LOKEN, Circuit Judge.
In the Class Action Fairness Act of 2005 ("CAFA"), Congress permitted removal from state to federal court of certain class actions, including "mass actions." 28 U.S.C. §§ 1332(d), 1453(a) and (b). "[T]he term `mass action' means 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," § 1332(d)(11)(B)(i), but does not include an action in which "the claims have been consolidated or coordinated solely for pretrial proceedings," § 1332(d)(11)(B)(ii)(IV).
Groups of plaintiffs filed product liability actions in Missouri's Twenty-Second (City of St. Louis) Judicial Circuit against four manufacturers of transvaginal mesh medical devices. Three groups included claims against Boston Scientific Corporation for alleged defects in its devices.
I. Two Jurisdictional Issues
Evans and Taylor argue their state court motions for assignment to a single judge gave sufficient notice the cases had become removable; therefore, Boston Scientific's notices of removal, filed nearly five months later, were untimely. We disagree. The thirty-day time limit begins running when a plaintiff "explicitly discloses" she is seeking a remedy that affords a basis for federal jurisdiction. Knudson v. Sys. Painters, Inc., 634 F.3d 968, 974 (8th Cir.2011). Here, plaintiffs' assignment motions attempted to limit their request to coordination of pretrial proceedings, which would keep the cases outside the definition of a mass action. See 28 U.S.C. § 1332(d)(11)(B)(ii)(IV). Only when plaintiffs' attorneys made clear the extent of consolidation being sought at the state court motions hearing did Boston Scientific have a basis for removal. These oral statements, made at a court hearing and later transcribed, like deposition testimony, satisfy § 1446(b)(3)'s "other paper" requirement. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 887 (9th Cir.2010); Peters v. Lincoln Elec. Co., 285 F.3d 456, 465-66 (6th Cir.2002).
II. The Merits
Although plaintiffs concede that their respective individual claims "involve common questions of law or fact," 28 U.S.C. § 1332(d)(11)(B)(i), state court plaintiffs with common claims against a common defendant may bring separate cases with fewer than 100 plaintiffs each to avoid federal jurisdiction under CAFA —
In the Evans and Taylor cases, the district court concluded that Boston Scientific's removal "runs afoul of the clear statutory language, i.e., that there is a single trial of 100 or more persons." Like Judge Easterbrook in an early Seventh Circuit CAFA case, we conclude that construing the statute to require a single trial of more than 100 claims would render 28 U.S.C. § 1332(d)(11) "defunct":
Bullard v. Burlington N. Santa Fe Ry., 535 F.3d 759, 762 (7th Cir.2008). Thus, as Judge Posner noted in a subsequent Seventh Circuit case, in determining whether plaintiffs have "proposed" that their claims be tried jointly, "the proposal can be implicit... [and t]he joint trial could be limited to one plaintiff (or a few plaintiffs).... That form of bifurcation is common in class actions, and a mass action is a form of class action." Koral v. Boeing Co., 628 F.3d 945, 947 (7th Cir.2011).
Framing the issue in this manner, the critical issue becomes whether the three groups of plaintiffs proposed that their claims be "tried jointly," in which case § 1332(d)(11)(B)(i) applies and the cases are removable, or simply asked that their respective claims be "consolidated or coordinated solely for pretrial proceedings," in which case § 1332(d)(11)(B)(ii)(IV) applies and the cases are not removable. The answer to this question requires careful review of the proceedings in the City of St. Louis Circuit Court. In that Court, cases are initially docketed for trial in Division I, where the presiding judge sits, and assigned to a motion division judge who prepares the case for trial. Then, as trial approaches, the presiding judge assigns the case to a general division judge for final disposition. However, Local Rule 6.2.1 permits the presiding judge to "assign extraordinary cases requiring individual and continuing attention to general divisions for trial setting, pretrial motions and trial." And Local Rule 6.2.4 provides that
Here, each plaintiff group moved for special assignment to a single judge under these rules. The Atwell group first moved to have its case assigned "to a single Judge for purposes of discovery and trial." The motion did not request a common assignment
On June 6, the presiding judge held a combined hearing on all three motions. At the hearing, plaintiffs' counsel argued:
On July 3, Boston Scientific removed all three cases to the Eastern District of Missouri, asserting that court has jurisdiction under CAFA because plaintiffs proposed to join their cases into a mass action with more than 100 plaintiffs. In Atwell, the district court construed counsel's hearing statements as requesting only that a single judge handle both the pretrial and trial proceedings in the Atwell case. The court saw no desire to consolidate Atwell with other transvaginal mesh cases and read the "bellwether" reference as a mere prediction, not a proposal. In Evans and Taylor, the district court construed counsel as suggesting only pretrial coordination and saw no indication that consolidation with Atwell had been proposed.
