Jerry Dunson v. Cordis Corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY DUNSON; CHERYL
GRECH; ROBERT FLANAGAN;
CAROL FLANAGAN; JOSEPH
GIEBER; MARY ELDEB; DAYNA
CURRIE; HARLOWE CURRIE;
CHARLES HENRY LEWIS,
Plaintiffs-Appellees,
v.
CORDIS CORPORATION,
Defendant-Appellant.
No. 17-15257
D.C. No.
3:16-cv-03076-EMC
OPINION
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted March 13, 2017
San Francisco, California
Filed April 14, 2017
Before: Ferdinand F. Fernandez and Paul J. Watford,
Circuit Judges, and Josephine L. Staton,* District Judge.
Opinion by Judge Watford
* The Honorable Josephine L. Staton, United States District Judge for
the Central District of California, sitting by designation.

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DUNSON V. CORDIS CORP. 2
SUMMARY**
Class Action Fairness Act
The panel affirmed the district court’s order remanding
the action to state court due to lack of federal removal
jurisdiction, on the ground that the action could not be
removed to federal court under the Class Action Fairness
Act’s (“CAFA”) mass action provision.
A CAFA “mass action” is a civil action, other than a class
action, “in which monetary relief claims of more than 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).
The panel held that the district court correctly held that
removal jurisdiction did not exist in this case under CAFA’s
mass action provision because the plaintiffs’ consolidation
motion did not propose a joint trial of their claims.
Specifically, the panel held that the plaintiffs requested
consolidation for purposes of pretrial proceedings, which
standing alone did not trigger removal jurisdiction under
CAFA’s mass action provision. The panel further held that
the plaintiffs also requested consolidation for purposes of
establishing a bellwether-trial process, but nothing they said
indicated that they were referring to a bellwether trial whose
results would have preclusive effect on the plaintiffs in the
other cases, and did not amount to a proposal to try their
claims jointly.
** 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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DUNSON V. CORDIS CORP. 3
COUNSEL
Andrew D. Kaplan (argued) and Rebecca Baden Chaney,
Crowell & Moring LLP, Washington, D.C.; Kevin C. Mayer,
Crowell & Moring LLP, San Francisco, California; for
Defendant-Appellant.
Troy A. Brenes (argued), Brenes Law Group P.C., Aliso
Viejo, California, for Plaintiffs-Appellees.
Richard A. Samp and Mark S. Chenoweth, Washington, D.C.,
as and for Amicus Curiae Washington Legal Foundation.
Alan J. Lazarus, Drinker Biddle & Reath LLP, San Francisco,
California; Hugh F. Young, Jr., Product Liability Advisory
Council, Reston, Virginia; for Amicus Curiae Product
Liability Advisory Council, Inc.
OPINION
WATFORD, Circuit Judge:
Under the Class Action Fairness Act of 2005 (CAFA),
Pub. L. No. 109-2, 119 Stat. 4, large multi-state class actions
may be removed to federal court under requirements more
permissive than those governing the removal of other civil
actions. To prevent plaintiffs from evading CAFA’s relaxed
jurisdictional requirements, Congress made “mass actions”
removable to federal court on largely the same basis as class
actions. Mississippi ex rel. Hood v. AU Optronics Corp.,
134 S. Ct. 736, 744 (2014). A “mass action” is defined as a
civil action, other than a class action, “in which monetary
relief claims of 100 or more persons are proposed to be tried

