Ferruh Koral v. Boeing Company

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-8035, 10-8036, 10-8039, 10-8040,
10-8041, 10-8042, 10-8048
FERRUH KORAL, et al.,
Plaintiffs-Respondents,
v.
BOEING COMPANY,
Defendant-Petitioner.
Petitions for Permission to Appeal from the
United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 10 C 6636, 10 C 6640, 10 C 6611, 10 C 6613,
10 C 6634, 10 C 6662, 10 C 6639—Milton I. Shadur,
Ronald A. Guzmán, Suzanne B. Conlon,
Sharon Johnson Coleman, Amy J. St. Eve, Judges.
SUBMITTED DECEMBER 6, 2010—DECIDED JANUARY 4, 2011
Before POSNER, WOOD, and TINDER, Circuit Judges.
POSNER, Circuit Judge. Boeing seeks permission to
appeal under the provision of the Class Action Fairness
Act that allows the court of appeals to entertain an
appeal from an order remanding to the state court a

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2 Nos. 10-8035, 10-8036, 10-8039, 10-8040, et al.
purported “mass action” removed to federal district court
under the Act. See 28 U.S.C. §§ 1332(d), 1453(a), (c). A
“mass action” is a suit “in which monetary relief claims
of 100 or more persons are proposed to be tried jointly
on the ground that the plaintiffs’ claims involve com-
mon questions of law or fact.” 28 U.S.C. § 1332(d)(11)(B)(i).
Boeing has been sued in an Illinois state court in
29 separate actions all arising from the crash of a Turkish
airliner (built by Boeing) in the Netherlands in 2009.
The plaintiffs are victims (or representatives of victims)
injured or killed in the crash. In several of the suits there
is more than one plaintiff; the total number of plaintiffs
in the 29 suits is 117. Although the Illinois court has
jurisdiction over the suits because Boeing’s headquarters
is in Illinois, only one of the plaintiffs is an Illinois
resident (the rest are foreigners) and the evidence
relating to the design and construction of the Boeing
airliner that crashed is, Boeing contends, in the State of
Washington, where the plane was manufactured, rather
than in Illinois. So Boeing filed a motion in the state
court to dismiss the case under the doctrine of forum non
conveniens, arguing among other things that it would be
a considerable inconvenience for its employees in Wash-
ington to have to travel repeatedly to Illinois to testify in
29 different trials. The motion, as far as we know, has
not been ruled on.
In opposing the motion the plaintiffs stated: “Practically
speaking, Boeing’s suggestion . . . that its employees
will have to come to Chicago, Illinois for ‘several’ trials
is not true. As this Court is aware, in aviation disaster

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Nos. 10-8035, 10-8036, 10-8039, 10-8040, et al. 3
cases, several exemplar cases are routinely tried on one
occasion at which time the issue of liability is deter-
mined for the remainder of the cases. Thus, to the
extent there is a trial, Boeing’s witnesses will in all likeli-
hood not have to travel to Chicago, Illinois several times.
[Boeing’s affiant] agreed that if that were the case [i.e.,
one trial], it would not be as inconvenient for Boeing
witnesses to come to Chicago.”
On the basis of this response, Boeing removed the state
court cases to federal district court, arguing that the
statement of the plaintiffs that we’ve quoted was a pro-
posal for a joint trial, and thus (given the number of
plaintiffs) made the 29 separate suits arising from the
plane crash a mass action removable under the Class
Action Fairness Act. The district judges to whom the
removed cases were assigned do not agree—at least
those judges who have granted the seven motions to
remand thus far ruled on—precipitating Boeing’s peti-
tions for leave to appeal. We have decided to grant the
petitions because the appeal presents novel issues, as in
such other CAFA cases as Anderson v. Bayer Corp., 610
F.3d 390, 393-94 (7th Cir. 2010); Bullard v. Burlington
Northern Santa Fe Ry., 535 F.3d 759, 761 (7th Cir. 2008);
BP America, Inc. v. Oklahoma ex rel. Edmondson, 613 F.3d
1029, 1034-35 (10th Cir. 2010), and College of Dental
Surgeons v. Connecticut General Life Ins. Co., 585 F.3d 33, 38-
39 (1st Cir. 2009).
Boeing’s removal of these cases was premature. The
proposal cannot be made by a defendant, 28 U.S.C.
§ 1332(d)(11)(B)(ii)(II), so Boeing’s desire for a joint trial

