Thompson v. Wyeth, Inc. et al

MEMORANDUM in Support re MOTION to Remand to State Court

D. Mass.June 29, 2005

00005083.W PD ; 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS DAWN THOMPSON, on her own ) behalf and on behalf of all others ) similarly situated ) ) Plaintiff, ) Civil Action No. 05-cv-11169 ) v. ) ) WYETH, INC., et al. ) ) Defendants. ) PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO REMAND Kenneth G. Gilman, Esq. Douglas M. Brooks, Esq. Douglas J. Hoffman, Esq. GILMAN AND PASTOR, LLP 60 State Street, 37 Floorth Boston, MA 02109 Tel: (617) 742-9700 Fax: (617) 742-9701 Attorneys for Plaintiff and Proposed Class Representative Dawn Thompson Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 1 of 18 i00005083.W PD ; 1 TABLE OF CONTENTS INTRODUCTION .................................................................................................................... 1 ARGUMENT ........................................................................................................................... 3 I. THE RELEVANT LEGAL STANDARDS ..................................................... 3 II. CAFA DOES NOT APPLY TO THIS CASE ................................................. 4 CONCLUSION ...................................................................................................................... 13 Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 2 of 18 ii00005083.W PD ; 1 TABLE OF AUTHORITIES CASES Abernathy v. Consolidated Cab Co., 169 F. Supp. 831 (D. Kan. 1959) ........................................................................... 7, 12 Alshrafi v. American Airlines, Inc., 321 F.Supp. 2d 150 (D. Mass. 2004) ......................................................................... 4 American Buildings Company v. Varicon, Inc., 616 F.Supp. 641 (D. Mass. 1985) ................................................................................ 4 Beneficial National Bank v. Anderson, 123 S. Ct. 2058 (2003) ................................................................................................ 3 BIW Deceived v. Local S6, 132 F. 3d 824 (1 Cir. 1997) ........................................................................................st 4 Casteel v. Great southern Trucking Co., 167 F. Supp. 435 (E.D. Tenn. 1958) .......................................................................... 11 Cedillo v. Valcar Enters., 73 F. Supp. 932 (N.D. Tex. 1991) ............................................................................. 11 Danca v. Private Health Care Systems, Inc., 185 F. 3d 1 (1 Cir. 1999) ............................................................................................st 4 Gattegno v. Sprint Corporation, 297 F. Supp. 2d 372 (D. Mass. 2003) .......................................................................... 4 Hankins v. Pfizer, Inc., CV 05-1797 ABC (Rzx) (C.D. Cal. March 25, 2005) ......................................................................................... 2 Hunt v. Transport Indem. Ins. Co., No. 90-00041, 1990 U.S. Dist. LEXIS 16555 (D. Haw. July 30, 1990) ............... 7, 11 Keiffer v. Travelers Fire Ins. Co., 167 F. Supp. 398 (D. Md. 1958 ) .......................................................................... 8, 11 Knudsen v. Liberty Mutual Insurance Company, No. 05-8010, 2005 U.S. App. LEXIS 10440 (7 Cir. June 7, 2005) ....................th 1, 10 Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 3 of 18 iii00005083.W PD ; 1 Lomax v. Duchow, 163 F. Supp. 873 (D. Neb. 1958) .......................................................................... 8, 11 Lorraine Motors, Inc. v. Aetna Cas. & Surety Co., 166 F. Supp. 319 (E.D.N.Y. 1958) .......................................................................... 7, 8 Lott v. Pfizer, Inc., Case No. 05-cv-0230-MJR at 4 (S.D. Ill. April 7, 2005) ............................................. 2 Pritchett v. Office Depot, Inc., 360 F. Supp. 2d 1176 (D. Col. 2005) ................................................... 1, 3, 5, 6, 10-12 Rhinehart v. Cincinnati, Inc., 716 F. Supp. 7 (E.D. Mich. 1989) ......................................................................... 8, 11 Smith v. Pfizer, Inc., Case No. 05 cv-0112-MJR, at 9 (S.D. Ill. March 24, 2005) ........................................ 2 STATUTES 28 U.S.C. § 1332 ................................................................................................................. 1, 5 28 U.S.C. § 1332(d) ............................................................................................................. 