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DUNSON V. CORDIS CORP. 4
jointly on the ground that the plaintiffs’ claims involve
common questions of law or fact.” 28 U.S.C.
§ 1332(d)(11)(B)(i).
In this case, Cordis Corporation invoked CAFA’s mass
action provision as the basis for removing to federal court
eight products liability suits filed against it in the Superior
Court for Alameda County, California. (The district court’s
order also remanded a number of other related cases, but
those cases are not specifically before us.) Each of the eight
actions has fewer than 100 plaintiffs, but together they
involve more than 100 named plaintiffs. The actions raise
common questions of law and fact because they all seek
damages for injuries caused by the same allegedly defective
medical devices manufactured by Cordis. The parties agree
that the jurisdictional requirements for removal under
CAFA’s mass action provision are met, with one exception:
They dispute whether the plaintiffs’ claims have been
“proposed to be tried jointly.”
Cordis argues that the plaintiffs proposed to try their
claims jointly when they moved in state court to consolidate
the eight actions. In their motion, the plaintiffs requested
consolidation of the actions “for all pretrial purposes,
including discovery and other proceedings, and the institution
of a bellwether-trial process.” The motion noted that,
because the actions involve the same allegedly defective
medical devices, both the discovery sought from Cordis and
the majority of the expert discovery will be identical in each
case. As a result, the plaintiffs stated, consolidation of the
actions “for purposes of pretrial discovery and proceedings,
along with the formation of a bellwether-trial process, will
avoid unnecessary duplication of evidence and procedures in
all of the actions, avoid the risk of inconsistent adjudications,

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DUNSON V. CORDIS CORP. 5
and avoid many of the same witnesses testifying on common
issues in all actions, as well as promote judicial economy and
convenience.”
The district court held that the plaintiffs’ consolidation
motion did not propose a joint trial of their claims, as
required under § 1332(d)(11)(B)(i). The cases therefore
could not be removed under CAFA’s mass action provision.
Because Cordis asserted no other basis for federal
jurisdiction, the district court granted the plaintiffs’ motion to
remand the cases to the Alameda County Superior Court. We
granted Cordis’ petition for permission to appeal that ruling
under 28 U.S.C. § 1453(c).
We can begin with two propositions that neither side
disputes. First, the fact that more than 100 plaintiffs have
sued Cordis in eight separate actions filed in the same court
is not by itself sufficient to trigger removal jurisdiction under
CAFA. Plaintiffs’ lawyers are free to file multiple lawsuits
with fewer than 100 plaintiffs based on the same factual
allegations, even if their purpose in doing so is to avoid
federal jurisdiction. Corber v. Xanodyne Pharmaceuticals,
Inc., 771 F.3d 1218, 1223 (9th Cir. 2014) (en banc). Before
separate actions may be removed to federal court as a “mass
action,” 100 or more plaintiffs must take the affirmative step
of proposing to try their claims jointly, such as by requesting
assignment to a single judge “for purposes of discovery and
trial,” Atwell v. Boston Scientific Corp., 740 F.3d 1160, 1163
(8th Cir. 2013), or by requesting consolidation “through trial”
and “not solely for pretrial proceedings,” In re Abbott
Laboratories, Inc., 698 F.3d 568, 573 (7th Cir. 2012).
Second, if 100 or more plaintiffs in separate actions propose
consolidating their cases solely for pretrial purposes, that too
is insufficient to trigger removal jurisdiction. CAFA’s

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DUNSON V. CORDIS CORP. 6
definition of “mass action” expressly excludes any civil
action in which the plaintiffs’ claims “have been consolidated
or coordinated solely for pretrial proceedings.”
§ 1332(d)(11)(B)(ii)(IV).
This appeal would be easy to resolve if the plaintiffs had
stated that they sought consolidation “for all pretrial
purposes, including discovery and other proceedings,” and
stopped there. Proposing consolidation for those purposes
alone would bring this case squarely within the exclusion just
quoted, particularly if the plaintiffs had also expressly
disclaimed any desire for a joint trial. But the plaintiffs
complicated things by proposing consolidation for the
additional purpose of creating “a bellwether-trial process.”
The question before us is whether the plaintiffs’ proposal for
a bellwether-trial process amounts to a proposal to try their
claims jointly.
The answer to that question depends on which kind of
“bellwether-trial process” the plaintiffs had in mind. Two
types of bellwether trials can be held when a large number of
plaintiffs assert the same or similar claims against a common
defendant or defendants. In the first type, the claims of a
representative plaintiff (or small group of plaintiffs) are tried,
and the parties in the other cases agree that they will be bound
by the outcome of that trial, at least as to common issues. See
ALI, Principles of the Law of Aggregate Litigation § 2.02,
cmt. b, p. 87 (2010); Restatement (Second) of Judgments
§ 40, cmt. a, p. 390 (1980). In the second (and far more
common) type of bellwether trial, the claims of a
representative plaintiff or plaintiffs are tried, but the outcome
of the trial is binding only as to the parties involved in the
trial itself. The results of the trial are used in the other cases
purely for informational purposes as an aid to settlement. See

