Justine Briggs v. Merck Sharp & Dohme

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUSTINE BRIGGS; CATHERINE
CITRANO; JOHN BUCKLEY;
SELESTINO LOVATO; JAMES OWENS;
EDWIN PRETTER; DELORES
HEDRICK; JOE LADNER; CHARLOTTE
PEAK; BRUCE RININGER; ROBERT
RUBUS; JENNIFER HANNAN; DORIS
PARSHALL; CAROL GOODWIN;
SILVANA ROSSI; SHAMBRE
SKIDMORE; RUTH STUDER; WILSON
THOMAS; RALPH WILOUGHBY;
JAMES HOLZBAUR; JOHN
CONSENTINO,
Plaintiffs-Appellants,
v.
MERCK SHARP & DOHME,
Defendant-Appellee.
No. 15-55873
D.C. No.
3:14-cv-01677-
AJB-MDD

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BRIGGS V. MERCK SHARP & DOHME 2
NICOLETTE KREIS; MARIA
FEDORCZYK; CAMILLE NETO; LINDA
MAURO; NANCY BOYD; DAWN
HADRY; ALEXIS JACKSON; GARY
JONES; DEBRA RIFE; WILLIAM
WEBER; ROBERT MORGAN; EARL
BARTLETT; ROGER HALL; STEVEN
HATFIELD; ROBERT IKEMEIER;
MARY JANE HENDRICKS; DINA
KARAMBASIS; LAUREL ROYAL;
ROBERT DOKMANOVICH; ROSE ANN
FIORITA; MAE BROOKS; PEGGY
YOUNG; CAROLYN MCDANIEL;
LEROY SMITH; WILLIAM BELL;
SANDE YOUNG; HERBERT HOWARD;
WILLIAM LAPLANTE; PATRICIA
HENE; PEGGY RICHARDSON; MARY
BROWN; ELLEN ALLEN; PATRICIA
ALLEN; SHIRLEY PHELPS; RICHARD
MAURO; LISA VEIT,
Plaintiffs-Appellants,
v.
MERCK SHARP & DOHME CORP.,
Defendant-Appellee.
No. 15-55874
D.C. No.
3:14-cv-02072-
AJB-MDD

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BRIGGS V. MERCK SHARP & DOHME 3
TRACEY L. KELLY; TIMOTHY B.
KELLY; CHAD KELLY; JOYCE E.
BOOTH; WILLIAM BOOTH; CLETUS E.
BREEDEN; TIM CAGLE; JERI
BRAMBLE; MELANIE BROWN; PAM
GEILHNER; KIM CARPENTER;
BARBARA COLLINS; ASWELL W.
COOK; DEBORAH WARNE; ELENDER
MCINTIRE; RONALD F. COOK; KELLY
JONES; ANDREW COOK; DORIS E.
CORKERN; JESSE L. FITCH; GLENDA
R. FITCH; VALORIE HARRELL;
KIMBERLY WASSANA; JANICE
INZALACO; WANDA LUCAS; GARY L.
MONTGOMERY; KATHY M.
MONTGOMERY; DEBRA PATRICK-
GOLABEK; WALTER GOLABEK; JODY
PRATER-VINCENT; LEE PRATER;
BILLY JOSEPH PRATER; BETTYE J.
ROBERTSON; HAROLD RODGERS, JR.;
ALMA HEWITT; CORNELL STEWART;
FLORETHA STEWART; EDWIN J.
STRYSKO; RUBY STRYSKO;
MARIANNE MABRY; DONNA LYNN
DUDA; BRENDA THOMASON; JACKIE
HAMMOND; CYNTHIA TOMLIN; REID
F. WAFFLE; ROSE M. WAFFLE;
JULIUS WHITTINGTON; MARY
WHITTINGTON; JANET M. WOOD,
Plaintiffs-Appellants,
v.
No. 15-55875
D.C. No.
3:14-cv-02066-
AJB-MDD

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BRIGGS V. MERCK SHARP & DOHME 4
MERCK SHARP & DOHME, CORP.,
Defendant-Appellee.
LOUIS JOHNSON; RUTH SUYAMA-
KIM; AILEEN SEGERSTROM; ALFRED
HUSK; EDITH MAGNABIGON; NANCY
MORGAN; JANE SUGRUE; DONNA
LAURICELLA; JUDILYN KNIGHT;
HARRY SCHWEINSBERG; JOANN
CORTESE; BRENDA COOPER; DEAN
JOHNSON; MARY FISHE; REXFORD
WHEELER; JOSEPHINE BASTONE;
MARIE ANSELME; SHERMAN
ROBINSON; SYLVESTER ALLISON;
TODD LEONARD; LORRAINE
SQUILLANTE; LOIS YOUNG; TRACY
JOHNSON; ROSS MACPHERSON;
JULIE WILLIAMS; NOOR SHAIKH;
MARISA SIFONTES; JOSEPH SABIA;
PATRICIA TURNER; DEBORAH
WELLS; ALBERT GUTIERREZ;
AUDREY MOORE,
Plaintiffs-Appellants,
v.
MERCK SHARP & DOHME, CORP.,
Defendant-Appellee.
No. 15-55876
D.C. No.
3:14-cv-02070-
AJB-MDD

