In re Light Cigarettes Mktg. Sales Practices Litig..

Decision Date22 November 2010
Docket NumberNo. 1:09–md–02068–JAW.,1:09–md–02068–JAW.
Citation751 F.Supp.2d 205
CourtU.S. District Court — District of Maine


Harold M. Hewell, Hewell Law Firm, Alan M. Mansfield, Consumer Law Group, San Diego, CA, Joe R. Whatley, Jr., Whatley Drake Kallas, New York, NY, Nicholas B. Roth, Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, AL, Howard Weil Rubinstein, Law Office of Howard Weil Rubinstein, Aspen, CO, Samuel W. Lanham, Jr., Lanham Blackwell, P.A., Bangor, ME, Sara D. Avila, Wayne S. Kreger, Milstein Adelman & Kreger LLP, Santa Monica, CA, for Plaintiffs.Angel L. Tang, Arnold & Porter, LLP, Los Angeles, CA, David E. Kouba, James M. Rosenthal, Judith Bernstein–Gaeta, Michael S. Tye, Arnold & Porter, LLP, John H. Beisner, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, David Friederich Maron, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Jackson, MS, George Carter Lombardi, Jeffrey Mark Wagner, Kevin Anthony Banasik, Winston & Strawn, LLP, Chicago, IL, H. Peter Del Bianco, Jr., John F. Lambert, Jr., Lambert Coffin, Portland, ME, Kenneth J. Parsigian, Goodwin Proctor LLP, Boston, MA, Nancy Gordon Milburn, Philip H. Curtis, Arnold & Porter, LLP, New York, NY, Rick T. Beard, Marshall S. Ney, Mitchell, Williams, Selig, Gates & Woodyard, PLLC, Rogers, AR, Robert Dale Grimes, Bass Berry Sims PLC, Nashville, TN, Steven B. Weisburd, Dechert LLP, Austin, TX, Chad C. Messier, Dudley Topper & Feuerzeig, St. Thomas, VI, Will W. Sachse, Dechert LLP, Philadelphia, PA, for Defendants.


JOHN A. WOODCOCK, JR., Chief Judge.

Because the Plaintiffs' Second Amended Class Action Complaint relates back to their original complaints, which were filed before the passage of the Class Action Fairness Act, Pub. L. No. 109–2, 119 Stat. 4 (2005) (CAFA), the Court concludes that CAFA does not apply and grants Plaintiffs' Motion to Remand (Docket # 245) ( Pls.' Mot.).

I. STATEMENT OF FACTSA. Procedural History 1

On April 18, 2003, Loretta Lawson filed a complaint in Circuit Court, Pulaski County, Arkansas against Philip Morris Companies, Inc. and Philip Morris Incorporated. Pls.' Mot. Attach 4 (Docket # 245) ( Compl.). Just over one month later, Ms. Lawson filed her First Amended Class Action Complaint, adding Lisa Watson as a named plaintiff. Pls.' Mot. Attach 5 (Docket # 245) ( First Am. Class Action Compl.). Ms. Lawson and Ms. Watson filed the First Amended Class Action Complaint “on behalf of themselves and all other similarly situated.” Id. at 1. On July 2, 2003, the Defendants removed the case to federal court. Pls.' Mot. Attach 6 (Docket # 245) ( First Notice of Removal ). On August 1, 2003, the Plaintiffs moved to remand the case back to state court. Pls.' Mot. Attach 7 (Docket # 245) ( First Mot. for Remand ). For the next several years, the parties litigated this jurisdictional dispute in federal court. See Pls.' Revised Mem. in Support of Remand to State Court at 3–4 (Docket # 247) ( Pls.' Revised Mem.) (detailing the jurisdictional litigation). The underlying action was delayed or stayed until December 15, 2008. Id. at 4.

On April 15, 2010, Plaintiff Watson filed a Second Amended Class Action Complaint in Pulaski County Circuit Court, adding Wayne Miner and James Easley as parties.2 On May 13, 2010, the Defendants filed their Second Notice of Removal. See Pls.' Revised Mem. at 5. On October 18, 2010, the United States Judicial Panel on Multidistrict Litigation transferred the action to the District of Maine for inclusion in MDL No. 2068. MDL Transfer Order (Docket # 244). The Order advised the Plaintiffs that they could “present their remand motion to the transferee judge.” Id. That same day, the Plaintiffs filed their Motion to Remand, Pls.' Mot., and the Defendants filed their Response in Opposition to the Motion to Remand. Defs.' Resp. in Opp'n to Mot. to Remand (Docket # 246) ( Defs.' Opp'n.). On October 27, 2010, the Plaintiffs filed a Revised Memorandum. Pls.' Revised Mem., On November 3, 2010, the Defendants filed a response. Defs.' Resp. in Opp'n. to Pls.' Revised Mem. (Docket # 249).

