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Anderson v. Bayer Corp.

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SUBMITTED FEBRUARY 22 2010

Before FLAUM, MANION, and EVANS, Circuit Judges.

Defendants (collectively referred to as “Bayer”) have petitioned for leave to appeal the remand orders issued by the district court in the four above-captioned cases. In five separate, mostly identical complaints in state court, plaintiffs sued Bayer for personal injuries they allege were caused by Trasylol, a prescription medication manufactured by Bayer. Defendants removed, invoking the “mass action” provision of the Class Action Fairness Act (“CAFA”), which allows the removal of cases joining the claims of at least 100 plaintiffs that otherwise meet CAFA’s jurisdictional requirements. The district court remanded four of the five cases because they contained fewer than 100 plaintiffs (in the fifth case plaintiffs meant to include 99 plaintiffs, but actually named two-coexecutors in the same paragraph for a total of 100 plaintiffs). Bayer asks us to grant its petitions for review in the four cases remanded to state court and hold that (1) plaintiffs cannot avoid federal diversity jurisdiction by carving their filings into five separate pleadings, and (2) there is diversity jurisdiction over most plaintiff’s claims because the claims of the small number of non-diverse plaintiffs were fraudulently misjoined and should be severed. Because we agree with the district court on the first question, we conclude that we are without jurisdiction to reach the second.

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