The 9th Circuit Court of Appeals held that a lawsuit filed by 26 insurance companies in their capacity as subrogee of 145 insured homeowners did not qualify as a mass action for the purposes of removal. In Liberty Mutual Fire Ins. Co. v. EZ FLO, 877 F. 3d 1081 (9th Cir. 2017). 26 Insurance Companies (?Plaintiffs?) brought suit in state court against Defendant manufacturer of an alleged defective part which was responsible for $5,000,000.00 in damages to the homes of 145 insured homeowners. Defendant removed to federal court on the basis of the suit qualified as mass action because it sought of $5,000,000.00 in damages and that the Amended Complaint included more than 100 named Plaintiffs. Plaintiffs moved to remand and the lower court held that it did not have jurisdiction under 28 U.S.C. ?1332(a) because the Amended Complaint did not include 100 named Plaintiffs. Defendant appealed.
The Court of Appeals made short work of the appeal rejecting Defendant?s claim that the insureds are Plaintiffs because the insurance companies depend upon the 145 insureds rights and they stand in their shoes. The Court said,
?Our conclusion that the insureds are not plaintiffs follows inexorably from the fact that they have not brought this lawsuit. Nor have they filed, served, or been served with any papers in this case. The insureds also have made no arguments and taken no positions, and there is no indication in the record that they have any right to control this lawsuit?s prosecution. Moreover, EZ?FLO?s counsel readily conceded at oral argument that the only ?plaintiffs? in this lawsuit are the 26 insurance companies.?