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Tobacco Class Action Defense Cases-Dahl v. R.J. Reynolds: Eighth Circuit Reverses Denial Of Motion To Remand Class Action To State Court

Class Action Remanded to State Court because Circuit Court of Appeals Opinion in a Different Case does not Constitute “an Amended Pleading, Motion, Order or Other Paper” Within the Meaning of 28 U.S.C. § 1442(b) Eighth Circuit Holds

In 2003, plaintiffs filed a class action in Minnesota state court against R.J. Reynolds & Touche for fraud and violations of state consumer protection laws alleging that the company engaged in “unfair business practices and/or deceptive and unlawful conduct in connection with the manufacture, distribution, promotion, marketing, and sale” of “light” cigarettes. Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 966 (8th Cir. 2007). Defense attorneys removed the class action complaint to federal court but the district court remanded the class action to state court because the claims of the individual plaintiffs were less than $75,000; the state court then dismissed the class action complaint on the ground that the claims therein were preempted by federal law under the Cigarette Labeling and Advertising Act of 1965, 15 U.S.C. § 1331. Id. During the pendency of the state court appeal, the Eighth Circuit issued an opinion that held another tobacco company had established federal officer jurisdiction in a case involving the marketing of light cigarettes, id. (citing Watson v. Philip Morris Cos., 420 F.3d 852 (8th Cir. 2005), cert. granted, ___ U.S. ___, 127 S.Ct. 1055 (January 12, 2007); defense attorneys again removed the class action to federal court, arguing federal officer jurisdiction, id. Plaintiffs’ lawyer moved to remand the class action complaint to state court, arguing that the notice of removal was untimely, but the district court denied the motion. Id. The Circuit Court reversed.

Briefly, the class action complaint was filed in 2003 and timely removed to federal court; following remand, the trial court dismissed the class action and plaintiffs appealed. Dahl, at 966. On August 25, 2005, while the appeal from the dismissal of the class action complaint was pending, the Eighth Circuit issued its opinion in Watson holding that Philip Morris had established federal officer jurisdiction under 28 U.S.C. § 1442(a), and on September 22, 2005, defense attorneys removed the class action to federal court under § 1442(a). Id., at 967. Plaintiffs argued that the removal was untimely as it was not brought within the 30-day limit set forth in § 1442(b); the district court denied the motion, agreeing with the defense that “Watson made it clear for the first time that federal courts have jurisdiction over claims like those in this case and its receipt of that opinion recommenced the thirty day time period for removal.” Id.

The Eighth Circuit summarized the issue at page 969 as follows: “Receipt of our Watson opinion could only recommence the thirty day limit for removal if Congress intended that receipt of a decision issued in a different case from the one before the court would be covered by the terms: ‘an amended pleading, motion, order or other paper’ [within the meaning of § 1446(b)].” The Circuit Court held that such an interpretation of the statute would be contrary to Congressional intent. Specifically, the Court of Appeals noted that the documents listed in § 1446(b) “are commonly produced in the course of litigating an individual case of any complexity, and each might introduce a new element into the case which could affect jurisdiction.” Dahl, at 969. Moreover, the documents “are listed in a logical sequence in the development of an individual case,” id. For this reason, “courts have interpreted the ‘other paper’ term in § 1446(b) to apply to papers and documents involved in the case being removed.” Id. (citations omitted). However, § 1446(b) does not suggest that “new developments in the law” may recommence the 30-day time period for removal, id.

In reaching its conclusion, the Eighth Circuit refused to accept defense arguments that case authority from the Third and Fifth Circuits supported a holding that opinions in “other cases” may constitute an “order and other paper” within the meaning of § 1446(b), explaining that in each of those cases the defendant seeking removal was itself a party to the separate case in which the other decision was reached creating federal jurisdiction. Dahl, at 969-70 (citing Green v. R.J. Reynolds Tobacco Co., 274 F.3d 263 (5th Cir.2001); Doe v. Am. Red Cross, 14 F.3d 196 (3d Cir.1993)). More importantly, “In both of those cases the defendant also had timely asserted the same basis for removal on which it later ultimately succeeded.” Dahl, at 970 (citing Green, 274 F.3d at 265; Doe, 14 F.3d at 198).

Finally, the Circuit Court also rejected defense arguments that “[o]nly after receiving the Watson opinion could it be certain consistent with Rule 11 that federal officer removal was appropriate it says.” Dahl, at 968. The Eighth Circuit held that “it was already ascertainable that federal officer jurisdiction could be a basis for removal at the time R.J. Reynolds first attempted to remove the complaint in this case.” Id., at 970. Accordingly, the Circuit Court reversed the district court order and remanded the class action to state court. Id., at 970-71.

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