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DUNSON V. CORDIS CORP. 7
Briggs v. Merck Sharp & Dohme, 796 F.3d 1038, 1051 (9th
Cir. 2015).
If 100 or more plaintiffs propose holding a bellwether
trial of the first type, in which the results of the trial will be
binding on the plaintiffs in the other cases, they have
proposed a joint trial of their claims for purposes of
§ 1332(d)(11)(B)(i). Bullard v. Burlington Northern Santa
Fe Railway Co., 535 F.3d 759, 762 (7th Cir. 2008).
However, a proposal to hold a bellwether trial of the second
type does not constitute a proposal to try the plaintiffs’ claims
jointly, for the verdict will not be binding on the other
plaintiffs and will not actually resolve any aspect of their
claims. True, a verdict favorable to the plaintiff in the
bellwether trial might be binding on the defendant under
ordinary principles of issue preclusion, but that is not enough.
See Briggs, 796 F.3d at 1051. To constitute a trial in which
the plaintiffs’ claims are “tried jointly” for purposes of
§ 1332(d)(11)(B)(i), the results of the bellwether trial must
have preclusive effect on the plaintiffs in the other cases as
well.
In Briggs, we held that when plaintiffs propose a
bellwether trial without saying anything more, we presume
that they mean a bellwether trial in which the results will not
be binding on the plaintiffs in the other cases but will instead
be used for informational purposes only. Id. We must decide
whether the plaintiffs in this case said something more in
their consolidation motion to indicate that when they referred
to “a bellwether-trial process,” they meant a process in which
the results of the bellwether trial would have preclusive effect
on the plaintiffs in the other cases.

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DUNSON V. CORDIS CORP. 8
Cordis contends that the plaintiffs did say something
more, as Briggs requires, in several respects. First, Cordis
argues that the plaintiffs must have been proposing a
bellwether trial whose results would have preclusive effect
because they requested consolidation under California Code
of Civil Procedure § 1048(a).1 According to Cordis,
§ 1048(a) does not permit consolidation solely for pretrial
purposes; thus, any request made under that statute must be
construed as a proposal to try the plaintiffs’ claims jointly.
We reject that reading of the statute, as nothing in the text of
§ 1048(a) precludes consolidation for pretrial purposes only.
The text of the statute was revised in 1971 to conform in
substance to Federal Rule of Civil Procedure 42, which has
long been interpreted to allow for consolidation for pretrial
purposes only. See MacAlister v. Guterma, 263 F.2d 65,
68–69 (2d Cir. 1958); 9A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2382, p. 19 & n.20
(3d ed. 2008). Nor have we found any California cases
holding that § 1048(a) forbids consolidation for pretrial
purposes only. The case Cordis cites to support its view
admittedly states that § 1048(a) authorizes two types of
consolidation, one involving consolidation for purposes of
trial and the other involving consolidation for all purposes,
including trial. Hamilton v. Asbestos Corp., 22 Cal. 4th 1127,
1147 (2000). But in that case the parties agreed that the
actions had been consolidated at least for purposes of trial;
the only issue was whether the consolidation extended to all
other proceedings in the case as well. The court was not
1 Section 1048(a) provides: “When actions involving a common
question of law or fact are pending before the court, it may order a joint
hearing or trial of any or all the matters in issue in the actions; it may
order all the actions consolidated and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.”