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BRIGGS V. MERCK SHARP & DOHME 5
RODOLFO L. MARTINEZ; ANTONIO
MARTINEZ; ABRAM S. MILLER, JR.;
DANNY LENZI; DANIEL ALLOWAY;
JODI ALLOWAY; BRUCE BRADSHAW;
FRANK S. BRADSHAW; BRIAN J.
BRADSHAW; CAROL L. BROWN;
SOPHIE L. CODY; ANGELA CASTOR;
TABORI DEBRAUX; LEOPOLDO C.
BAUSAS; FE B. ENCINA; ROSEWELL
B. ENCINA; ANITA FINEMAN; BETTY
J. HOBBS; NORMA KORDICK; DAWN
KORDICK; TIMOTHY KORDICK;
ELIZABETH B. LAWRENECE;
WILLIAM D. LAWRENECE; KATHRYN
L. COWAN; CAROL M. LAWRENECE;
PATRICIA MAHONEY; MAURINE P.
BINGHAM; MICHAEL D. MAHONEY;
RICHARD W. MAHONEY; KATHLEEN
NEWBOLD; KEVIN J. MAHONEY;
MARGARET A. HALE; ELIZABETH K.
OLSON; DEBORAH C. MAHONEY;
JAMES R.T. MARTIN; ANTHONY
MINERO; CAMIELLE MINERO; DAVID
R. MOTON, SR.; CAROL RUP;
CHRISTOPHER RUP; MARK RUP;
TRACY EMMERT; LOUIS SALCIDO;
MILISSA A. FAY; SYLVIA L. SMITH;
MARK A. SALCIDO; DEIDRE L.
SALCIDO; SIDNEY L. SALCIDO;
STEPHEN A. SALCIDO; LOUIS M.
SALCIDO; BRIDGETTE L. SMITH;
PATRICIA L. SANDERS; LISA K.
CARLSON; LAURIE A. BOOTH;
No. 15-55877
D.C. No.
3:14-cv-02071-
AJB-MDD
OPINION

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BRIGGS V. MERCK SHARP & DOHME 6
DANIEL STARK; MARY J. WARD;
FELICIA WASHINGTON; MARVOLENE
OLIVER; ANNIE WADE; CHARLENE
WASILEWSKI; NATALIE GEIGLE;
ALEXIA KRANE; BRENDA COX,
Plaintiffs-Appellants,
v.
MERCK SHARP & DOHME, CORP.;
MERCK SHARP & DOHME, LTD.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted
July 10, 2015—Pasadena, California
Filed August 6, 2015
Before: William A. Fletcher, Richard A. Paez,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge W. Fletcher

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BRIGGS V. MERCK SHARP & DOHME 7
SUMMARY*
Class Action Fairness Act
The panel reversed the district court’s order denying
plaintiffs’ motions to remand to state court cases that were
removed to federal court under the mass action provisions of
the Class Action Fairness Act, and remanded to the district
court with directions to remand the cases to state court.
CAFA authorizes the removal to federal court of “mass
actions,” which are 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).
Plaintiffs, who filed five separate tort cases in a California
state court, alleged that they, or the deceased individuals they
represented, suffered from pancreatic cancer due to their use
of incretin-based therapies for diabetes, including those
developed by Merck Sharp & Dohme Corporation.
The panel held that there was appellate jurisdiction. The
panel held that the time to seek permission to file an appeal
ran from the later of either the date of an initial order granting
or denying remand, or the date of an order granting or
denying reconsideration, provided the motion for
reconsideration was timely filed.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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BRIGGS V. MERCK SHARP & DOHME 8
The panel held that the cases did not constitute a mass
action under CAFA. The panel held that none of the plaintiffs
in the five consolidated cases proposed to try jointly the
claims of one hundred or more persons. The panel further
held that none of the plaintiffs “proposed” a joint trial within
the meaning of § 1332(d)(11)(B)(i), either when they made
representations to the federal court or when they filed suit in
state court.
COUNSEL
Louis M. Bograd (argued), Center for Constitutional
Litigation, P.C., Washington, D.C.; John M. Restaino, Jr.,
Restaino Siler, LLD, Denver, Colorado; Ryan L. Thompson
(argued), Watts Guerra LLP, San Antonio, Texas; John R.
Lytle, Napoli Bern Ripka Shkolnik, LLP, Ladera Ranch,
California; Hunter J. Shkolnik, Napoli Bern Ripka Shkolnik,
LLP, New York, New York, for Plaintiffs-Appellants.
Maurita Elaine Horn, Douglas R. Marvin, and Kristin Ann
Shapiro (argued), Williams & Connolly LLP, Washington,
D.C., for Defendants-Appellees.

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BRIGGS V. MERCK SHARP & DOHME 9
OPINION
W. FLETCHER, Circuit Judge:
The Class Action Fairness Act (“CAFA”), Pub. L. No.
109–2, 119 Stat. 4 (2005), authorizes the removal to federal
court of “mass actions.” 28 U.S.C. § 1332(d)(11)(A), (B).
“Mass actions” are 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.” Id. § 1332(d)(11)(B)(i). The
statute excludes from the “mass action” definition actions in
which “the claims are joined upon motion of a defendant,” id.
§ 1332(d)(11)(B)(ii)(II), or in which “the claims have been
consolidated or coordinated solely for pretrial proceedings,”
id. § 1332(d)(11)(B)(ii)(IV).
Plaintiffs-Appellants (“plaintiffs”) in this consolidated
appeal filed five separate tort cases in a California state court,
each with fewer than one hundred plaintiffs. Plaintiffs
alleged that they, or the deceased individuals they represent,
suffered from pancreatic cancer due to their use of incretin-
based therapies for diabetes, including those developed by
Defendant-Appellee Merck Sharp & Dohme Corporation
(“Merck”), and other defendant drug companies. At the time
plaintiffs filed suit, a coordinated proceeding covering similar
claims was pending in a California state court in a different
county. Merck removed four of the five cases based on
conventional federal diversity jurisdiction, but the district
court granted plaintiffs’ motions to remand. Merck then
removed all five cases based on CAFA, contending that
plaintiffs’ statements to the court during the earlier remand
proceedings converted four of the five cases into a mass
action, and that the filing of the fifth case in the same state

