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In re Roundup Products Liability Litigation

United States District Court, N.D. California

July 9, 2019

IN RE ROUNDUP PRODUCTS LIABILITY LITGATION
v.
Monsanto, 19-cv-01587-VC This document relates to Abreu Archambault
v.
Monsanto, 19-cv-01717-VC Ataide
v.
Monsanto, 19-cv-01289-VC Baum
v.
Monsanto, 19-cv-01018-VC Chupa
v.
Monsanto, 19-cv-01589-VC Conyers
v.
Monsanto, 19-cv-02001-VC Gonzalez
v.
Monsanto, 19-cv-01020-VC Kast
v.
Monsanto, 19-cv-01031-VC Rabbers
v.
Monsanto, 19-cv-01023-VC Rivas
v.
Monsanto, 19-cv-01024-VC Taylor
v.
Monsanto, 19-cv-01030-VC

          PRETRIAL ORDER NO. 157: GRANTING MOTIONS TO REMAND TO ALAMEDA COUNTY SUPERIOR COURT

          HONORABLE VINCE CHHABRIA, UNITED STATES DISTRICT COURT

         These remand motions involve a set of multi-plaintiff cases originally filed in state court against Monsanto and other defendants in which the plaintiffs allege that Roundup caused their cancer. The state court judge ordered the plaintiffs severed, but before the severance actually occurred (that is, before the multi-plaintiff cases were broken into separate complaints by single plaintiffs), Monsanto removed the cases to federal court. This was procedurally and jurisdictionally improper, so the cases are remanded. Under the removal statute, Monsanto will have thirty days after separate complaints are filed to remove any individual cases, provided the removal takes place within a year of when that case's original multi-plaintiff complaint was filed. See 28 U.S.C. § 1446(b)(3), (c)(1).

         I.

         Each of the eleven multi-plaintiff cases subject to this remand motion was filed in state court between March 2018 and January 2019. Most of the plaintiffs in each case are California residents. The complaints name as defendants Monsanto, Wilbur-Ellis Company, and Wilbur-Ellis Feed. Wilbur-Ellis Company distributes Roundup; Wilbur-Ellis Feed merely sells animal feed. All three defendants are incorporated in Delaware, but both Wilbur-Ellis Company and Wilbur Ellis Feed have their principal place of business in California. Monsanto's principal place of business is in Missouri.

         The Roundup cases pending in California state court are consolidated before Judge Winifred Smith in Alameda County Superior Court. On January 25, 2019, Judge Smith ordered the severance of all multi-plaintiff cases by June 30, 2019. To accomplish this severance, she directed that “all plaintiffs except one per case must be dismissed, and the other plaintiffs must file their own individual complaints.” As a result, these plaintiffs were under an obligation to file individual complaints by the end of June. But before that could happen, Monsanto removed the cases to federal court on the theory that diversity jurisdiction exists over a subset of the plaintiffs.

         II.

         Monsanto does not dispute that these cases are not removable on the face of the complaints. A lack of complete diversity precludes subject matter jurisdiction, and there are California residents on both sides of the dispute. 28 U.S.C. § 1332(a). Each case has numerous California plaintiffs, and defendants Wilbur-Ellis Company and Wilbur-Ellis Feed are both headquartered here. To avoid remand, Monsanto relies on a combination of two different exceptions to the complete diversity requirement: “fraudulent joinder” (which occurs when a non-diverse defendant is named in the lawsuit to defeat diversity jurisdiction, even though there is no claim against that non-diverse defendant) and “fraudulent misjoinder” of plaintiffs (which occurs when the plaintiffs, including some non-diverse plaintiffs, each have a claim but are improperly joined in the same lawsuit).

         The doctrine of fraudulent joinder applies when a non-diverse defendant has “no real connection with the controversy.” Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 (2d Cir. 1998). If it is “obvious” that a plaintiff has no cause of action against a defendant, the citizenship of that defendant can be ignored when assessing diversity jurisdiction. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). Although a high bar, fraudulent joinder does not require a showing of actual fraud. See Perry v. Luu, No. 1:13-CV-00729-AWI-JLT, 2013 WL 3354446, at *4 (E.D. Cal. July 3, 2013) (“‘Fraudulent joinder is a term of art,' and does not require an ill motive by a plaintiff.” (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987))). Rather, fraudulent joinder exists “if, after all disputed questions of fact and all ambiguities in the controlling state law are resolved in the plaintiff's favor, the plaintiff could not possibly recover against the party whose joinder is questioned.” Jurin v. Transamerica Life Ins. Co., No. C 14-02882 LB, 2014 WL 4364901, at *3 (N.D. Cal. Sept. 3, 2014).

