Court raised, sua sponte,
whether subject matter jurisdiction exists over certain cases
in the Depakote litigation. (Doc. 565). The primary concern
was the small percentage of cases that allege complete
diversity of citizenship as the sole basis for subject matter
jurisdiction despite clear incomplete diversity between the
parties. Id. at 1-2. While both sides agree that the
Court has subject matter jurisdiction over 106 of the 116
directly filed cases, the parties differ on the remaining ten
cases. Ironically, Plaintiffs assert that the Court lacks
subject matter jurisdiction over all ten cases, while
Defendants assert that the Court possesses subject matter
jurisdiction over all ten cases.
seven of the ten cases, (13-cv-0622; 13-cv-0890; 14-cv-0001;
15-cv-0102; 15-cv-0186; 15-cv-0472; and 16-cv-0021),
Defendants assert that subject matter jurisdiction exists
because “Plaintiffs alleged [in their complaints] that
‘this court has subject matter jurisdiction pursuant to
28 U.S.C. § 1332' (or substantially similar language
invoking '28 U.S.C. § 1332').” (Doc. 638,
at p. 10.) They argue that by referencing the generic §
1332 diversity statute combined with the assertion that
complete diversity exists, Plaintiffs intended to invoke the
specific mass action provision under subsection 1332(d). This
Court finds that it would be clear error to make such a
sweeping assumption regarding Plaintiffs' intention from
the plain language contained in the complaints. Subject
matter jurisdiction under the Class Action Fairness Act
(“CAFA”) requires a proposal by Plaintiffs to try
the cases jointly before the mass action provision is
triggered. 28 U.S.C. § 1332(d)(11)(B)(i). For the seven
cases listed below, there is no reference to the Depakote
mass action, CAFA, or even any request for a joint trial. The
presence of an existing mass action within a district does
not bestow federal subject matter jurisdiction on a case
simply because they each allege similar facts and legal
theories. The seven cases in this category do not present a
federal question or invoke the provisions of CAFA, and
contrary to the assertion in the complaints, complete
diversity of citizenship does not currently exist.
correct this jurisdictional defect, the Court turns to
Federal Rule of Civil Procedure 21. Rule 21 allows this Court
to drop a nondiverse dispensable party to secure subject
matter jurisdiction in the remaining action. Fed.R.Civ.P. 21;
Newman-Green, Inc. v. Alfonzo-Larrain. 490 U.S. 826,
832 (1989) (“It is well settled that Rule 21 invests
district courts with authority to allow a dispensable
nondiverse party to be dropped at any time…”)
This rule has been used in the Seventh Circuit to dismiss
defendants who destroy federal diversity jurisdiction.
See, e.g., Altom Transport, Inc. v. Westchester Fire Ins.
Co., 823 F.3d 416 (7th Cir. 2016); see also Sta-Rite
Industries Inc. v. Allstate Ins. Co. 96 F.3d 281 (7th
Cir. 1996) (where the Seventh Circuit contemplated dropping a
Plaintiff under Rule 21, but ultimately declined to do so,
finding that the Plaintiff was an indispensable party to the
claim.) When a district court exercises this power to drop a
party to preserve subject matter jurisdiction, the dismissal
under Rule 21 is retroactive. Dexia Credit Local v.
Rogan, 629 F.3d 612, 621 (7th Cir. 2010).
is dispensable to an action when the Court can “accord
complete relief among the existing parties in his absence,
and there are no practical problems that would be created by
his dismissal.” Altom Transp., Inc. v. Westchester
Fire Ins. Co., 823 F.3d 416, 420 (7th Cir. 2016) (citing
Fed.R.Civ.P. 19(a)). Applying this standard to the present
cases, it is clear that the nondiverse Plaintiffs in the
seven Depakote cases are dispensable. Each Plaintiff has an
individual and distinct claim against Defendants, and it is
entirely possible to accord complete relief among the
remaining parties in each of the individual Plaintiff's
Combining multiple claims into a single complaint does not
make each individual claim indispensable from the others.