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DUNSON V. CORDIS CORP. 9
called upon to decide whether § 1048(a) permits
consolidation for purposes of pretrial proceedings alone.
Second, Cordis contends that the plaintiffs’ references in
their consolidation motion to “a bellwether-trial process”
must have meant a trial that would have preclusive effect,
because the plaintiffs also stated in the motion that creating
such a process would “avoid the risk of inconsistent
adjudications.” Cordis reads too much into the plaintiffs’
statements. Whenever the plaintiffs mentioned avoiding the
risk of inconsistent adjudications, they mentioned it as one
among several benefits of consolidating the cases “for
purposes of pretrial discovery and proceedings, along with
the formation of a bellwether-trial process.” We cannot tell
from these statements whether avoiding the risk of
inconsistent adjudications was deemed to be one of the
benefits of creating a bellwether-trial process, or perhaps
instead one of the benefits of consolidating the cases for
pretrial proceedings. Consolidating the cases for pretrial
proceedings could, on its own, avoid the risk of inconsistent
adjudications by eliminating the prospect of different judges
rendering conflicting rulings on motions for summary
judgment or motions in limine concerning the admissibility
of key evidence. Thus, the plaintiffs’ references to the
avoidance of inconsistent adjudications do not necessarily
shed light on which type of bellwether trial they were
proposing. Since Cordis bears the burden of showing that the
plaintiffs proposed a joint trial of their claims, see Scimone v.
Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013), the
inconclusive nature of the plaintiffs’ statements cuts against
its position.
In this respect, our case differs from Corber, the
precedent most supportive of Cordis’ argument. There, the

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DUNSON V. CORDIS CORP. 10
plaintiffs requested coordination of their cases “for all
purposes,” and in support of that request they stated that
coordinating the cases would reduce the risk of inconsistent
judgments and conflicting determinations of liability.
771 F.3d at 1223–24. We held that these statements
confirmed that the plaintiffs’ request for coordination “for all
purposes” included for purposes of trial, because the risks
they mentioned would likely be reduced only through some
form of joint trial. Id. But we noted that the result would
have been different had the plaintiffs limited their request for
coordination to pretrial matters. Id. at 1224–25. In that
event, the reference to the risk of inconsistent judgments and
conflicting determinations of liability would not have
conveyed an intention to propose a joint trial. That is the
situation here: The plaintiffs requested consolidation for
pretrial purposes, and because their references to the
avoidance of inconsistent adjudications could have been tied
to that aspect of their request alone, those references do not
necessarily say anything about whether they were proposing
a joint trial.
Finally, Cordis argues that any uncertainty regarding what
the plaintiffs meant by “inconsistent adjudications” is
dispelled by the plaintiffs’ definition of that term: “different
results because tried before different judge and jury, etc.”
That language, read in isolation, does suggest that a joint trial
would be needed to avoid the risk of inconsistent
adjudications. But the definition appears in a passage of the
motion devoted to explaining the general purposes of
consolidation, not the purposes for which the plaintiffs sought
consolidation in this case. Moreover, the plaintiffs
immediately followed the definition with this disclaimer:
“To be clear, Moving Plaintiffs are not requesting a
consolidation of Related Actions for purposes of a single trial

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DUNSON V. CORDIS CORP. 11
to determine the outcome for all plaintiffs, but rather a single
judge to oversee and coordinate common discovery and
pretrial proceedings.” That statement negates any notion that
the plaintiffs were speaking of a bellwether trial whose results
would have preclusive effect in the other cases. And if
further confirmation were needed that the plaintiffs proposed
a bellwether trial to be used solely for informational
purposes, it can be found in their subsequent statement that
“consolidation of the Related Actions may create the
opportunity for settlement of cases. Bellwether trials would
likely prove an effective tool to resolution of the . . . cases.”
In short, the plaintiffs requested consolidation for
purposes of pretrial proceedings, which standing alone does
not trigger removal jurisdiction under CAFA’s mass action
provision. The plaintiffs also requested consolidation for
purposes of establishing a bellwether-trial process, but
nothing they said indicated that they were referring to a
bellwether trial whose results would have preclusive effect on
the plaintiffs in the other cases. The district court therefore
correctly held that removal jurisdiction does not exist under
CAFA’s mass action provision, and it properly remanded the
cases to state court.
AFFIRMED.

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