Two thousand Central American banana farm workers suing over their alleged exposure to a pesticide were permitted split up their suits to avoid federal court jurisdiction under the Class Action Fairness Act. See Vanegas v. Dole Food Co., 2009 WL 690198 (C.D. Cal. 3/9/09). The opinion allowed the plaintiffs to craft their suits against the Dole Food Co., Dow Chemical Co., and other defendants, so that they each have no more than 100 plaintiffs and avoid CAFA’s mass action reach.
Plaintiffs allege that they were injured by exposure to 1, 2-Dibromo-3-chloropropane (“DBCP”), a toxic chemical sold under the brand names “Nemagon” and “Fumazone.” Plaintiffs allege that defendants manufactured, marketed, and distributed DBCP. Plaintiffs further allege that they were exposed to DBCP as a consequence of working on banana plantations in Costa Rica, Panama, Honduras, and Guatemala, owned or operated by defendants.
Plaintiffs were divided, alphabetically and by country, into 30 cookie cutter cases such that each case has less than 100 plaintiffs; they alleged claims for (1) products liability-negligence; (2) strict products liability; (3) products liability-defect in design, manufacture, and chemical composition; (4) products liability-breach of warranty; (5) fraudulent management; (6) intentional misrepresentation; (7) fraud by concealment; (8) general negligence; and (9) conspiracy.
Defendants removed, and plaintiffs sought remand. Plaintiffs argued that this case is not a “mass action” pursuant to the Class Action Fairness Act of 2005, 28 U.S .C. §§ 1332(d) and 1453, because their complaint s each contain less than 100 plaintiffs. Defendant responded that plaintiffs may not “gerry-mander their lawsuit to circumvent CAFA,” citing Freeman v. Blue Ridge Paper Products, Inc., 551 F.3d 405, 2008 WL 5396249, at *1 (6th Cir. Dec.29, 2008); Proffitt v. Abbott Laboratories, 2008 WL 4401367, at *5 (E.D.Tenn. Sept.23, 2008)). Defendants argued that plaintiffs cannot artificially splinter their actions to avoid jurisdictional thresholds.
The district court remanded, holding that the removal statute is to be “strictly construed against removal jurisdiction and any doubt must be resolved in favor of remand,” citing Hofler v. Aetna U.S. Healthcare of California, Inc., 296 F.3d 764, 767 (9th Cir.2002). These actions do not constitute “mass actions” under CAFA, said the court, because each of these actions has been brought by less than 100 plaintiffs. Tanoh v. AMVAC Chemical Corp., 2008 WL 4691004, at *5 (C.D.Cal. Oct.21, 2008). Nothing in CAFA suggests that plaintiffs, as masters of their complaint, may not “file multiple actions, each with fewer than 100 plaintiffs, to work within the confines of CAFA to keep their state-law claims in state court.” Tanoh, 2008 WL 4691004 at *5.
The court distinguished Freeman, saying the Sixth Circuit limited its ruling to one type of claim splitting. “In Freeman, the plaintiffs divided their suit into five separate suits with identical parties and claims, each covering distinct, sequential six-month time periods,” the court said. “By contrast, each of the cases at issue here involves distinct plaintiffs. Moreover, the Sixth Circuit explicitly noted that its holding is limited 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.”