Saturday, December 13, 2008
BNA reports that a class action for medical monitoring and other state law claims concerning mold was remanded to state court under the exception set forth in 28 U.S.C. 1332(d)(3) which provides that if the primary defendant and between 1/3 and 2/3 of the plaintiff class are citizens of the forum state, the case may be remanded to state court. See Sorrentino v. ASN Roosevelt Center, E.D.N.Y., No. 08-550 (12/1/08).
One of the key questions was what a "primary defendant" is under the statute. Here's what BNA says about that issue:
While the court noted that the term “primary defendant” is not defined in CAFA, the court noted that a different district court in New York (in Brook v. United Health Group Inc., 2007 U.S. Dist. LEXIS 73640 (S.D.N.Y. 2007)) last year noted the term “has variably been defined as one: ‘(1) who has the greater liability exposure; (2) is most able to satisfy a potential judgment; (3) is sued directly, as opposed to vicariously, or for indemnification or contribution; (4) is the subject of a significant portion of the claims asserted by plaintiffs; or (5) is the only defendant named in one particular cause of action.'”