See LeBlanc v. Cleveland, 248 F.3d 95 (2d Cir. 2001)
(Where the Second Circuit determined that one of two injured
kayakers claiming to be injured by a single motor boat in a
complaint was properly dismissed to preserve subject matter
jurisdiction.) Accordingly, the following Plaintiffs are
DISMISSED from these Depakote proceedings,
James Vailes and minor Plaintiff J.V.
Barbour, et al. v. Abbott Labs., Inc.
Sarah J. DuBeau and minor Plaintiffs C.D.
Moore, et al. v. Abbott Labs., Inc.
Sarah J. DuBeau and minor Plaintiffs J.D.
Moore, et al. v. Abbott Labs., Inc.
Stacy Clemmons and minor Plaintiff A.C.
Milam, et al. v. Abbott Labs., Inc.
Pamela Reyes and minor Plaintiff J.A.
Alexander, et al. v. Abbott Labs., Inc. and
Rebecca Jackson and minor Plaintiff I.G.
Jackson v. Abbott Labs., Inc.
Lorri McDanel and minor Plaintiff A.M.
Bauman, et al. v. Abbott Labs., Inc. and
Sanders, et al. v. Abbott Labs., Inc. and
Rule 21 authority to dismiss the nondiverse Plaintiffs
eliminates the diversity destroying Plaintiffs and ensures
subject matter jurisdiction over the remaining claimants. The
Clerk of Court is DIRECTED to terminate each
Plaintiff listed in the chart above from CM/ECF. For case No.
15-cv-0186, Jackson v. Abbott Labs., Inc., (S.D.
Ill. 2015), the Clerk of Court is DIRECTED
to close the case as Rebecca Jackson and minor Plaintiff I.G.
were the only Plaintiffs therein. Additionally, the Court
reserves its ruling on case No. 13-cv-686, R.R., II, et
al., v. Abbott Laboratories Inc., (S.D. Ill. 2013). Case
No. 13-cv-686 is the same outlier direct ingestion case
referenced in this Court's Order dated October 12, 2016,
and the Court intends to address this issue at the upcoming
status conference. See (Doc. 616, at p. 2).
remaining two directly filed Depakote cases (Case Nos.
13-cv-1041, Clay, et al., v. Abbott Laboratories, et
al., (S.D. Ill. 2013) and 13-cv-1043, Taft et al.,
v. Abbott Laboratories, et al., (S.D. Ill.
2013)) contain only nondiverse parties such that Rule 21
cannot be utilized to ensure subject matter jurisdiction.
Also, the complaints in these two cases expressly assert that
this Court has subject matter jurisdiction under the mass
action jurisdictional provisions of 28 U.S.C.
§1332(d)(2) and (d)(11). See Clay et al., v. Abbott
Laboratories et al., No. 13-CV1041, Doc. 2 at p. 2;
Taft et al. v. Abbott Laboratories et al., No.
13-CV-1043, Doc. 2 at p. 2. Defendants contend that subject
matter jurisdiction is obtained when a Plaintiff files a
separate parallel complaint which invokes CAFA jurisdiction
and vaguely references a pending mass action. (Doc. 638, at
pp. 5-13). Conversely, Plaintiffs appear to contend that CAFA
does not provide original jurisdiction for Plaintiffs to file
directly in federal court and nevertheless, Plaintiffs'
actions are insufficient to join the pending mass
608 at pp. 5-13).
mass action provision of the Class Action Fairness Act
(“CAFA”) expands the diversity requirements under
Section 1332 to provide for “minimum diversity”
when certain conditions are met. 28 U.S.C. §1332(d)(2)
and (d)(11). Concerning Plaintiffs assertion that CAFA works
only as a removal statute, nothing in the language of statute
or the legislative history limits its application as
described by Plaintiffs. Contrary to Plaintiffs assertion,
both section 1332(a) and 1332(d)(2) contain identical
language concerning original jurisdiction. Compare
28 U.S.C. §1332(a); with 28 U.S.C.
§1332(d)(2) (each providing that “[t]he district
court shall have original jurisdiction…” over
any claim that meets the enumerated criteria set forth in
their respective subsections.) The Seventh Circuit has
acknowledged this language and its impact in Hart v.