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BRIGGS V. MERCK SHARP & DOHME 10
court as the other four had the same consequence. Plaintiffs
moved to remand the five cases. The district court denied the
motions for remand and subsequent motions for
reconsideration.
This appeal presents two questions. First, were plaintiffs’
petitions for permission to appeal timely? The answer
depends on whether a timely motion for reconsideration of an
order denying or granting a motion for remand under 28
U.S.C. § 1453(c)(1) restarts the ten-day period during which
a party may file a petition for permission to appeal. We hold
that it does.
Second, do these five cases, or any of them, constitute a
mass action under CAFA? When plaintiffs filed the five
cases, a coordinated proceeding involving similar issues and
overlapping defendants was already underway in state court.
Plaintiffs in four of the five cases made statements in the first
federal court remand proceeding indicating that they
anticipated that their cases would be joined to the existing
coordinated state proceeding after remand. Some of the
defendants in the cases now before us were (and are)
defendants in the coordinated state proceeding; indeed,
defendants initiated that proceeding. Plaintiffs in one of the
five cases had petitioned unsuccessfully in state court to join
the coordinated state proceeding. Despite these actions by
plaintiffs, we hold that in none of the five cases did plaintiffs
propose that the claims of one hundred or more persons be
tried jointly.
We therefore reverse and remand with instructions to
grant plaintiffs’ motions to remand to state court.

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BRIGGS V. MERCK SHARP & DOHME 11
I. Background
A. Three Sets of Cases
Five distinct groups of plaintiffs filed suit in Superior
Court for the County of San Diego during the spring and
summer of 2014. The five cases are Kreis, Kelly, Johnson,
Briggs, and Martinez. The complaints alleged various tort
claims against manufacturers and a distributor of incretin-
based drugs, including Byetta, which is manufactured and
promoted by Eli Lilly and Company and Amylin
Pharmaceuticals, and Januvia and Janumet, which were
developed by Merck. Plaintiffs in Kreis, Johnson, and Briggs
have common counsel. Plaintiffs in Kelly and Martinez have
different common counsel. Each of the five cases has fewer
than one hundred plaintiffs.
When plaintiffs filed their five complaints in Superior
Court in San Diego, a second set of cases involving incretin-
based drugs was already pending in the Superior Court for the
County of Los Angeles as a coordinated state proceeding
under California Code of Civil Procedure section 404.
Section 404 provides:
Coordination of civil actions sharing a
common question of fact or law is appropriate
if one judge hearing all of the actions for all
purposes in a selected site or sites will
promote the ends of justice taking into
account whether the common question of fact
or law is predominating and significant to the
litigation; the convenience of parties,
witnesses, and counsel; the relative
development of the actions and the work

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BRIGGS V. MERCK SHARP & DOHME 12
product of counsel; the efficient utilization of
judicial facilities and manpower; the calendar
of the courts; the disadvantages of duplicative
and inconsistent rulings, orders, or judgments;
and, the likelihood of settlement of the actions
without further litigation should coordination
be denied.
Cal. Civ. Proc. Code § 404.1.
Eli Lilly and Amylin Pharmaceuticals initiated the state
court coordinated proceeding in 2009 for the purpose of
litigating claims that the drug Byetta causes pancreatitis.
Judge Highberger of the Los Angeles Superior Court presides
over the coordinated proceeding. We refer to the coordinated
proceeding as the Byetta Judicial Council Coordinated
Proceeding (“Byetta JCCP”).
The Byetta JCCP has been expanded to cover claims
dealing with other incretin-based drugs, other injuries
(including pancreatic cancer), and other drug companies
(including Merck). An August 30, 2010 case management
order, which expressly applies to later-filed add-on cases,
states that the order “does not constitute a determination that
these actions should be consolidated for trial.” In a June 17,
2014 status conference report, the Byetta JCCP plaintiffs
stated that they “have said several times that a small group of
bellwethers provide an extremely useful and practical
backdrop and context for the many issues that will arise as the
[cancer] cases progress, including the generic causation
phase.”
The Kreis plaintiffs conceded in their brief and at oral
argument before us that they petitioned to join the Byetta

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BRIGGS V. MERCK SHARP & DOHME 13
JCCP in May 2014. The Kreis plaintiffs filed their add-on
petition in state court one day after Merck removed the case
to federal court for the first time. The Kreis plaintiffs’ add-on
petition states that “[c]oordinated proceedings will promote
the ends of justice by efficiently utilizing this State’s judicial
resources, avoiding inconsistent rulings and promoting
economy and efficiency for all parties, witnesses and
counsel.” In a declaration attached to the petition, counsel for
the Kreis plaintiffs stated that “[p]etitioners do not seek joint
trials of any cases or plaintiffs, but rather, all claims shall be
tried individually.”
Throughout most of this litigation, Merck has asserted
that the Johnson plaintiffs also petitioned to join the Byetta
JCCP. However, in a letter to this court sent just before oral
argument, and again in oral argument, Merck acknowledged
that the add-on petition in Johnson had also been filed by a
defendant rather than by plaintiffs. (Merck further
acknowledged at oral argument, contrary to its earlier
assertions, that a second add-on petition in Kreis had been
filed by a defendant rather than plaintiffs.) After the state
court received the two add-on petitions filed by the
defendants in Kreis and Johnson, it notified the parties that
because the cases had been removed to federal court it could
not process them. We infer that the state court sent the Kreis
plaintiffs a similar notice in response to their add-on petition,
though we do not have access to the state court record that
would confirm that the state court did so.
When plaintiffs filed their five complaints, a third set of
incretin-related cases was pending as multi-district litigation
(“MDL”) in the United States District Court for the Southern
District of California, sitting in San Diego. District Judge
Battaglia presides over the MDL. See In re Incretin Mimetics

