Scimone v. Carnival Corp., 13–12291

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Citation: 720 F.3d 876
• Docket Number: No. 13–12291,Non–Argument Calendar.,13–12291,n–Argument Calendar.
• Parties: Geoffrey SCIMONE, Nancy Scimone, Mario Lofaro, Nancy Lofaro, Agatina Vincenza Marfisi, et al., Plaintiffs–Appellees, v. CARNIVAL CORPORATION, Carnival Corporation & PLC, Costa Cruise Lines, Inc., Costa Crociere S.P.A., Joseph Farcus, Architect, P.A., Defendants–Appellants, John Does, et al., Defendants.
• Decision Date: 01 July 2013

720 F.3d 876

Geoffrey SCIMONE, Nancy Scimone, Mario Lofaro, Nancy Lofaro, Agatina Vincenza Marfisi, et al., Plaintiffs–Appellees,
v.
CARNIVAL CORPORATION, Carnival Corporation & PLC, Costa Cruise Lines, Inc., Costa Crociere S.P.A., Joseph Farcus, Architect, P.A., Defendants–Appellants,
John Does, et al., Defendants.

No. 13–12291
Non–Argument Calendar.

United States Court of Appeals,
Eleventh Circuit.

July 1, 2013.

[720 F.3d 878]

Louise R. Caro, Napoli Bern Ripka Shkolnik & Associates, LLP, Coconut Grove, FL, Marc Jay Bern, Napoli Bern Ripka, LLP, Great River, NY, Mitchell Proner, Proner & Proner, New York, NY, for Plaintiffs–Appellees.

Thad T. Dameris, Hogan Lovells US, LLP, Houston, TX, Alvin F. Lindsay, III, Hogan Lovells US, LLP, Miami, FL, David J. Weiner, Mary Helen Wimberly, Hogan Lovells US, LLP, Washington, DC, for Defendants–Appellants.

Appeal from the United States District Court for the Southern District of Florida.
Before CARNES, HULL and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

In 2012, one of Appellants' cruise ships, the Costa Concordia, ran aground off the coast of Italy. In the wake of the accident, many of the Costa Concordia's passengers sued Appellants (collectively referred to in this opinion as “Carnival”), filing dozens of actions in forums both in the United States and around the world. This appeal concerns two separate actions in particular, filed by groups of fifty-six and forty-eight plaintiffs in the Circuit Court of the Eleventh Judicial Circuit of Florida. Carnival removed both actions to the United States District Court for the Southern District of Florida, claiming that the district court had subject-matter jurisdiction under the mass-action provision of the Class Action Fairness Act of 2005 (“CAFA”), Pub.L. No. 109–2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.). Both groups of plaintiffs moved for remand to the state court on the ground that the district court lacked jurisdiction, and the district court granted plaintiffs' motions in February 2013.

We granted Carnival permission to appeal in order to resolve an issue of first impression in this Circuit: whether a defendant has the right, pursuant to 28 U.S.C. §§ 1332(d)(11), 1441, and 1453, to remove multiple and separate lawsuits to federal court as mass actions if the lawsuits in the aggregate contain 100 or more plaintiffs whose claims revolve around common questions of law or fact, but neither the plaintiffs nor the state court have proposed that 100 or more persons' claims be tried jointly. Under the plain language of CAFA and § 1332(d)(11), the district

[720 F.3d 879]

court lacked subject-matter jurisdiction over the plaintiffs' two separate actions unless they proposed to try 100 or more persons' claims jointly. Consequently, the cases were improvidently removed and should have been remanded, and we affirm the district court's order.

I.

This case begins with a shipwreck. The plaintiffs were all passengers on the Costa Concordia, a large cruise ship owned and operated by Carnival and its related corporate entities. On January 13, 2012, the Costa Concordia left Port Civitavecchia, Italy, to embark on a Mediterranean cruise. The ship's captain apparently decided to execute a maneuver known as a “bow” or “sail-by-salute,” which would bring the ship close to a nearby island. Disaster struck: the ship got too close, hit an underwater rock, and began listing to one side, eventually necessitating a complete evacuation. Thirty-two people died in the accident.

Unsurprisingly, these events spawned many lawsuits. Less than two weeks after the accident, six plaintiffs, including Appellee Scimone, filed a complaint (“ Scimone I”) against Carnival and related corporate entities in the Circuit Court of the Eleventh Judicial Circuit of Florida, alleging claims for negligence, professional negligence on the part of the ship's architect, and intentional torts. Additional potential plaintiffs, who had traveled on the Costa Concordia, asked to join the suit, and the Scimone I plaintiffs soon amended their complaint to name thirty-nine plaintiffs in total. In the ensuing weeks, yet another sixty-five Costa Concordia passengers indicated their desire to join the Scimone I action. Rather than adding these potential plaintiffs to the complaint, which would bring the total number of persons whose claims would be tried jointly over 100, the Scimone I plaintiffs voluntarily dismissed their complaint.

