BERZON, Circuit Judge:
We are asked to decide whether seven individual state court actions, each with fewer than one hundred plaintiffs, should be treated as one "mass action" eligible for removal to federal court under the Class Action Fairness Act of 2005 ("CAFA"), Pub.L. No. 109-2, 119 Stat. 4 (2005). CAFA extends federal removal jurisdiction only to civil actions "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). As neither the parties nor the trial court has proposed jointly trying the claims of one hundred or more plaintiffs in this case, we affirm the district court's order remanding each of the seven individual actions to state court.
Defendant-Appellant The Dow Chemical Company ("Dow") appeals the district court's order remanding the toxic tort claims of 664 West African foreign nationals to state court. Plaintiffs allege that they were exposed to a Dow product containing 1,2-dibromo-3-chloropropane ("DBCP") while working on banana and pineapple plantations in the villages of Ono and Kakoukro in the Ivory Coast.
Dow subsequently filed a notice of removal to federal court, asserting both federal diversity jurisdiction and jurisdiction under CAFA. Dow argued, inter alia, that there was complete diversity between plaintiffs and all properly joined defendants; that several California defendants (AMVAC Chemical Corporation, Dole Food Company, Dole Fresh Fruit Company, Standard Fruit and Steamship Company, and Standard Fruit Company) had been fraudulently joined to defeat removal to federal court; and that the seven actions filed by plaintiffs, taken together, qualified as a "mass action" removable to federal court under CAFA. CAFA defines a "mass action" as
28 U.S.C. § 1332(d)(11)(B)(i). The statute specifies that a "`mass action' shall not include any civil action in which ... (II) the claims are joined upon motion of a defendant; ... or (IV) the claims have been consolidated or coordinated solely for pretrial proceedings." 28 U.S.C. § 1332(d)(11)(B)(ii).
The district court remanded the actions to state court sua sponte, holding that defendants had failed to show that the California companies were fraudulently joined and that removal under CAFA was not proper because each of the actions involved fewer than the one hundred plaintiff statutory minimum for a "mass action" under CAFA. The district court specifically rejected defendants' argument that the claims should be removable because plaintiffs had "strategically sought to avoid federal jurisdiction" by filing several separate state court actions in groups fewer than one hundred. Emphasizing that CAFA specifically excludes actions in which claims have been "joined upon motion of a defendant" from the definition of a "mass action," the court concluded that "[to allow] removal in this case would effect an end-run around the limits Congress itself has imposed on removal pursuant to CAFA."
On appeal of the district court's sua sponte remand orders, a prior panel of this court vacated and remanded, holding that the district court exceeded its authority by ordering a remand sua sponte. See Ayemou v. Amvac Chemical Corp., No. 06-56826 (9th Cir. Aug.20, 2008). Plaintiffs subsequently filed a motion to remand their claims to state court, arguing, inter alia, that defendants had failed to demonstrate that plaintiffs' claims satisfied the $75,000 amount in controversy requirement for federal diversity jurisdiction or the $5,000,000 amount in controversy requirement for removing a "mass action" to federal court under CAFA. See Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 682-86, 688-90 (9th Cir.2006). Plaintiffs also
The district court granted plaintiffs' motion to remand on October 21, relying almost verbatim on the reasoning contained in its earlier sua sponte orders. Dow sought permission to appeal the district court's refusal to exercise jurisdiction under CAFA pursuant to 28 U.S.C. § 1453(c).
The primary issue before us is whether seven individual state court actions, each with fewer than one hundred plaintiffs, should be treated as one "mass action" eligible for removal to federal court under CAFA. To answer this question, we turn to the language of the statute, after first placing that language in context. See Dodd v. United States, 545 U.S. 353, 357, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005).
Congress enacted CAFA in 2005 to "assure fair and prompt recoveries for class members with legitimate claims; [to] restore the intent of the framers ... by providing for Federal court consideration of interstate cases of national importance under diversity jurisdiction; and [to] benefit society by encouraging innovation and lowering consumer prices." CAFA § 2, 119 Stat. at 5. As this description of the Act's purposes makes clear, CAFA was designed primarily to curb perceived abuses of the class action device which, in the view of CAFA's proponents, had often been used to litigate multi-state or even national class actions in state courts. See id. at 4-5. At the same time, however, section 4(a)(11) of the Act also extended federal removal jurisdiction to "mass actions," which were defined as "any civil action (except a [class 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." CAFA § 4(a)(11)(B)(i), 28 U.S.C. § 1332(d)(11)(B)(i). This "mass action" provision is at the heart of the current appeal.