1, 5 28 U.S.C. § 1441(a) ................................................................................................................. 3 28 U.S.C. § 1453. ................................................................................................................ 1, 5 P.L. 109-2, Section 4 ............................................................................................................... 5 P.L. 109-2, Section 5 ............................................................................................................... 5 P.L. 109-2, Section 9 ................................................................................................................ 5 Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 4 of 18 Referred to herein as Pritchett DC.1 Referred to herein as Pritchett App.2 100005083.W PD ; 1 INTRODUCTION Plaintiff Dawn Thompson (“Plaintiff”), by and through her undersigned counsel of record, hereby submits this response to the Notice of Removal (“Notice”) filed by Defendants Pfizer, Inc. (“Pfizer”) and Warner Lambert Company LLC (“Warner-Lambert”) on June 6, 2005. This action was originally filed in the Superior Court for Essex County, Massachusetts on February 11, 2005. In the Notice, Pfizer and Warner-Lambert claim that the case is subject to the Class Action Fairness Act, 28 U.S.C. §§ 1332(d), 1453 (hereinafter referred to as “CAFA”), even though it is undisputed that the case was filed in state Court prior to the enactment of CAFA on February 18, 2005. Although they can cite no case law or other authority confirming their reading of the statute, Pfizer and Warner-Lambert contend that CAFA is essentially retroactive, and that an action is not “commenced” for the purposes of CAFA until it is removed to federal court. Not surprisingly, this untenable “logic” has been rejected by every district court and court of appeal to consider it thus far, including the Court of Appeals for the Tenth Circuit, Pritchett v. Office Depot, Inc., 360 F. Supp. 2d 1176 (D. Col. 2005) , affirmed, 404 F. 3d1 1232 (10th Cir. 2005) (“the term ‘commenced’ in Section 9 of [CAFA] refers to the date the2 action was first filed in a court of proper jurisdiction, and not the date that it was removed to federal court”), and the Seventh Circuit in Knudsen v. Liberty Mutual Insurance Company, No. 05-8010, 2005 U.S. App. LEXIS 10440, at *2-3 (7 Cir. June 7, 2005) (agreeing withth Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 5 of 18 Copy submitted herewith as Exhibit A.3 Copy submitted herewith as Exhibit B.4 Copy submitted herewith as Exhibit C.5 200005083.W PD ; 1 Pritchett's conclusion that “a civil action is ‘commenced’ for purposes of § 9 [of CAFA] when it is filed in state court and not when some later step occurs in its prosecution,” such as removal to federal court). This argument has also been raised by Pfizer in several other federal district courts and has been rejected each time. Hankins v. Pfizer, Inc., CV 05-1797 ABC (Rzx), at 3 (C.D. Cal. March 25, 2005) (“[r]emoving defendants cannot rely on diversity conferred by CAFA,3 which was not enacted at the time the state action was filed”); Smith v. Pfizer, Inc., Case No. 05 cv-0112-MJR at 9 (S.D. Ill. March 24, 2005) (“[t]his Court rejects Pfizer’s argument that4 ‘commenced’ means the date the case reached federal court (i.e., the date a case was removed) rather than the date the complaint was filed”); Lott v. Pfizer, Inc., Case No. 05-cv- 0230-MJR at 4 (S.D. Ill. April 7, 2005) (same). Each of these decisions addressed the exact5 issue raised here: what constitutes “commencement” of an action under CAFA. These decisions recognize that the term “commenced” in Section 9 of CAFA refers to the date the action was first filed in a court of proper jurisdiction, not the date it was removed to federal court. These decisions further recognize that Congress specifically rejected proposals to make CAFA applicable to cases already pending in state court, and that statements on the floor by the bill’s sponsors reveal that CAFA was never intended to apply to cases already pending in state court. Although Pfizer and Warner-Lambert cite cases which address other jurisdictional Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 6 of 18 300005083.W PD ; 1 provisions and amendments (Notice ¶ 17), nowhere in the Notice do Pfizer or Warner- Lambert cite a single case that adopts their position regarding the “commencement” of an action under CAFA. As explained in detail below, the legislative history of CAFA makes it “clear that supporters and opponents of the bill in both houses understood that the Act would not apply to