The original thirty-nine plaintiffs from Scimone I divided themselves into two groups and distributed the additional sixty-five Costa Concordia passengers between those two groups. In July 2012, the two groups filed two separate complaints in state court, each of which named less than 100 plaintiffs. One complaint (“ Scimone II”) ended up containing forty-eight plaintiffs, while the other complaint (“ Abeid–Saba”) contained the remaining fifty-six plaintiffs. The two complaints contain essentially the same allegations against Carnival, and there is no question that all 104 plaintiffs' claims concern common questions of law and fact.

The two groups of plaintiffs served their complaints on defendants in late August or early September 2012. Neither group of plaintiffs moved for consolidation of the two cases in state court. Nonetheless, on September 26, 2012, Carnival removed both Scimone II and Abeid–Saba to the United States District Court for the Southern District of Florida. Carnival argued for removal based on the mass-action provision of the Class Action Fairness Act and based on federal courts' exclusive jurisdiction over cases raising “substantial issues of federal common law relating to foreign relations.”

Subsequently, Carnival filed two motions to dismiss each case, based on the forum selection clause of plaintiffs' contracts and forum non conveniens. In turn, both groups of plaintiffs filed motions to remand their actions to state court pursuant to 28 U.S.C. § 1447. As for CAFA's mass-action jurisdiction, the plaintiffs argued that “federal jurisdiction does not exist under the ‘mass action’ provision of CAFA, where the action was brought on behalf of ... less than ... the number required for removal under CAFA's definition of a

[720 F.3d 880]

‘ mass action,’ ” and where “Plaintiffs have not and do not propose that this case be tried jointly with any other separate court action.” The plaintiffs also contended that the case did not implicate foreign relations, rendering removal on that ground improvident as well.

After briefing on the plaintiffs' motions to remand was complete, the district court granted both the Scimone II and Abeid–Saba plaintiffs' motions and remanded both cases to state court. The district court concluded that defendants could not remove pursuant to the mass-action provision of CAFA: “The problem for removal jurisdiction under the CAFA is that neither suit has 100 plaintiffs alone. It is also a problem that the Plaintiffs have not proposed for the cases to be tried jointly. Therefore, the CAFA does not supply a basis for removing these two identical lawsuits.” The district court also rejected Carnival's assertion that the case implicated federal common law regarding foreign policy. The district court therefore remanded both cases and denied all pending motions—including Carnival's motions to dismiss—as moot.

Pursuant to 28 U.S.C. § 1453(c)(1), Carnival petitioned for permission to appeal the district court's remand orders. We granted Carnival's petition on May 21, 2013.

II.

We review an issue of statutory interpretation de novo. United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir.2004). We also review a district court's decision to remand a case to state court for lack of subject-matter jurisdiction de novo. Lowery v. Ala. Power Co., 483 F.3d 1184, 1193 (11th Cir.2007); see28 U.S.C. § 1453(c)(1) (granting us jurisdiction to hear an appeal from a district court's grant or denial of a motion to remand a class action, notwithstanding 28 U.S.C. § 1447(d)'s general proscription on appellate review of a remand order).

According to Carnival, the district court erred in concluding that it lacked subject-matter jurisdiction over the two lawsuits pursuant to the mass-action provision of the Class Action Fairness Act, as codified at 28 U.S.C. § 1332(d)(11). The district court, however, got it right; Carnival had no right to remove these two actions pursuant to 28 U.S.C. §§ 1332(d)(11), 1441, and 1453.

The relevant portion of CAFA permits removal of a “mass action” as if it were a class action removable under § 1332(d), provided that the mass action satisfies the following conditions:

(i) ... [T]he term “mass action” means any civil action ... in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a).

(ii) ... [T]he term “mass action” shall not include any civil action in which—

(I) all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in States contiguous to that State;

(II) the claims are joined upon motion of a defendant;

(III) all of the claims in the action are asserted on behalf of the general public (and not on behalf of individual claimants or members of a purported class) pursuant to a State statute specifically authorizing such action; or

[720 F.3d 881]

(IV) the claims have been consolidated or coordinated solely for pretrial proceedings.

28 U.S.C. § 1332(d)(11)(B).

The definition of “mass action” contains several requirements that are not in dispute in this case. Both parties agree that the plaintiffs' claims involve common questions of law or fact—they all arise out of the same accident—and that at least some...