Although plaintiffs in a mass action, unlike in a class action, do not seek to represent the interests of parties not before the court, CAFA provides that a qualifying mass action "shall be deemed to be a class action" removable to federal court under the Act, so long as the rest of CAFA's jurisdictional requirements are met. See 28 U.S.C. § 1332(d)(11)(A). Among these requirements, the aggregate amount in controversy must exceed "$5,000,000, exclusive of interest and costs," and at least one plaintiff must be a citizen of a state or foreign state different from that of any defendant. See 28 U.S.C. § 1332(d)(2), (6). Subsection (d)(11) further limits federal removal jurisdiction in a "mass action" to "those plaintiffs whose claims in a mass
Although CAFA thus extends federal diversity jurisdiction to both class actions and certain mass actions, the latter provision is fairly narrow. As noted above, CAFA's "mass action" provision applies only to civil actions in which the "monetary relief claims of 100 or more persons are proposed to be tried jointly." 28 U.S.C. § 1332(d)(11)(B)(i). By its plain terms, § 1332(d)(11) therefore does not apply to plaintiffs' claims in this case, as none of the seven state court actions involves the claims of one hundred or more plaintiffs, and neither the parties nor the trial court has proposed consolidating the actions for trial.
"[W]hen the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms." Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (internal quotation marks omitted). In this case, concluding that plaintiffs' claims fall outside CAFA's removal provisions is not absurd, but rather is consistent with both the well-established rule that plaintiffs, as masters of their complaint, may choose their forum by selecting state over federal court and with the equally well-established presumption against federal removal jurisdiction. See Lowdermilk v. U.S. Bank Nat'l Ass'n, 479 F.3d 994, 998-99 (9th Cir.2007). We therefore hold that CAFA's "mass action" provisions do not permit a defendant to remove to federal court separate state court actions, each involving the monetary claims of fewer than one hundred plaintiffs.
In spite of the statutory language, Dow contends that allowing plaintiffs to "evade" CAFA by "artificially structur[ing]" their lawsuits to avoid removal to federal court would be inconsistent with congressional purpose. Relying on both the Act's legislative history and two recent, out-of-circuit decisions interpreting a separate provision of the Act, Dow urges us to conclude that plaintiffs' seven actions, viewed together, constitute a single "mass action" under CAFA. Dow's arguments are unpersuasive, for several reasons.
First, as the district court correctly noted, Congress appears to have foreseen the situation presented in this case and specifically decided the issue in plaintiffs' favor. In addition to requiring that a "mass action" include the claims of at least one hundred plaintiffs "proposed to be tried jointly," § 1332(d)(11) specifically provides that "the term `mass action' shall not include any civil action in which ... the claims are joined upon motion of a defendant." 28 U.S.C. § 1332(d)(11)(B)(ii)(II) (emphasis added). Congress anticipated, in other words, that defendants like Dow might attempt to consolidate several smaller state court actions into one "mass action," and specifically directed that such a consolidated action was not a mass action eligible for removal under CAFA.
In light of this statutory directive, we fail to see how the result could be any different in a case such as this one, in which Dow—while never formally moving to consolidate plaintiffs' claims—urges us to treat those claims as if they should have
Second, CAFA contains similar language regarding claims "consolidated or coordinated solely for pretrial proceedings," again specifying that such actions do not qualify as "mass actions." See 28 U.S.C. § 1332(d)(11)(B)(ii)(IV). This provision reinforces our conclusion that Congress intended to limit the numerosity component of mass actions quite severely by including only actions in which the trial itself would address the claims of at least one hundred plaintiffs. In the face of this detailed definition of a "mass action," we cannot sensibly entertain the notion that Congress intended to allow courts to override the considered legislative limitations on the "mass action" concept.
