Federal Civil Practice

Ct. of Appeals denied defendants’ petition for leave to appeal filed under 28 USC section 1453(c) to challenge Dist. Ct.’s order remanding four of five state-court cases comprised of 5, 45, 18 and 3 unrelated plaintiffs alleging personal injuries arising out of defendants’ manufacture of prescription drug Trasylol, where all five cases had been removed to federal court pursuant to mass action provisions of Class Action Fairness Act (CAFA). Instant cases contained fewer than 100 plaintiffs, and thus were not removable under plain language of CAFA, even though fifth case alleging same cause of action contained 100 plaintiffs. Ct. rejected defendants’ contention that four remanded lawsuits should have been treated as one action and consolidated with fifth case to satisfy minimum plaintiff provisions of CAFA.

Ct. of Appeals denied petition for writ of mandamus filed by defendant-manufacturer of white lead pigments in underlying lawsuits seeking order directing Dist. Ct. to recuse himself from said cases based on 2007 law review article co-authored by Dist. Ct. in response to criticism of five decisions issued by Wisc. Supreme Court, which held that plaintiff could seek recovery for injuries received from ingesting white lead pigments found in plaintiff’s home even though plaintiff could not identify specific manufacturer of said pigments. While underlying diversity cases concerned four similar lawsuits against defendant and other manufacturers of white lead pigments in which defendant was seeking to attack holdings of Wisc. Supreme Ct, such fact did not require recusal of Dist. Ct. where: (1) Dist. Ct. explicitly disclaimed in article any opinion on merits of Wisc. Supreme Ct. cases; and (2) Dist. Ct. would not be revisiting holdings of Wisc. Supreme Ct. cases when ruling in underlying diversity actions.

Dist. Ct. did not err in certifying two classes of plaintiffs in class action alleging that defendant-window manufacturer committed consumer fraud by not publicly declaring to plaintiffs (purchasers of defendant's windows) role that purported design flaw in windows played in allowing wood rot that ultimately required replacement of said windows. While defendants argued that consumer fraud actions are not suitable for class action treatment, class action treatment was appropriate where subject windows allegedly suffered from single inherent design flaw, and where Dist. Ct. split classes into two groups of purchasers who either had or had not replaced windows. Moreover, under Dist. Ct.'s scheme, issues of probable cause and damages would be excluded from issues to be resolved by class action jury, and individual class members, having received verdict on design flaw issue, would be then be required to establish causation and damages issues in their individual claims against defendant.

Plaintiff, who filed qui tam action alleging that defendant fraudulently billed Medicare and Medicaid programs for medical devices and related services through use of improper reimbursement codes, could not maintain instant action where two prior qui tams actions, which concerned similar miscoding allegations against defendant for different time periods, were still pending at time plaintiff had filed instant action. However, plaintiff can file another qui tam action lawsuit at this time (since other qui tams actions have now been settled) if she can show that misconduct at issue in instant lawsuit was unrelated to national scheme alleged in other lawsuits.

In state-court class action lawsuit that had been removed to federal court pursuant to Class Action Fairness Act, Dist. Ct. erred in remanding case back to state court after plaintiffs had amended lawsuit to remove all class action allegations. Dist. Ct. acquired jurisdiction over lawsuit at time of removal, and nothing filed after removal could affect jurisdiction of Dist. Ct.

In personal injury action (arising out of airline crash) that had been removed pursuant to Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), Dist. Ct. lacked statutory power to sua sponte remand case back to state court, even though Dist. Ct. found that not all defendants had agreed to said removal. Any procedural defect to removal is subject to waiver if party fails to bring timely motion for remand, and no party filed motion for remand within 30 days after filing of notice of removal. Moreover, Dist. Ct. erred in finding that unanimous consent of all defendants was required since single defendant could remove case under MMTJA.

Dist. Ct. did not abuse discretion in dismissing on abstention doctrine grounds plaintiff's federal action seeking declaration that it had no duty to indemnify defendant in underlying state-court action alleging that defendant improperly rescinded insurance policy. Record showed that defendant had previously filed third-party complaint seeking indemnification against instant plaintiff in state-court action, and state-court action and instant federal action addressed same legal issue. Fact that parties in federal action were involved as third-party litigants in state-court lawsuit was immaterial.

Ct. of Appeals had jurisdiction to consider appeal of Dist. Ct. order granting defendant's motion for summary judgment in section 1983 action even though question arose as to whether said appeal was timely where counsel for plaintiff electronically sent notice of appeal (on last day of appeal period) that contained wrong event code. Although counsel sent corrected notice of appeal on subsequent day, mistake on original notice of appeal did not serve to invalidate said filing since nature of original notice of appeal was sufficiently clear.

Ct. of Appeals lacked jurisdiction to consider denial of defendants-police officers' motion for summary judgment in action alleging that defendants used excessive force in arresting plaintiff on disorderly conduct charges. Dist. Ct.'s denial was not final and appealable order under Johnson, 515 US 304, where basis of ruling was on existence of contested factual questions that precluded defendants from establishing existence of qualified immunity.

Defendant was not entitled to remand for reconsideration of denial of his motion for return of property seized by police in conjunction with defendant's criminal proceedings where said motion was made after defendant's conviction for crimes associated with assisting Iraq. While Dist. Ct. should have permitted defendant to convert his Rule 41(g) motion to civil proceeding (upon defendant's payment of civil filing fee), rather than requiring defendant to initiate new lawsuit, defendant did not timely appeal Dist. Ct.'s denial order. However, defendant can initiate new civil action seeking return of his property since relevant limitations period permits said filing within 6 years from close of criminal proceeding.