pending cases.” Pritchett DC, 360 F. Supp. 2d at 1179. This Court should therefore reject Pfizer and Warner-Lambert’s deeply flawed interpretation of CAFA. Because CAFA only applies to actions “commenced” on or after February 18, 2005, and because this action was commenced on February 11, 2005 when it was first filed in the Superior Court for Essex County, a court of proper jurisdiction, CAFA has no application here and cannot provide a basis for federal jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., Nos. 04-70, 04-79, 2005 U.S. LEXIS 5015, at *47 (2005) (“The CAFA . . . is not retroactive . . .”). Because Pfizer and Warner-Lambert’s entire argument for the existence of diversity jurisdiction is premised upon the applicability of CAFA to this case, the only proper result is for this case to be remanded to Essex County Superior Court. ARGUMENT I. THE RELEVANT LEGAL STANDARDS A civil action is removable only if the plaintiff could have originally brought the action in federal court. See 28 U.S.C. § 1441(a). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Generally, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim. Beneficial National Bank v. Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 7 of 18 There is nothing in CAFA that can be read to abrogate this basic principle, nor have Pfizer and6 Warner-Lambert cited any provision or language which has such an effect. Pfizer and Warner-Lambert do not contend that there would be diversity jurisdiction over this case7 without the application of CAFA. 400005083.W PD ; 1 Anderson, 123 S. Ct. 2058, 2062 (2003) (“Beneficial”). It is axiomatic that the removal statute is to be strictly construed and that any doubts about the propriety of removal are to be resolved against the removal of an action. See, e.g., Danca v. Private Health Care Systems, Inc., 185 F. 3d 1, 4 (1 Cir. 1999); BIW Deceived v. Local S6, 132 F. 3d 824, 831 (1 Cir.st st 1997); Alshrafi v. American Airlines, Inc., 321 F.Supp. 2d 150, 153 (D. Mass. 2004, Young, C.J.); American Buildings Company v. Varicon, Inc., 616 F.Supp. 641, 643 (D. Mass. 1985, Young, J.). Furthermore, a party seeking to remove a case to federal court has the burden of6 demonstrating the existence of federal jurisdiction. BIW Deceived, 132 F. 3d at 831; Alshrafi, 321 F.Supp. 2d at 153; Gattegno v. Sprint Corporation, 297 F. Supp. 2d 372, 374 (D. Mass. 2003). II. CAFA DOES NOT APPLY TO THIS CASE On June 7, 2005, Pfizer and Warner-Lambert filed a Notice of Removal with this Court, arguing that this Court has diversity jurisdiction over this action because the provisions of CAFA apply to this case. Section 9 of CAFA provides that the “amendments7 made by this Act shall apply to any civil action commenced on or after the date of enactment of this Act [February 18, 2005].” 109 P.L. 2, Sec. 9. However, Pfizer and Warner-Lambert claim that the term “commenced” in section 9 refers to the date that a defendant removes the case to federal court. (Notice ¶ 22). They therefore contend that CAFA applies to this action because it was not “commenced” until the Notice of Removal was filed. Id. Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 8 of 18 The statute establishes subject-matter jurisdiction in federal court over class actions where (1) the putative8 class action consists of at least 100 proposed class members; (2) the citizenship of at least one proposed class member is different from that of the defendant, and (3) the matter in controversy, after aggregating the claims of the proposed class members, exceeds five million dollars, exclusive of interest and costs. P.L. 109-2, Section 4; 28 U.S.C. § 1332(d). 500005083.W PD ; 1 This case should be remanded to the Essex County Superior Court because the term “commenced” in Section 9 of CAFA refers to the date the action was first filed in a court of proper jurisdiction, not the date it was removed to federal court. Pritchett DC, 360 F. Supp. 2d at 1181; Pritchett App., 404 F.3d at 1238. Pfizer and Warner-Lambert’s interpretation of the term “commenced” in the context of CAFA is nonsensical given the plain language and legislative history of CAFA, and it has been rejected by each federal court to address the issue. By its provisions, CAFA amended 28 U.S.C. § 1332 to loosen the requirements for diversity jurisdiction in connection with certain class action cases. Section 5 of CAFA8 allows for the removal of such applicable class actions to federal court. P.L. 109-2, Section 5; 28 U.S.C. § 1453. As noted above, CAFA was enacted on February 18, 2005. CAFA states that “[t]he amendments made by this Act shall apply to any civil action commenced on or after the date of enactment of this Act.” P.L. 109-2, Section 9. In Pritchett, the Defendant made the exact same argument offered here by Pfizer and Warner-Lambert. Both the District Court and the Tenth Circuit Court of Appeals reached the following conclusion: [T]his Court determines that the term “commenced” in Section 9 of the Act refers to the date the action was first filed in a court of proper jurisdiction, not the date that it was removed to federal court. Consequently, the Act does not apply to cases, such as this one, commenced prior to February 18, 2005. Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 9 of 18 600005083.W PD ; 1 Pritchett DC, 360 F. Supp. 2d at 1181 (emphasis added); Pritchett App., 404 F.3d at 1238 (“[b]ecause we conclude that removal to federal court does not ‘commence’ an action for the purposes of the Class Action Fairness Act of 2005, the district court’s remand order is AFFIRMED”). In Pritchett, the Tenth Circuit started its analysis with the “well-established” principle that “statutes conferring jurisdiction upon the federal courts, and particularly removal statutes, are to be narrowly construed.” Pritchett App., 404 F.3d at 1235; Pritchett DC, 360 F. Supp. 2d at 1181 (noting that all doubts are to be “resolved against federal jurisdiction”). The Courts also considered the meaning of the term “commenced,” observing the fact that “traditionally, a cause of action is commenced when it is first brought in an appropriate court, which here was when it was brought in state court . . . When a matter is removed to federal court, it is not traditionally viewed as recommenced, nor as a new cause of action.” Pritchett App., 404 F.3d at 1235; Pritchett DC, 360 F. Supp. 2d at 1181. (same). The Tenth Circuit in Pritchett also reviewed the legislative history of CAFA. The Court discovered that Congress had expressly rejected a provision that would have made CAFA applicable to actions already pending in state court as of its effective date: When the Act was originally introduced in the House, the removal provision applied both to cases “commenced” on or after the enactment date and to cases in which a class certification order is entered on or after the enactment date. In contrast, neither the Senate version of the bill nor the final statute passed by both houses of Congress provided for removal of actions certified on or after the enactment date. The Senate version and the final statute provided only for application of the Class Action Fairness Act to civil actions “commenced” on or after the date of the Act. It is thus clear that Congress initially started out with broader language that could have included a number of then-pending lawsuits in state courts. By excising the House provision, Congress signaled an intent to narrow the removal provisions of the Act to Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 10 of 18 The District Court’s opinion in Pritchett also rejected Abernathy v. Consolidated Cab Co., 169 F. Supp.9 831 (D. Kan. 1959), cited by Pfizer and Warner-Lambert, which it considered to be among the Lorraine Motors line of cases. Pritchett DC, 360 F. Supp. 2d at 1178-79. 700005083.W PD ; 1 exclude currently pending suits. Pritchett App., 404 F.3d at 1236 (citing House and Senate Reports) (emphasis added). Moreover, Pritchett observed that the Congressional Record contained two statements from sponsoring legislators indicating that the bill was not designed to apply to currently pending lawsuits. Pritchett App., 404 F.3d at 1236-37 (citing 151 Cong. Rec. S1080 (daily ed. Feb. 8, 2005) (statement of Sen. Dodd) (“[The Act] does not apply retroactively, despite those who wanted it to. A case filed before the date of enactment will be unaffected by any provision of this legislation.”); 151 Cong. Rec. H753 (daily ed. Feb. 17, 2005) (statement of Rep. Goodlatte) (“Since the legislation is not retroactive, it would have absolutely no effect on the 75 class actions already filed against Merck in the wake of the Vioxx withdrawal.”)). Accordingly, Pfizer and Warner-Lambert’s reading of CAFA Section 9 is directly contradictory to the express intent of Congress. Pritchett also addressed some prior cases, including cases cited by Pfizer and Warner-Lambert here, addressing amendments to other jurisdictional provisions, such as the amount in controversy minimum requirement: Lorraine Motors, Inc. v. Aetna Cas. & Surety Co., 166 F. Supp. 319 (E.D.N.Y. 1958); and Hunt v. Transport Indem. Ins. Co., No. 90- 00041, 1990 U.S. Dist. LEXIS 16555 (D. Haw. July 30, 1990) (Notice ¶¶ 17-20). The Tenth9 Circuit noted that Lorraine Motors and Hunt are “relevant only by analogy,” as they dealt with a completely different statutory provision, Pritchett App., 404 F.3d at 1237. In addressing these cases, the Tenth Circuit stated: Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 11 of 18 The District Court in Pritchett also recognized the faulty reasoning advanced by the removing defendant10 in that case: “it offends reason to permit the removal of a case where the current requirements of diversity jurisdiction were not present at the time the case was first filed in state court.” Pritchett DC, 360 F. Supp. 2d at 1179 (internal quotation marks omitted). Citing Keiffer v. Travelers Fire Ins. Co., 167 F. Supp. 398, 402 (D. Md. 1958 ) (holding that action is11 “commenced” on initial filing date in state court and declining to impose higher amount-in-controversy requirement imposed prior to removal) and Rhinehart v. Cincinnati, Inc., 716 F. Supp. 7,8 (E.D. Mich. 1989) (same). See also Lomax v. Duchow, 163 F. Supp. 873, 874 (D. Neb. 1958) (same). 800005083.W PD ; 1 [T]here is a major difference between a statute that defines additional circumstances in which diversity of citizenship exists (such as the Class Action Fairness Act) and a statute that increases the amount-in-controversy requirement. The latter attempts to restrict federal court jurisdiction, while the former attempts to expand it. Both Hunt and Lorraine Motors rely heavily upon the principle that removal statutes are to be strictly construed, with all doubts resolved against removal. Thus, in those cases, interpreting the term “commenced” as referring to the filing of the removal petition would serve that aim by restricting the number of preexisting state claims that could be removed. In contrast, such an interpretation here would actually permit broader federal court jurisdiction by increasing the number of removable actions. Given this, we remain convinced that [the] term “commenced” in the Act refers to the initial filing, not the removal date. Pritchett App., 404 F.3d at 1237-38 (citations omitted).10 The Tenth Circuit also recognized that Lorraine Motors and Hunt were not even the definitive authority as to the statutory amendments they addressed because other contemporaneous cases had reached the opposite conclusion. Pritchett App., 404 F.3d at11 1237. Consequently, their relevance to interpreting CAFA was further undermined. Id. The Court of Appeals then noted that the reasoning in Lorraine Motors and Hunt “actually support[ed] [its] interpretation of the term ‘commenced’” and that both cases “rely heavily upon the principle that removal statutes are to be strictly construed, with all doubts resolved against removal.” Id. Realizing that Pritchett provides a sound basis for remanding this case to state court, Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 12 of 18 900005083.W PD ; 1 Pfizer and Warner-Lambert try vainly to distinguish or discredit Pritchett. These Defendants attempt to distinguish Pritchett on the facts, claiming the holding was reached because the case had already been pending for an extended period of time, and was removed more than 30 days after service of the Complaint. (Notice ¶¶ 28-30). The result of Pritchett, however, did not rest upon these considerations, and these Defendants completely miss the point. The Tenth Circuit’s decision in Pritchett was based on a finding that Congress did not intend for the CAFA to apply to cases already pending in state court. In fact, Pritchett explicitly holds that CAFA does not apply to any case filed in state court prior to February 18, 2005. Pritchett App., 404 F.3d at 1238; Pritchett DC, 360 F. Supp. 2d at 1181. In addition, the U.S. Supreme court has recently reached a similar holding, stating that: “[t]he CAFA . . . is not retroactive . . .” Exxon Mobil, 2005 U.S. LEXIS 5015, at *47 (holding that CAFA is irrelevant to interpreting the supplemental jurisdiction statute as it existed prior to CAFA’s enactment). Whether a case was filed two years or two days before enactment of CAFA is irrelevant. CAFA simply does not reach any case filed in state court prior to February 18, 2005. The analysis ends there. Pfizer and Warner-Lambert also try to discredit Pritchett by contending that its holding is contrary to Congress’ intent, in enacting CAFA, to expand federal jurisdiction. (Notice ¶¶ 30-31). Although CAFA certainly broadened federal jurisdiction in some specified circumstances, it only did so for cases that fall under its purview, and as already demonstrated, this is not such a