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4 Nos. 10-8035, 10-8036, 10-8039, 10-8040, et al.
(a desire based we assume on its preference for
defending these suits in federal rather than state court)
cannot support removal. See Anderson v. Bayer Corp., supra.
We can assume (answering a question left open in the
Anderson case, see 610 F.3d at 394 n. 2, and in Tanoe v.
Dow Chemical Co., 561 F.3d 945, 956 (9th Cir. 2009)) that
the state court’s deciding on its own initiative to
conduct a joint trial would not enable removal either.
That would not be a proposal; and anyway the aim of
the removal provision is to prevent plaintiffs from
trying to circumvent the Class Action Fairness Act by
bringing a class action as a mass action.
The proposal must be to the court in which the suits
are pending, but if the plaintiffs’ statement to the state
court that we quoted was a proposal it was a proposal
made to that court, for it was of course in the state
court that Boeing moved for dismissal on the ground of
forum non conveniens and thus provoked the plaintiffs’
response in which the quoted statement appears. And
the proposal can be implicit, as where a single com-
plaint joins more than 100 plaintiffs’ claims without
proposing a joint trial, Bullard v. Burlington Northern
Santa Fe Ry., supra, 535 F.3d at 762; for the assumption
would be that a single trial was intended—one com-
plaint, one trial, is the norm. But we think the plaintiff’s
statement falls just short of a proposal, as it is rather a
prediction of what might happen if the judge decided
to hold a mass trial. It would be odd to think that plain-
tiffs could not make a telling response to a motion
for dismissal of a suit on the ground of forum non
conveniens without thereby having forfeited their chosen

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Nos. 10-8035, 10-8036, 10-8039, 10-8040, et al. 5
forum; by arguing against dismissal, they would be
arguing for it.
But we do not agree with the plaintiffs, and with two
of the district judges who granted motions to remand,
that removal is permissible only if a proposed joint trial
encompasses relief. (This may become an issue in the
present cases if and when the plaintiffs do propose
a joint trial in the state court; maybe before ruling on
Boeing’s motion to dismiss on the ground of forum non
conveniens the state judge will ask the plaintiffs
whether they are proposing a joint trial.) Suits sought to
be treated as a mass action must seek monetary relief,
but section 1332(d)(11)(B)(i) requires only that the plain-
tiffs’ claims involve common issues of law or fact;
the issues need not be identical across all claims—that
qualification is implicit in “common issues of law or
fact.” The plaintiffs point out that an Illinois court is not
authorized to conduct a “bifurcated” trial—a trial on
liability followed by a separate trial on damages if the
defendant is found to be liable—if any party objects.
Richter v. Northwestern Memorial Hospital, 532 N.E.2d
269, 274 (Ill. App. 1988); Mason v. Dunn, 285 N.Ed.2d
191, 193 (Ill. App. 1972). But that’s not an insuperable
obstacle to a mass action. The joint trial could be limited
to one plaintiff (or a few plaintiffs) and the court could
assess and award him (or them) damages. Once the de-
fendant’s liability was determined in that trial, separate
trials on damages brought by the other plaintiffs against
the defendants would be permissible under Illinois law;
it is not unusual for liability to be stipulated or conceded,
or otherwise determined with binding effect, and the

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6 Nos. 10-8035, 10-8036, 10-8039, 10-8040, et al.
trial limited to damages. See e.g., Bowman v. American
River Transportation Co., 838 N.E.2d 949, 951 (Ill. 2005);
Lawler v. MacDuff, 779 N.E.2d 311, 314-15 (Ill. App. 2002);
Richter v. Northwestern Memorial Hospital, supra, 532
N.E.2d at 274-75. That form of bifurcation is common in
class actions, and a mass action is a form of class action.
But as we said, since the removals were premature,
the orders remanding them are
AFFIRMED.
1-4-11

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