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BRIGGS V. MERCK SHARP & DOHME 14
Prods. Liab. Litig., No. 3:13-md-02452-AJB-MDD (C.D.
Cal.) (“MDL”). When plaintiffs’ five cases were removed to
federal court from San Diego Superior Court, they were
assigned to Judge Battaglia as related cases. Judge Battaglia
in the MDL and Judge Highberger in the Byetta JCCP have
worked closely to coordinate their respective proceedings.
B. Removal Proceedings
On April 30 and May 1, 2014, Merck filed notices of
removal in Kelly, Kreis, and Johnson based on an assertion of
diversity jurisdiction under 28 U.S.C. § 1332. (The Martinez
and Briggs complaints had not yet been filed.) Plaintiffs
moved to remand the three cases to state court based on a lack
of complete diversity. Merck moved to sever the claims of
three non-diverse plaintiffs and to dismiss as fraudulently
joined, or to sever, claims against one of the defendants in an
attempt to create complete diversity.
At the hearing on plaintiffs’ remand motions, held on
August 7, 2014, Judge Battaglia asked, “[I]f remanded, are
these cases going to end up, through the JCCP, with Judge
Highberger, or are they going to end up with some other
judge for management purposes, or do we know?” Counsel
for the Kelly plaintiffs answered on behalf of the plaintiffs in
all three cases, “They will be transferred to Judge Highberger
and be assigned to him for all purposes and be coordinated
with this court as we have been doing with all of the other
cases that are in the JCCP.” Judge Battaglia then asked what
the benefit would be of keeping the cases in state court, “if
ultimately they are going to be coordinated in part following
the same part of the process of the MDL?” Counsel for Kreis
responded that given the large number of incretin-related
cases pending in federal court and plaintiffs’ desire to resolve

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BRIGGS V. MERCK SHARP & DOHME 15
the cases before plaintiffs and their successors-in-interest
died, they preferred to proceed before Judge Highberger
because he has a smaller docket and was likely to process the
cases more quickly. Speaking generally of the many ongoing
incretin-related cases, counsel for Kelly remarked, “Some
plaintiffs would prefer to be in state court, to get their trials
in the JCCP. Others will be in federal court and with
different federal judges around the country.” In opposing the
remand, Merck argued that the Byetta JCCP was the wrong
forum for these cases, since that proceeding primarily
involved different drugs and injuries than those at issue in
Kelly, Kreis, and Johnson.
On August 8, 2014, the district court denied Merck’s
motion to sever and to dismiss the non-diverse parties, and
granted plaintiffs’ motions to remand. The court observed in
its remand order that “given that these cases would join the
current actions pending in California state court as part of the
JCCP action and the fact that this Court has been in
coordination with the Los Angeles state court, the risk of
inconsistent rulings is unpersuasive at this point.” After the
remand to state court, defendant Eli Lilly petitioned
unsuccessfully to add Kreis, Kelly, and Johnson to the Byetta
JCCP.
On July 16, 2014, Merck filed a notice of removal in
Briggs, also based on § 1332. On August 15, 2015, the
Briggs plaintiffs filed a motion to remand based on lack of
complete diversity. In their supporting memorandum, they
cited the district court’s remand in Kelly just a few days
before. They wrote in a footnote, “[R]emand will result in
these cases joining the Judicial Council Coordinated
Proceeding (JCCP), In re Byetta Cases, JCCP No. 4573, in
Los Angeles, where coordination with this Court’s MDL is

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BRIGGS V. MERCK SHARP & DOHME 16
underway.” The language in the footnote replicates the
language in the district court’s August 8 remand order.
On September 2, 2014, while the Briggs plaintiffs’ motion
for remand was still pending in the district court, Merck filed
second notices of removal in Kreis, Kelly, and Johnson, filed
an amended notice of removal in Briggs, and filed a first
notice of removal in Martinez. Merck now asserted CAFA
jurisdiction as the basis for removal. Merck contended that
“Briggs, Johnson, Kelly, Kreis, and Martinez are removable
under the ‘mass action’ provision because plaintiffs’
counsel’s expressed intent that the cases be transferred to the
JCCP constitutes a proposal to try the claims of those
plaintiffs jointly.”
Plaintiffs moved to remand all five cases to state court.
The district judge stayed proceedings pending our rehearing
en banc of Corber v. Xanodyne Pharmaceuticals, Inc.,
771 F.3d 1218 (9th Cir. 2014) (en banc). The question in
Corber was whether plaintiffs’ petition in several cases in
state court to initiate a coordinated proceeding under
California Code of Civil Procedure section 404 “for all
purposes” was a proposal for a joint trial within the meaning
of CAFA. We held that it was. Id. at 1220.
On December 23, 2014, after we decided Corber, the
district judge denied plaintiffs’ motions to remand in all five
cases. Ten days later, on January 2, 2015, plaintiffs moved
for reconsideration. The district judge denied the motions on
January 9, 2015. In his order, he wrote that he had denied
remand in Kelly, Kreis, and Johnson based on those
plaintiffs’ representations in the August 7 hearing; had denied
remand in Briggs based on the those plaintiffs’ footnote in
their August 15 memorandum; and had denied remand in