FedEx Ground Package Sys. Inc., 457 F.3d 675, 680 (7th
Cir. 2006); see also Abrego Abrego v. The Dow Chem.
Co., 443 F.3d 676, 680 (9th Cir. 2006) (“Section
1332(d), added by CAFA, vests the district court with
original jurisdiction of any civil action in which the matter
in controversy exceeds the sum or value of $5, 000, 000,
exclusive of interest and costs, and is a class action in
which the parties satisfy, among other requirements, minimal
diversity.”) (internal quotation omitted). Whether
Plaintiffs file the cases in state court or directly in
federal court, it is clear that federal subject matter
jurisdiction can be obtained by using the minimum diversity
provisions of CAFA.
clear that the Plaintiffs in the removed Depakote mass action
clearly contemplated and wanted additional cases with similar
allegations to be considered part of their action.
See (Doc. 2-2, at p. 2) (requesting that the pending
Depakote cases in the numerous Illinois state courts,
“as well as future Depakote cases….” be
consolidated.) Plaintiffs try to limit the impact and legal
effect of their request by pointing to Koral v. Boeing
Co., 628 F.3d 945, 947 (7th Cir. 2011). (Doc. 652, at p.
2) (“Seventh Circuit law is clear: for a proposal to
effectively consolidate separate plaintiffs' claims for
the purposes of creating a mass action under CAFA,
‘[t]he proposal must be to the court in which the suits
are pending.'”) (quoting Koral, 628 F.3d
at 947). While the proposal for a joint trial triggering a
mass action must occur before the court where the suits are
pending, Koral does not address the circumstance at
hand, i.e., attempts by a Plaintiff to join an
existing mass action.
exact procedure for a party to join a removed mass action is
not clearly defined by any appellate court. There is no
language in CAFA or any indication in the legislative history
that special procedural rules should apply once a mass action
is created. Indeed, the current circumstance is no different
than a nondiverse plaintiff seeking to join an existing Rule
23 class action. In either circumstance, jurisdiction does
not exist until the parties are properly joined to the
action. Whether it is an existing class action, standard
case, or an existing mass action, this Court does not allow a
party to join an existing action simply by filing a parallel
complaint (even when it expressly references an existing case
or class action). Cases that would otherwise lack subject
matter jurisdiction are routinely added to existing cases
under Rule 15, Rule 20, or Rule 24. This Court recognizes that it is
clear that the new Plaintiffs and the original mass action
Plaintiffs intended for the claims to fall within the same
mass action, however, the “procedures” utilized
by the Plaintiffs in Case Nos. 13-cv-1041 and 13-cv-1043 fail
to meet the basic requirements of the Federal Rules of Civil
Procedure. Accordingly, these two cases have not been joined
to the mass action and therefore the Court continues to lack
subject matter jurisdiction. Case Nos. 13-cv-1041, Clay,
et al., v. Abbott Laboratories, et al ., (S.D.
Ill. 2013) and 13-cv-1043, Taft et al., v. Abbott
Laboratories, et al., (S.D. Ill. 2013) are hereby
DISMISSED without prejudice, and the Clerk
of Court is DIRECTED to close these two
on an administrative matter, this Court continues to notice
Plaintiffs' use of footnotes for purposes of case
citation. The excessive use of footnotes has been utilized by
parties in other courts as a page limitation workaround.
See 14-cv-2329-BLF, Free Range Content, Inc., et
al., v. Google Inc., (N.D. Ca. 2014) (noting that in a
25 page brief, Plaintiffs' copious and excessive
footnotes concealed what would have been an additional 16
pages if drafted in the text of the main body). While there
is no evidence to suggest Plaintiffs are utilizing footnotes
citations for such a purpose, the Court nevertheless
recommends that Plaintiffs discontinue their current