Third, although Dow relies heavily on CAFA's legislative history to argue that plaintiffs should not be permitted to "game" jurisdictional statutes to remain in state court, this legislative history—to the extent it is pertinent
Moreover, while Dow cites a litany of passages from CAFA's legislative history evincing general concern over "copycat" class actions and jurisdictional "gamesmanship," those sections of the Senate Report specifically addressing CAFA's "mass action" provisions support our interpretation of the statute. The Report describes "mass actions," for example, as "suits that are brought on behalf of numerous named plaintiffs who claim that their suits present common questions of law or fact that should be tried together even though they do not seek class certification status," thus emphasizing that the decision to try claims jointly and thus qualify as a "mass action" under CAFA should remain, as we concluded above, with plaintiffs. S.Rep. No. 109-14, at 46, reprinted in 2005 U.S.C.C.A.N. 3, 43-44; see also id. ("Under
Fourth, the out-of-circuit cases relied upon by Dow do not detract from our conclusion, as none of them addressed CAFA's "mass action" or numerosity provisions. Both Freeman v. Blue Ridge Paper Products, Inc., 551 F.3d 405 (6th Cir. 2008), and Proffitt v. Abbott Laboratories, 2008 WL 4401367 (E.D.Tenn. Sept.23, 2008), involved plaintiffs who attempted to split their claims into multiple suits covering discrete time periods so as to expand their recovery without triggering CAFA's $5 million amount in controversy requirement. In Freeman, for example, plaintiffs divided their nuisance class action against a paper mill into "five separate suits covering distinct six-month time periods, with plaintiffs' limiting the total damages for each suit to less than CAFA's $5 million threshold." 551 F.3d at 406. In Proffitt, plaintiffs similarly divided their anti-trust class action into "eleven lawsuits that are identical except for the time periods that they allege to cover." 2008 WL 4401367 at *1. Each of the eleven complaints included a disclaimer limiting damages for the covered time period to $4,999,000. Id. at *2.
In both cases, the court rejected plaintiffs' creative attempts to avoid CAFA's amount in controversy requirement, holding that removal was proper because the time divisions were "completely arbitrary," as there was "no colorable reason for breaking up the lawsuits in this fashion, other than to avoid federal jurisdiction." Freeman, 551 F.3d at 407; Proffitt, 2008 WL 4401367 at *2. Central to the courts' holdings, however, was the fact that both sets of plaintiffs split their claims in an effort to seek well over $5 million in total damages without triggering federal removal jurisdiction. As the Sixth Circuit explained, plaintiffs are generally allowed to plead around federal jurisdiction at a cost: they must limit the damages they seek to less than CAFA's $5 million threshold. See 551 F.3d at 409. Permitting plaintiffs to split their claims arbitrarily by time period threatened to subvert this rule, enabling plaintiffs to seek well over $5 million—in Freeman, for example, almost $25 million among the five suits—without subjecting themselves to federal removal jurisdiction. The court rebuffed this end-run around CAFA, holding that "where recovery is expanded, rather than limited, by virtue of splintering of lawsuits for no colorable reason, the total of such identical splintered lawsuits may be aggregated." Id.; see also Proffitt, 2008 WL 4401367 at *5.
The concerns animating Freeman and Proffitt simply are not present in this case, as none of the seven groups of plaintiffs has divided its claims into separate lawsuits to expand recovery. To the contrary, each of the seven state court actions was brought on behalf of a different set of plaintiffs, meaning that none of the plaintiff groups stands to recover in excess of CAFA's $5 million threshold between the seven suits.
More importantly, neither Freeman nor Proffitt addressed the specific statutory provisions at issue here. Both cases involved class actions rather than mass actions, and it was undisputed that both plaintiff classes easily exceeded CAFA's
Dow, of course, urges us to adopt a broader reading of Freeman and Proffitt, arguing that those cases stand for the general proposition that plaintiffs' lawyers cannot "game" the system by artificially structuring their suits so as to avoid CAFA jurisdiction. The decisions themselves, however, disclaim any such reading. The Sixth Circuit specifically "limited [its holding] to the situation where there is no colorable basis for dividing up the sought-for retrospective relief into separate time periods, other than to frustrate CAFA." Freeman, 551 F.3d at 409 (emphasis added). Moreover, as noted above, Freeman's holding was limited to cases "where recovery is expanded, rather than limited, by virtue of splintering of lawsuits." Id. In the same paragraph, the Sixth Circuit reaffirmed the general rule that "if a plaintiff `does not desire to try his case in the federal court he may resort to the expedient of suing for less than the jurisdictional amount, and though he would be justly entitled to more, the defendant cannot remove.'" Id. (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294, 58 S.Ct. 586, 82 L.Ed. 845 (1938)).
In short, by its plain language, CAFA's "mass action" provisions apply only to civil actions in which "monetary relief claims of 100 or more persons are proposed to be tried jointly." 28 U.S.C. § 1332(d)(11)(B)(i). None of the seven state court actions removed to federal court by Dow involves the claims of one hundred or more persons proposed to be tried jointly, and the actions are therefore not removable to federal court under CAFA.
Plaintiffs' separate state court actions may, of course, become removable at same later point if plaintiffs seek to join the claims for trial. See Bullard, 535 F.3d at 761-62. We express no opinion as to whether a state court's sua sponte joinder of claims might allow a defendant to remove separately filed actions to federal court as a single "mass action" under CAFA.
In light of our disposition, we also do not reach plaintiffs' alternative argument that Dow has failed to establish that plaintiffs' claims satisfy CAFA's jurisdictional