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BRIGGS V. MERCK SHARP & DOHME 17
Martinez because “by filing the case in San Diego Superior
Court, along with the four other actions, Plaintiffs implicitly
proposed the claims in Martinez be joined with the claims of
plaintiffs in the four other cases.” The district judge had
mentioned in his initial order the add-on petitions he believed
had been filed by the Kreis and Johnson plaintiffs, but he
explained in denying the motion for reconsideration that he
“did not find these petitions dispositive.”
C. Appeal
On January 20, 2015—ten days after the district judge
denied plaintiffs’ motions for reconsideration—plaintiffs filed
petitions for permission to appeal, seeking review of the
orders denying their motions for remand and reconsideration.
Merck contends that we lack jurisdiction because plaintiffs
did not file their petitions within ten days of the district
court’s initial orders denying remand. A motions panel of
this court consolidated the five cases, conditionally granted
the plaintiffs permission to appeal, and directed the parties to
brief whether plaintiffs’ petitions for permission to appeal
were timely filed pursuant to 28 U.S.C. § 1453(c)(1).
II. Appellate Jurisdiction
An appeal in a CAFA case may be sought “from an order
of a district court granting or denying a motion to remand a
class action to the State court from which it was removed if
application is made to the court of appeals not more than 10
days after entry of the order.” 28 U.S.C. § 1453(c)(1); see
28 U.S.C. § 1332(d)(11)(A) (explaining that for purposes of
§ 1332(d) and § 1453, “a mass action shall be deemed a class
action under paragraphs (2) through (10) if it otherwise meets
the provisions of those paragraphs”). Merck contends that the

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BRIGGS V. MERCK SHARP & DOHME 18
word “order” in § 1453(c)(1) refers only to a district court’s
initial remand order. Merck therefore contends that we must
deny permission to appeal on the ground that plaintiffs sought
permission to appeal within ten days of the district judge’s
orders denying reconsideration rather than within ten days of
his order denying the motions to remand. We disagree with
Merck’s reading of the word “order.” We hold that the time
to seek permission to file an appeal runs from the later of
either the date of an initial order granting or denying remand,
or the date of an order granting or denying reconsideration,
provided the motion for reconsideration was timely filed.
It has long been accepted that the time period to file an
appeal generally runs from the denial of a timely motion for
reconsideration, rather than from the date of the initial order.
See United States v. Ibarra, 502 U.S. 1 (1991) (per curiam);
United States v. Dieter, 429 U.S. 6 (1976) (per curiam);
United States v. Healy, 376 U.S. 75 (1964). We see no good
reason to depart from this “well-established rule” and the
“traditional and virtually unquestioned practice” of applying
it. Healy, 376 U.S. at 78, 79.
Merck contends that we should not apply the general rule
of Ibarra, Dieter, and Healy on the ground that § 1453(c)(1)’s
deadline is statutory, jurisdictional, and specific. We have
three responses. First, it does not matter that the deadline is
statutory. The deadline in Dieter was statutory. The
Supreme Court held in that case that the denial of a timely
petition for rehearing marked the start of the period during
which to take an appeal. Dieter, 429 U.S. at 8–9. Second, it
does not matter if the timeliness requirement of § 1453(c)(1)
is jurisdictional (assuming arguendo that it is). Federal Rule
of Appellate Procedure 4(a) is jurisdictional, see United
States v. Sadler, 480 F.3d 932, 936–37 (9th Cir. 2007), and it

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BRIGGS V. MERCK SHARP & DOHME 19
has long been held that reconsideration orders mark the start
of the time to appeal under that rule. See Browder v. Dir.,
Dep’t of Corr. of Ill., 434 U.S. 257, 267 (1978). Further,
even if the timeliness requirement is jurisdictional (which we
do not decide), and even if we therefore lack the authority to
find an equitable exception to the requirement, Merck
misapprehends the question before us. We are determining
what that rule means; we are not addressing any exceptions
to the rule. Third, § 1453(c)(1) may be specific in some
respects, but both § 1453(c)(1) and Federal Rule of Appellate
Procedure 5, which governs appeals under § 1453(c)(1), see
Amalgamated Transit Union Local 1309 v. Laidlaw Transit
Servs., Inc., 435 F.3d 1140, 1145 (9th Cir. 2006), do not
specify the effect of a timely motion for reconsideration. As
to that issue, they are silent. It would be odd to interpret
Congress’s silence as signifying an intent to deviate from a
well-established default rule.
Merck further contends that our holding would defeat the
purpose of § 1453(c)(1) and other provisions of CAFA that
provide for quick review of remand orders. We disagree.
Courts of appeals are better able to resolve appeals quickly
(and correctly) when district courts have clarified the bases
for their decisions or corrected any mistakes they may have
made in their initial orders. See Dieter, 429 U.S. at 8 (“The
fact that appeals are now routed to the courts of appeals does
not affect the wisdom of giving district courts the opportunity
promptly to correct their own alleged errors, and we must
likewise be wary of imposing added and unnecessary burdens
on the courts of appeals.”). This appeal is proof of that
proposition. The district court’s order denying
reconsideration specified why, in its view, each of the five
cases fell under CAFA’s mass action provision. Even though
we disagree with the district judge’s conclusion, we recognize

