Broquet v. Microsoft Corp., _____ F. Supp. 2d ______, 2008 WL 2965074 (S.D. Tex)

According to a study that will be featured in the Journal of Adolescent Health, "Exposure to violent electronic media has a larger effect than all but one other well known threat to public health." And what exactly is that threat, you ask? "Cigarette smoking." But you know what is REALLY dangerous? Smoking Video Games.

So says the plaintiff in Broquet v. Microsoft Corp. In August 2006, Bonnie Broquet filed suit in Texas state district court on behalf of her daughter who suffered injuries from a fire allegedly resulting from a defective Xbox. Apparently, the Xbox had a wee power chord issue that resulted in a nationwide recall. Daddy Amador Lazo intervened in the action on behalf of him and the siblings and then filed a class action on behalf of all Xbox customers. 

Microsoft removed to federal court because, well, you know how much Microsoft loves federal court. Predictably, the plaintiffs moved to remand.

The plaintiffs and intervenor Daddy argued there was no jurisdiction under CAFA because the class was less than 100 members. Daddy defined his class as “each and every such Microsoft Xbox owner within the recall and defect at issue for the years made the subject of the recall.” The plaintiffs agreed that all owners of Xbox within the recall would be well over 100. The plaintiffs and intervenor Daddy claimed, however, that the class only consisted of owners of the Xbox that suffered a life threatening situation. 

In my view, that class would also include any persons that owned an Xbox and Tiger Woods Golf and any persons living with the fore mentioned persons when they EIGHT putt in a video game. Although the District Court did not take up that issue, ALTHOUGH IT IS A VALID POINT, it agreed, with not much explanation, that the class exceeded 100, thus giving the federal court jurisdiction.

Hmmmm. Now that I think about it, a class action against Tiger Woods for the mental anxiety he causes untold millions of video gamers. Just think of it. How many people play that game? Shoot, we would be removed for sure. And I live in the Southern District of Texas. They would probably not be so sympathetic to my cause. But maybe I could notice up Tiger Woods depo before I am poured out of court. That would be cool! He is not doing much right now. I diverge.

The Court noted the kind of sticky point that Daddy, as class representative, was not a member of the class because he did not own the Xbox at issue and thus was not within the recall. Whether a class can be certified and Daddy could be the class representative was irrelevant to the determination of the Court’s jurisdiction under CAFA. 

The Court also dismissed as irrelevant  the issue of federal court jurisdiction under CAFA of Daddy’s request to amend his petition and drop the class action allegations. The Court stated that its analysis of jurisdiction is based on the operative pleadings at the time of removal.

Interestingly, after the Court denied the motion to remand, Daddy amended his petition and “corrected” the allegations of class now “clarifying” that the class included only persons similarly situated to Daddy, that is, persons who have relatives injured by an Xbox subject to the recall. The plaintiffs (representing the injured child) filed a motion to reconsider the motion to remand arguing that the child was not injured by the same Xbox defect that was the subject of the recall.   The Court denied the motion for reconsideration and the 5^th Circuit denied the request to appeal by both the plaintiffs and Intervenor Daddy. 

S. Tolson