case. Despite these Defendant’s protestations to the contrary, the District Court in Pritchett is correct when it states: “[a]lthough the Act is unusual in that it seeks to broaden federal jurisdiction in certain specified circumstances, it Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 13 of 18 1000005083.W PD ; 1 does not purport to abrogate [the principle that removal statutes are to be strictly construed and doubts are to be resolved against federal jurisdiction].” Pritchett DC, 360 F. Supp. 2d at 1181. The Tenth Circuit also addressed this point, as follows: [w]e are mindful of the fact that Congress’ goal in passing this legislation was to increase access to federal courts, and we also recognize that the Senate report instructs us to construe the bill’s terms broadly. But these general sentiments do not provide carte blanche for federal jurisdiction over a state class action any time the statute is ambiguous. While it is clear the Congress wished to expand federal jurisdiction, when that expansion is made effective is what is at issue in this case, and that is an issue we approach cautiously. Pritchett App., 404 F.3d at 1237, n.6 (citations omitted) (emphasis added). See also Pritchett DC, 360 F. Supp. 2d at 1179 (“the general statement of purpose [of broadening access to the federal courts] in Section 2 of the Act does not address the more specific question of Congress’ intent with regard to the effect of the act on existing cases. The legislative history provides some evidence of a Congressional intent not to affect existing cases.”). The Tenth Circuit’s decision in Pritchett was recently further bolstered by the Seventh Circuit in Knudsen, which also stated that an action was “commenced” for purposes of CAFA when it was originally filed in state court. In Knudsen, the Seventh Circuit concluded as follows: Section 9 [of CAFA] tells us that it applies only to suits “commenced on or after the date of enactment of this Act.” That date is February 18, 2005 . . . Liberty Mutual Insurance Company removed this class action, which had been pending in state court since March 2000. The district judge promptly sent it back, observing that March 2000 precedes February 2005. Now Liberty Mutual asks us to entertain an appeal . . . We deny this petition, for we agree with Pritchett v. Office Depot, Inc., 2005 U.S. App. LEXIS 5896 (10th Cir. Apr. 11, 2005), that § 9 of the new Act must Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 14 of 18 Casteel v. Great southern Trucking Co., 167 F. Supp. 435 (E.D. Tenn. 1958), also cited by defendants,12 is a woefully outdated one-page district court decision citing Lorraine Motors, which addresses the 1958 amendment to the amount in controversy requirement under the diversity jurisdiction statute. It provides very little in the way of a legal basis for its decision and has never been cited as authority in any published decision by any Court. Cedillo v. Valcar Enters., 773 F. Supp. 932 (N.D. Tex. 1991) was a case addressing amendments to the supplemental jurisdiction statute and is therefore relevant only by analogy. 1100005083.W PD ; 1 be taken seriously. Deconstructionist tactics do not permit its evasion. The defendant in Pritchett contended that the notice of removal itself commenced a new case (the one in federal court). Rebuffing that effort to sidestep the legislative decision, Pritchett concluded that a civil action is “commenced” for purposes of § 9 when it is filed in state court and not when some later step occurs in its prosecution. Equating filing with commencement is the norm in civil practice. See Fed. R. Civ. P. 3. Knudsen, 2005 U.S. App. LEXIS 10440, at *1-2 (emphasis added). The Pritchett and Knudsen decisions represent the only federal court decisions to address the exact issue raised by Pfizer and Warner-Lambert in the context of CAFA, whereas the cases cited by these Defendants address completely different jurisdictional provisions and as recognized in Pritchett, they are relevant, if at all, only by analogy. 