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BRIGGS V. MERCK SHARP & DOHME 20
and are grateful for the assistance his careful reconsideration
order has provided.
Finally, we note that our holding is consistent with the
rule applied in other circuits. See, e.g., Natale v. Gen. Motors
Corp., No. 06-8011, 2006 WL 1458585, at *1 (7th Cir. May
8, 2006) (holding that appellate jurisdiction lies under
§ 1453(c)(1) when a party timely seeks review of an order
denying reconsideration of a remand order); see also McNair
v. Synapse Grp. Inc., 672 F.3d 213, 222 n.8 (3d Cir. 2012)
(holding that the ten-day period for filing a petition seeking
to appeal “an order granting or denying class-action
certification” under Rule 23(f) does not start to run until the
district judge rules on a timely motion for reconsideration);
Gelder v. Coxcom Inc., 696 F.3d 966, 969 (10th Cir. 2012)
(same); Shin v. Cobb Cnty. Bd. of Educ., 248 F.3d 1061,
1064–65 (11th Cir. 2001) (same); Blair v. Equifax Check
Servs., Inc., 181 F.3d 832, 837 (7th Cir. 1999) (same).
III. Standard of Review
We review de novo the district court’s order denying
remand to state court. Corber, 771 F.3d at 1222. Whether
plaintiffs proposed a joint trial is a question that concerns the
“‘construction, interpretation, or applicability of CAFA,’”
which we review de novo. Visendi v. Bank of Am., N.A.,
733 F.3d 863, 867 (9th Cir. 2013) (quoting Nevada v. Bank of
Am. Corp., 672 F.3d 661, 667 (9th Cir. 2012)).
IV. CAFA Removal Jurisdiction
CAFA extends removal jurisdiction 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),

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BRIGGS V. MERCK SHARP & DOHME 21
except, as potentially relevant here, when “the claims
are joined upon motion of a defendant,” id.
§ 1332(d)(11)(B)(ii)(II), or when “the claims have been
consolidated or coordinated solely for pretrial proceedings,”
id. 1332(d)(11)(B)(ii)(IV). We must decide whether
plaintiffs in any of these five consolidated cases ever
proposed to try jointly the claims of one hundred or more
persons. See Corber, 771 F.3d at 1223 (noting that the
“proposal to try claims jointly must come from the plaintiffs,
not from the defendants”). Our answer turns, first, on what
it means to make a proposal, and second, on what it means to
propose a joint trial.
A. Proposal
At the outset, we observe that because
§ 1332(d)(11)(B)(i) speaks in the passive voice, it is not clear
on the face of that subsection, considered alone, who must
make a proposal that would trigger CAFA’s mass action
removal provision. However, when § 1332(d)(11)(B)(i) is
read in conjunction with the exception contained in
§ 1332(d)(11)(B)(ii)(II), it is clear that a “proposal” within
the meaning of § 1332(d)(11)(B)(i) cannot come from a
defendant. It is possible that a proposal by a state court for a
joint trial would qualify as a “proposal” under
§ 1332(d)(11)(B)(i). But we need not reach that question, for
at no point did the state court move sua sponte to add any of
these five cases to the Byetta JCCP. In the cases now before
us, the issue is whether plaintiffs made a “proposal” for joint
trial sufficient to trigger CAFA’s removal jurisdiction.
The district judge identified two actions by plaintiffs that,
in his view, constituted implicit proposals for a joint trial.
First, in his view, plaintiffs in four of the five cases—Kelly,

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BRIGGS V. MERCK SHARP & DOHME 22
Kreis, Johnson, and Briggs—had represented to him in the
first round of remand proceedings that they intended for their
cases to be joined for trial in the Byetta JCCP. Second,
plaintiffs in Martinez (along with plaintiffs in the other four
cases) filed suit in San Diego Superior Court after defendants
initiated the Byetta JCCP in the Los Angeles Superior Court,
a court in a neighboring judicial district. We agree with the
district judge that implicit proposals may trigger CAFA’s
removal jurisdiction. See Corber, 771 F.3d at 1225. But we
hold that neither of these actions was an implicit proposal.
A proposal for purposes of CAFA’s mass action
jurisdiction, even an implicit proposal, is a “voluntary and
affirmative act,” id. at 1224, and an “intentional act,” Parson
v. Johnson & Johnson, 749 F.3d 879, 888 (10th Cir. 2014).
It is “not a mere suggestion,” Scimone v. Carnival Corp.,
720 F.3d 876, 883 (11th Cir. 2013), and it is not a mere
prediction.
Further, and more important, we agree with the
Seventh Circuit that, to qualify as a proposal under
§ 1332(d)(11)(B)(i), a request for a joint trial “must be made
to a court that can effect the proposed relief.” In re Abbott
Labs., Inc., 698 F.3d 568, 573 (7th Cir. 2012); see Koral v.
Boeing Co., 628 F.3d 945, 947 (7th Cir. 2011) (stating that
the “proposal must be to the court in which the suits are
pending”); see also Corber, 771 F.3d at 1222 (“The statutory
issue for us is whether the petitions filed in this case, seeking
coordination of the California propoxyphene actions, were in
legal effect proposals for those actions to be tried jointly.”
(emphasis added)). This interpretation is consistent with the
ordinary meaning of the word “propose.” See Webster’s
Third New International Dictionary 1819 (2002) (“[T]o
propose” means “to offer for consideration, discussion,