In our view, the district courts erred in failing to follow (Evans and Taylor) or to properly apply (Atwell) the Seventh Circuit's decision in In re Abbott Laboratories, Inc., 698 F.3d 568 (7th Cir.2012). In that case, several hundred plaintiffs filed ten personal injury actions against Abbott Labs in three state courts and moved the Supreme Court of Illinois to exercise its discretion under a Court rule allowing for "consolidated pretrial, trial, or post-trial proceedings." Id. at 570-71. Plaintiffs stated they were requesting consolidation "through trial" and "not solely for pretrial proceedings." Id. Abbott Labs removed. The district court remanded the cases. Plaintiffs did not "contemplate ... a joint trial of the hundreds of claims asserted," the court concluded, noting that "so-called `mass tort' cases are never tried in their
Id. at 573 (emphasis in original). By contrast, in Romo v. Teva Pharmaceuticals USA, Inc., 731 F.3d 918, 921 (9th Cir.2013), attorneys for many plaintiffs in forty product liability actions filed in California state courts asked the California Judicial Council to invoke a state rule of procedure allowing coordination of common actions "for all purposes." In affirming the district court's remand order, the panel majority distinguished Abbott Labs because it involved consolidation rather than coordination, and because plaintiffs in Abbott Labs requested consolidation "through trial ... thereby removing any question of [their] intent." Id. at 923. Judge Gould in dissent found Abbott Labs "both persuasive and relevant" because plaintiffs did not limit their request to pretrial matters. When plaintiffs urged the state court to coordinate many state actions to avoid inconsistent judgments, Judge Gould concluded:
Id. at 928 (Gould, J., dissenting). We agree with Abbott Labs and with Judge Gould's interpretation of the statute and the Abbott Labs decision.
Here, at the motion hearing, counsel for the Evans and Taylor plaintiffs, while disavowing a desire to consolidate cases for trial, nonetheless urged the state court to assign the claims of more than 100 plaintiffs to a single judge who could "handle these cases for consistency of rulings, judicial economy, [and] administration of justice." Counsel for the Atwell plaintiffs was even more explicit, explaining that the motion was intended "to have it assigned to the judge that's going to try the case because of the complexity that's going to occur all the way through.... There's going to be a process in which to select the bellwether case to try."
We disagree with the district court's conclusion that counsel's "anticipation of a bellwether trial" was simply "a prediction of what might happen if the judge decided to hold a mass trial." That was a quote from Judge Posner's opinion in Koral But plaintiffs in Koral were resisting defendant's motion to dismiss, not supporting a motion to place multiple cases in a procedural setting where bellwether trials would be the normal way to efficiently prevent inconsistent judgments. 628 F.3d at 946. Here, counsel's statements revealed the purpose of their motions — a joint assignment in which the "inevitable result" will be that their cases are "tried jointly." As in Abbott Labs, "it is difficult to see how a trial court could consolidate the cases as
For these reasons, we grant Boston Scientific's petitions for permission to appeal, vacate the district court orders remanding the three cases to state court, and remand the cases to the district court for further proceedings not inconsistent with this opinion. Because we rule on the petitions for permission to appeal and the merits simultaneously, we fully dispose of this appeal within sixty days of granting the petitions, as 28 U.S.C. § 1453(c)(2) requires. See Patterson v. Dean Morris, L.L.P., 444 F.3d 365, 370 (5th Cir.2006) (sixty-day period begins on the day leave to appeal is granted); accord In re Mortg. Elec. Reg. Sys., Inc., 680 F.3d 849, 852-53 (6th Cir.2012) (collecting cases). We grant Boston Scientific's motion to consolidate the petitions for permission to appeal and the motions by counsel for Evans and Taylor for leave to file a sur-reply.