         Monsanto contends that Wilbur-Ellis Feed was fraudulently joined by all of the plaintiffs, and Wilbur-Ellis Company was fraudulently joined by some of the plaintiffs. First, Monsanto argues that these plaintiffs do not have a claim against a company that sells only animal feed, meaning that Wilbur Ellis Feed's citizenship can be ignored when assessing diversity jurisdiction. By contrast, Wilbur-Ellis Company does sell Roundup, but only in the agricultural and industrial markets, not in the residential market. Thus, Monsanto contends that the company was improperly joined by any plaintiffs who attested (in their complaints or plaintiff fact sheets) that they were residential users. Monsanto therefore proposes that, for each multi-plaintiff case that has been removed, the plaintiffs who are residential users should remain in federal court, while the remaining plaintiffs can be remanded to state court.[1]

         However, the statute that governs remand speaks in terms of “remanding a case” - not remanding individual claims or parties. Therefore, Monsanto cannot carve a subset of plaintiffs out of each case. 28 U.S.C. § 1447; see also Salazar v. San Juan Cty. Det. Ctr., 301 F.Supp.3d 992, 1006 (D.N.M. 2017) (“The word ‘case' refers to the entire case, whereas the word ‘claim' refers to individual claims within the case.”). For Monsanto's plan to work, the cases would first need to be severed.

         Monsanto thus seeks to combine the concept of fraudulent joinder with the related concept of fraudulent misjoinder. Fraudulent misjoinder exists where “plausible claims have been asserted, ” but one set of parties (here, the plaintiffs) should not have been joined “due to a lack of some real connection” among them. Jurin, 2014 WL 4364901, at *3. Thus, while fraudulent joinder involves a party who should not have been sued at all, fraudulent misjoinder involves parties who should be proceeding in separate actions. See Early v. Northrop Grumman Corp., No. 2:13-CV-3130-ODW MRW, 2013 WL 3872218, at *2 (C.D. Cal. Jul. 24, 2013). Monsanto argues that these plaintiffs should never have been on the same complaint, and so this Court should sever the plaintiffs now and assess jurisdiction on a plaintiff-by-plaintiff basis.

         But Monsanto has not demonstrated that this is a case of fraudulent misjoinder. Fraudulent misjoinder requires not just “mere misjoinder, ” but joinder “so egregious” that it is akin to fraud. See Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072-73 (11th Cir. 2000). Thus, although this Court certainly agrees with Judge Smith's severance ruling, that ruling does not particularly help Monsanto in this context. Monsanto needs instead to show that the joinder of the plaintiffs was in obvious violation of California's joinder rules (which, incidentally, are more permissive than the federal rule). See Osborn v. Metro Life Ins. Co., 341 F.Supp.2d 1123, 1128-29 (E.D. Cal. 2014). Monsanto has not done this. After all, as evidenced by the proceedings in this MDL, there are at least some questions of fact and law common to all of the plaintiffs. Compare Tapscott, 77 F.3d at 1360 (addressing claims involving “wholly distinct” facts where the “only similarity” was the statute at issue), with Jurin, 2014 WL 4364901, at *4 (declining to apply the doctrine where there was a nexus between the allegedly misjoined parties).

         It bears noting that Monsanto is actually fortunate that its theory of removal is incorrect. If the theory were correct, then the removals would almost certainly be untimely. A defendant only has thirty days to remove a case from the time federal jurisdiction becomes apparent, and the facts underlying both concepts Monsanto invokes - fraudulent joinder and fraudulent misjoinder - were almost certainly apparent to Monsanto at or near the time the complaints were filed. 28 U.S.C. § 1446(b)(1), (3). For fraudulent joinder, Monsanto presumably knew at the outset that Wilbur Ellis Feed was not a proper defendant for any of the plaintiffs, and it presumably knew at or near the outset that Wilbur Ellis Company was not a proper defendant for some plaintiffs. And with respect to fraudulent misjoinder, if joining these plaintiffs in one state court lawsuit truly was an obvious violation of California's joinder rules, then Monsanto presumably knew this at the outset as well. In other words, all the arguments Monsanto now makes in support of removal could have been made at or near the outset of these cases. The only new development is Judge Smith's severance order, but, as already noted, her order does not itself stand for the proposition that any defendant or plaintiff was fraudulently joined or misjoined.

         Monsanto also seems to suggest that, irrespective of any arguments relating to fraudulent joinder or misjoinder, this Court should simply implement Judge Smith's order and sever the cases. But a federal court can only sever a case over which it has jurisdiction, and federal jurisdiction is assessed at the time of removal. See Allen v. F.D.I.C., 710 F.3d 978, 984 (9th Cir. 2013). The Court can't exercise jurisdiction it doesn't have for the purpose of creating federal jurisdiction. See Perry, 2013 WL 3354446, at *5 (“[T]he authority to sever misjoined claims or defendants under Rule 20 presumes the Court has jurisdiction to act.”) (alterations omitted). Thus, absent a ...


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