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BRIGGS V. MERCK SHARP & DOHME 23
acceptance, or adoption.”); see Scimone, 720 F.3d at 881
(relying on the Webster’s definition). A plaintiff’s proposal
need not take the form of a formal motion for a joint trial. Cf.
Tanoh v. Dow Chem. Co., 561 F.3d 945, 954 (9th Cir. 2009)
(noting that a defendant’s request to consolidate plaintiffs’
actions falls under § 1332(d)(11)(B)(ii)(II)’s exception even
if it is not a formal motion). But if a court lacks the authority
to grant a request for a joint trial, then plaintiffs cannot
“propose” a joint trial by making a request to that court.
From our understanding of the meaning of “proposal,” it
follows that nothing the Kreis, Kelly, Johnson, and Briggs
plaintiffs represented to the federal district court about what
would or might happen to their cases, if they were remanded
to state court, qualified as a proposal for a joint trial. (The
Martinez plaintiffs did not make any such representation.) At
most, the remark made by counsel for Kreis at the hearing to
remand the Kreis, Kelly, and Johnson cases was a request to
remand those three cases to state court, with the prospect of
consolidation with the Byetta JCCP as one reason supporting
remand. The statement in a footnote in the Briggs
memorandum in support of remand was not even that, for
instead of providing a reason for remand, the footnote merely
predicted what would happen in the event of a remand. But
even if the statement by counsel on behalf of the Kreis, Kelly,
and Johnson plaintiffs and the footnote in the Briggs
memorandum could be characterized as providing reasons for
remand and expressing an intent to seek to join the Byetta
JCCP, these statements could not have been “proposals,”
given that the district court lacked any authority to join
plaintiffs’ cases to the Byetta JCCP. Only California’s
Judicial Council and Judge Highberger had the authority to
do so. See Corber, 771 F.3d at 1221 n.2 (citing Cal. Civ.

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BRIGGS V. MERCK SHARP & DOHME 24
Proc. Code §§ 404.1–.9 and Abelson v. Nat’l Union Fire Ins.
Co. of Pittsburgh, 35 Cal. Rptr. 2d 13, 18 (Ct. App. 1994)).
It also follows from our understanding of “proposal” that
plaintiffs in none of the five cases (including Martinez)
proposed a joint trial merely by filing their cases in the
California state court system, when a consolidated proceeding
covering similar claims, initiated by defendants, was
underway in a California court. It would strain common
sense and stretch the language of § 1332(d)(11)(B)(i) to
conclude that plaintiffs were implicitly proposing to join their
cases to the Byetta JCCP when they did no more than to file
their cases in San Diego Superior Court while the defendant-
initiated Byetta JCCP was pending in Los Angeles Superior
Court. At most, we can say that plaintiffs filed their
complaints with the knowledge that there was a strong
likelihood that their cases would be joined in the Byetta
JCCP. This likelihood alone cannot to trigger CAFA’s mass
action jurisdiction, for some entity—either one of the parties
or the state court—would have to take some action to
effectuate the joinder. See Anderson v. Bayer Corp.,
610 F.3d 390, 394 (7th Cir. 2010) (noting that a proposal for
some form of joint trial “seems possible (perhaps even likely)
at some future point in these cases, given the similarity of
their claims. But it is not yet a certainty, and Congress has
forbidden us from finding jurisdiction based on [the
defendant’s] suggestion that the claims be tried together”);
see also Corber, 771 F.3d at 1224 n.5 (“[W]e must determine
whether Plaintiffs proposed a joint trial, not whether one will
occur at some future date.”). The statute tells us that it
matters who or what that entity is. It makes clear that if it
were a defendant who petitioned to add the cases to the
Byetta JCCP, the cases would not constitute a mass action.
28 U.S.C. § 1332(d)(11)(B)(ii)(II) (“[T]he term ‘mass action’

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BRIGGS V. MERCK SHARP & DOHME 25
shall not include any civil action in which . . . the claims are
joined upon motion of a defendant.”).
If we were to agree with the district court that plaintiffs
proposed a joint trial merely by filing their actions in state
court, we would transform plaintiffs from masters of their
complaints into servants of defendants’ litigation strategy. In
effect, we would permit defendants to lock later-filing
plaintiffs out of state court systems by preemptively initiating
coordinated judicial proceedings in earlier-filed state court
suits. Neither the text nor the purpose of CAFA contemplates
such a result. “[T]here is no indication that Congress’s
purpose in enacting CAFA was to strip plaintiffs of their
ordinary role as masters of their complaint and allow
defendants to treat separately filed actions as one action
regardless of plaintiffs’ choice.” Scimone, 720 F.3d at 885;
see Tanoh, 561 F.3d at 953 (“In this case, concluding that
plaintiffs’ claims fall outside CAFA’s removal provisions is
not absurd, but rather is consistent with . . . the well-
established rule that plaintiffs, as masters of their complaint,
may choose their forum by selecting state over federal court
. . . .”).
The actions of plaintiffs in these cases—filing separate
suits in San Diego Superior Court when a similar, but not
identical, set of cases was pending in a JCCP in Los Angeles
Superior Court—are a far cry from what other circuits have
held sufficient to trigger removal as a mass action under
CAFA. See, e.g., Atwell v. Bos. Sci. Corp., 740 F.3d 1160,
1161, 1163 (8th Cir. 2013) (explaining that CAFA
jurisdiction lies where plaintiffs requested that their cases,
which together included more than one hundred plaintiffs, be
assigned “to a single Judge for purposes of discovery and
trial”); Visendi, 733 F.3d at 868 (holding that CAFA