12 Second, the cases cited by Pfizer and Warner-Lambert are undercut by the presence of contemporaneous contrary authority. See, e.g., Rhinehart, supra; Kieffer, supra; Lomax, supra. Even Hunt, one of the three cases relied upon by Pfizer and Warner-Lambert, recognized the existing “split of authority” on the issue at the time. Hunt, 1990 U.S. Dist. LEXIS 16555, at *12. Pfizer and Warner-Lambert completely ignore this conflicting authority. Finally, most of the cases cited by Pfizer and Warner-Lambert in paragraph 17 of the Notice rely on the principle that removal statutes are to be strictly construed. They are, therefore, consistent with Pritchett and support the construction of CAFA that would result Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 15 of 18 1200005083.W PD ; 1 in a remand of this case. See Lorraine Motors, 166 F. Supp. at 322 (“[i]t has been held uniformly that the removal statutes are to be strictly construed and that removal should not be granted if there is doubt as to the right of removal in the first instance”) (citations omitted); Hunt, 1990 U.S. Dist. LEXIS at *16-17 (basing holding, in part, upon “The Ninth Circuit's statement in Libhart that removal statutes should be strictly construed against removal”); Abernathy v. Consol. Cab Co., 169 F. Supp. 831, 834 (D. Kan. 1959) (remanding case pursuant to the policy that the diversity jurisdiction statute was to be construed strictly). A final reason to reject Pfizer and Warner-Lambert’s interpretation of CAFA is that there would be no end to the reach of the statute, as it would permit the removal of nearly every pending class action in every state court. As the Tenth Circuit stated in Pritchett: “. . . Defendant’s argument, if accepted, could have serious consequences for both the federal judiciary and . . . the state bench. Permitting the Act to apply to currently pending state suits would, in the words of the chairman of the Senate Judiciary Committee, ‘be extraordinarily disruptive of many State court proceedings.’” Pritchett App., 404 F.3d at 1238 (citing 151 Cong. Rec. S1225 (daily ed. Feb. 10, 2005) (statement of Sen. Specter)). The Tenth Circuit went on to state: “The consequences of Defendant’s argument are sufficiently dramatic that we are not eager to ascribe those motivations to Congress without a clearer expression than we find here.” Id. The District Court described the consequences of Defendants’ interpretation in even more detail: [R]eading the statute in the manner urged by the Defendant . . . would permit the removal of nearly every presently-pending class action in every state court, resulting in a sudden tidal wave of filings on an already burdened federal judiciary, rather than the gradual, incremental flow of newly-filed class actions that would result from a purely prospective application of the Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 16 of 18 1300005083.W PD ; 1 Act. Such a reading would also deem certain substantive provisions of the Act to apply to presently-pending cases, potentially frustrating the expectations of current litigants. For example, Section 3 of the Act creates new, substantive restrictions on the approval of “coupon settlements,” in which class-action plaintiffs receive coupons instead of cash. If the Court were to construe the Act to apply to cases then-pending in state courts [it would] frustrate the expectations of parties who might have litigated these suits to near-conclusion, only to find that a negotiated settlement that awaited judicial approval was stymied by the Act. Pritchett DC, 360 F. Supp. 2d at 1181 (citations omitted). Given the ridiculous consequences that would necessarily flow from Pfizer and Warner-Lambert’s interpretation of CAFA, Plaintiffs urge this Honorable Court to reject their flawed interpretation, and to hold, in accordance with the clear intent of Congress, that CAFA does not apply to this case. CONCLUSION For all of the reasons set forth herein, the motion to remand should be granted and this action should be remanded to the Superior Court for Essex County Massachusetts. DATED: June 29, 2005 GILMAN AND PASTOR, LLP By: /s/ Douglas M. Brooks Douglas M. Brooks, BBO #058850 Kenneth G. Gilman, BBO #192760 Douglas J. Hoffman BBO #640472 60 State Street, 37 Floorth Boston, MA 02109 Tel: (617) 742-9700 Fax: (617) 742-9701 Attorneys for Plaintiff and Proposed Class Representative Dawn Thompson Case 1:05-cv-11169-DPW Document 15 Filed 06/29/2005 Page 17 of 18 00005083.W PD ; 1 CERTIFICATE OF SERVICE I hereby certify that on June 29, 2005, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. I further certify that the foregoing was served by first class mail upon the following counsel of record not identified on the NEF as electronic recipients: John E. Hall, Esq. Michael Labson, Esq. Covington & Burling 1201 Pennsylvania Ave., N.W. Washington, D.C. 20004 Counsel for Proctor and Gamble Company Joseph F. Shea, Esq. Nutter McClennen & Fish LLP World Trade Center West 155 Seaport Blvd. Boston, MA 02210-2604 Counsel for McNeil-PPC, Inc. GILMAN AND PASTOR, LLP By: /s/ Douglas M. Brooks Douglas M. Brooks, Esq. 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