Eleventh Circuit Confirms There Is No CAFA Jurisdiction Where Separate Suits Are Filed To Keep The Number Of Plaintiffs Under 100

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The plaintiffs—cruise passengers on the ill-fated Costa Concordia—filed two separate lawsuits, neither of which contained more than 100 plaintiffs.  Carnival removed those two actions to federal district court under the Class Action Fairness Act, arguing that the actions combined satisfy the jurisdictional requirement.  Both the district court and the Eleventh Circuit disagreed.  Scimone v. Carnival Corp., No. 13-12291 (11th Cir. July 1, 2013).  

The Eleventh Circuit had to address, in an issue of first impression, whether separate lawsuits are subject to removal as mass actions if the lawsuits in the aggregate contain 100 or more plaintiffs whose claims revolve around common questions of law or fact.  In joining the Third, Seventh, and Ninth Circuits, the Eleventh Circuit held that, under the plain language of CAFA, the district court lacked subject-matter jurisdiction over the plaintiffs’ two separate actions unless they “are proposed to be tried jointly.”  This proposal must come from the plaintiffs themselves, or potentially the state court sua sponte (the Court left this issue open).