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BRIGGS V. MERCK SHARP & DOHME 26
jurisdiction lies where plaintiffs “filed a single state-court
complaint that named well over 100 plaintiffs”); Bullard v.
Burlington N. Santa Fe Ry. Co., 535 F.3d 759, 761–62 (7th
Cir. 2008) (recognizing that CAFA jurisdiction lies where
plaintiffs filed a complaint on behalf of 144 plaintiffs); see
also Scimone, 720 F.3d at 884 (“Every other court of appeals
confronted with this question has come to the same
conclusion: that plaintiffs have the ability to avoid
§ 1332(d)(11)(B)(i) jurisdiction by filing separate complaints
naming less than 100 plaintiffs and by not moving for or
otherwise proposing joint trial in the state court.”).
We therefore conclude that none of the plaintiffs
“proposed” a joint proceeding within the meaning of
§ 1332(d)(11)(B)(I), either when they made representations
to the federal court or when they filed suit in state court.
B. Joint Trial
Because we do not agree with the district court’s
conclusion that plaintiffs’ representations in federal court and
their decision to file their cases in California state court
constituted implicit proposals to try jointly the claims of one
hundred or more persons, we reach a question the district
court had no need to answer: Did the plaintiffs in Kreis
trigger CAFA’s mass action jurisdiction by filing a petition
in state court to join the Byetta JCCP?
While Corber held that an initial petition for a JCCP can
constitute a proposal, it is not clear whether an add-on
petition can constitute a proposal as well—particularly where,
as here, the claims in the add-on petition would not meet
CAFA’s hundred-person threshold unless added to claims
that had previously been joined “upon motion of a

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BRIGGS V. MERCK SHARP & DOHME 27
defendant.” 28 U.S.C. § 1332(d)(11)(B)(ii)(II). We need not
reach that issue, however, for even if the Kreis plaintiffs’ add-
on petition could be construed as a proposal, it was not a
proposal for a joint trial. See Corber, 771 F.3d at 1224
(observing that not all JCCP petitions are “per se proposals to
try cases jointly”). Their add-on petition comes within the
scope of the exception in § 1332(d)(11)(B)(ii)(IV), which
excepts from the “mass action” definition “claims that have
been consolidated or coordinated solely for pretrial
purposes.”
We wrote in Corber, “We can envision a [JCCP] petition
that expressly seeks to limit its request for coordination to
pre-trial matters, and thereby align with the mass action
provision’s exception [under] § 1332(d)(11)(B)(ii)(IV).” Id.
We went on to observe that “if Plaintiffs had qualified their
coordination request by saying that it was intended to be
solely for pre-trial purposes, then it would be difficult to
suggest that Plaintiffs had proposed a joint trial.” Id. The
Kreis plaintiffs qualified their petition in just this manner. In
a declaration attached to the Kreis add-on petition, plaintiffs’
counsel stated that plaintiffs “do not seek joint trials of any
cases or plaintiffs, but rather, all claims shall be tried
individually.” Unlike the Corber plaintiffs, the Kreis
plaintiffs did not explain that they sought to join the JCCP in
order to avoid “inconsistent judgments.” Id. at 1223–24.
Rather, they stated that they wanted to avoid “inconsistent
rulings.” “Rulings” is a broader term than “judgments,”
including various dispositions of pre-trial motions.
Our conclusion that the Kreis plaintiffs did not seek a
joint trial is confirmed by the nature of the proceeding they
sought to join. The August 2010 case management order in
the Byetta JCCP, which explicitly applies to later filed add-on

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BRIGGS V. MERCK SHARP & DOHME 28
cases, states that the order “does not constitute a
determination that these actions should be consolidated for
trial.” We recognize that the Byetta plaintiffs submitted a
status conference report in June 2014—after the plaintiffs in
four of the five cases, including Kreis, had filed suit—in
which the Byetta plaintiffs represented that they “have said
several times that a small group of bellwethers provide an
extremely useful and practical backdrop and context for the
many issues that will arise as the [pancreatic cancer] cases
progress, including the generic causation phase.” A
bellwether trial is a test case that is typically used to facilitate
settlement in similar cases by demonstrating the likely value
of a claim or by aiding in predicting the outcome of tricky
questions of causation or liability. See Alexandra D. Lahav,
Bellwether Trials, 76 Geo. Wash. L. Rev. 576, 577–78
(2008). Ordinary principles of collateral estoppel may apply
in subsequent cases, but we agree with Judge Battaglia that a
bellwether trial is not, without more, a joint trial within the
meaning of CAFA. Compare Atwell, 740 F.3d at 1163–66
(affirming the denial of motions to remand where three sets
of plaintiffs filed motions proposing that the state court assign
all three cases “to a single Judge for purposes of discovery
and trial,” and where plaintiffs’ counsel discussed bellwether
case selection at a hearing in state court); Abbott Labs.,
698 F.3d at 571, 573 (reversing an order granting a motion to
remand where plaintiffs moved for consolidation “through
trial” and “not solely for pretrial proceedings,” in part to
“prevent inconsistent . . . trial rulings”); Bullard, 535 F.3d at
762 (stating that “[a] trial of 10 exemplary plaintiffs, followed
by application of issue or claim preclusion to 134 more
plaintiffs without another trial, is one in which the claims of
100 or more persons are being tried jointly,” in the course of
holding that a single complaint identifying 144 plaintiffs
constitutes a proposal for a joint trial (emphasis added)).

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BRIGGS V. MERCK SHARP & DOHME 29
Thus, even if we were to impute the Byetta plaintiffs’
expressed wish for bellwether trials to the Kreis plaintiffs,
that would not transform the Kreis plaintiffs’ add-on petition
into a proposal for a joint trial.
Conclusion
Because plaintiffs in none of these five cases proposed to
try jointly the claims of one hundred or more persons, we
reverse and remand to the district court with directions to
remand the five cases to state court.
REVERSED and REMANDED.

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