B. The Parties' Positions

1. The Plaintiffs

The Plaintiffs argue that CAFA, the sole ground upon which the Defendants base removal, does not apply. Citing CAFA, the Plaintiffs assert that it applies only to civil actions commenced on or after CAFA's enactment on February 18, 2005. Pls.' Revised Mem. at 1. They note that when they filed their Second Amended Class Action Complaint, they did not add a class representative to an already existing class action nor did they name a defendant they failed to previously serve. Accordingly, they contend that, in filing their Second Amended Class Action Complaint, they did not commence a new action.

a. Addition of New Plaintiffs

The Plaintiffs cite several cases to support their assertion that the addition of class representatives does not commence a new action. They rely most heavily on Plubell v. Merck & Co., 434 F.3d 1070 (8th Cir.2006). Pls.' Revised Mem. at 6. They argue that Plubell is directly on point because it decided whether an amended complaint that replaced a previous class representative with a new one commenced a new action for purposes of CAFA. They read Plubell as holding that an amended complaint only commences a new action if it does not relate back to a previous complaint. Plaintiffs urge this Court to follow Plubell's analysis by determining whether their Second Amended Class Action Complaint relates back to the Complaints filed before February 18, 2005. Additionally invoking the Seventh Circuit case of Phillips v. Ford Motor Co., 435 F.3d 785 (7th Cir.2006), the Plaintiffs argue that Plubell and Phillips establish that the substitution of a named plaintiff in a class action ‘is a common and normally an unexceptionable ... feature of class action litigation’ that relates back to the original pleading.” Pls.' Revised Mem. at 7 (quoting Phillips, 435 F.3d at 787–88).

Plaintiffs further argue that the Second Amended Class Action Complaint relates back under Arkansas law. They assert that, under Arkansas law, “a plaintiff's ‘amended complaint relates back to his original complaint if the claims asserted in [the] amended complaint arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in his original complaint.’ Pls.' Revised Mem. at 7 (alteration in original) (quoting Whitehead v. The Nautilus Group, Inc., 428 F.Supp.2d 923, 928 (W.D.Ark.2006)). The Plaintiffs argue that this standard is met because “the allegations in Plaintiffs' Second Amended Class Action Complaint do not change the substance of Plaintiffs' claims whatsoever,” but merely add class representatives “who were already members of the putative class.” Id.

The Plaintiffs distinguish the Arkansas cases relied upon by the Defendants. Acknowledging that the Defendants cite cases in which the Arkansas Supreme Court held that amendments adding plaintiffs did not relate back, the Plaintiffs argue that those cases are distinguishable because, in each case, the plaintiff who filed the original complaint lacked standing. Id. at 8 (citing Bibbs v. Cmty. Bank of Benton, 375 Ark. 150, 289 S.W.3d 393 (Ark.2008), and Bryant v. Hendrix, 375 Ark. 200, 289 S.W.3d 402 (2008)). In contrast, Plaintiffs argue that Lisa Watson was a proper plaintiff with standing when the original complaints were filed and remains so today. Id. Therefore, Plaintiffs contend that Bibbs and Bryant do not apply. Finally, Plaintiffs cite extensively to other federal cases, which they argue hold that the addition of a class representative does not commence a new action. Id. at 9–13.

b. Service of Altria Group, Inc.

The Plaintiffs next address the Defendants' contention that the Second Amended Class Action Complaint commenced a new action because it named Altria Group, Inc. (Altria) as a defendant without previously serving Altria or its predecessor corporation. Id. at 14. The Plaintiffs argue they served Altria's predecessor, Philip Morris Companies, Inc. on June 3, 2003. Id. They cite an Affidavit of Service on Philip Morris Companies, Inc. and Philip Morris Incorporated (now PM USA) in which the affiant states that “Philip Morris Companies, Inc. and Philip Morris Incorporated were properly served according to Rule 4 of the Arkansas Rules of Civil Procedure.” Id.; Pls.' Revised Mem. Attach 1 ¶ 3 ( Aff. of Service ). They assert that the Second Amended Class Action Complaint named exactly the same defendants as the earlier complaints and merely described Altria as the successor corporation to Philip Morris Companies, Inc. Pls.' Revised Mem. at 14.

The Plaintiffs argue that even if Philip Morris Companies, Inc. was never served, it has waived the defense of defective service. Id. Citing Arkansas Rule of Civil Procedure 12(h)(1), the Plaintiffs contend that Philip Morris waived the defense because it “has lingered in the trial without drawing its concerns about service to the attention of the court.” Id. at 15. The Plaintiffs argue that such concerns should have been raised “promptly and diligently.” Id. (quoting Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929, 937–38 (1979)). The Plaintiffs point out that the Defendants' trial documents referred to Defendants in the plural; thus suggesting both PM USA and Altria were participating in the litigation. Id. at 14. The Plaintiffs accuse the Defendants of failing to raise this defense earlier “precisely so that [they] could remove immediately upon the filing of an amended complaint.” Id. at 16.

Finally, the Plaintiffs contend that the Second Amended Class Action Complaint could not have commenced a new action with respect to Altria because Altria was not served with the Second Amended Class Action Complaint. Id. On this point, the Plaintiffs seek to exploit the Defendants' own logic by arguing that, in Arkansas, “failure to comply with the service...

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