Brandle remand

Case3:12-cv-05945-RS Document28 Filed03/25/13 Page1 of 7

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7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9 SAN FRANCISCO DIVISION
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United States District Court

CAROLE REICHEL, et al., No. 12-05945 RS
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For the Northern District of California

Plaintiff, ORDER GRANTING MOTION TO
12 REMAND
v.
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14 MCKESSON CORPORATION, et al.,
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Defendants.
16 ____________________________________/
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19 I. INTRODUCTION
20 This is one of many cases currently pending in various state and federal courts alleging
21 harms to consumers from proxyphene. Defendants removed these lawsuits on the grounds of
22 fraudulent joinder and misjoinder, and some of the cases were transferred by the MDL panel to
23 the Eastern District of Kentucky. Plaintiffs in the transferred cases filed motions to remand in
24 the MDL Court, which ordered that all cases be remanded to the California state courts in which
25 they were originally filed. On October 23, 2012 counsel for plaintiffs filed a Coordination
26 Petition under California Code of Civil Procedure § 404, requesting that all cases be consolidated
27 before “[o]ne judge hearing all of the actions for all purposes in a selected site or sites [to]
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NO. CV 12-05945 RS
ORDER GRANTING MOTION TO REMAND


1 promote the ends of justice.”
2 This particular case was filed on November 16, 2012 in the Superior Court of San
3 Francisco County. It is included in the Coordination Petition. Defendant Lilly removed this
4 action to this Court on November 20, 2012 premised on the theory it constituted a Class Action
5 Fairness Act of 2005 (CAFA) “mass action” for jurisdictional purposes or, in the alternative, that
6 the Court has federal question and supplemental jurisdiction. On February 25, 2013, plaintiffs
7 filed this motion to remand on the grounds that coordinated cases do not constitute a CAFA mass
8 action and that their claims are not removable under federal question jurisdiction.
9 On January 29, 2013, this Court issued an Order remanding Posey et. al. v. McKesson
10 Corporation et. al., No C 12-05939 RS to the Superior Court of San Francisco County. In

11 Posey, the plaintiffs, as here, allege personal injury resulting from ingestion of proxyphene pain

12 products, and the action was included in the Coordination Petition. In Posey, removing
13 defendants, as Lilly does here, asserted CAFA mass action jurisdiction as a basis for removal.
14 The Posey removing defendant has filed a Notice of Appeal of the remand order to the Ninth
15 Circuit.
16 This matter is appropriate for adjudication without oral argument, and is submitted
17 accordingly pursuant to Civil Local Rule 7-1(b). For the following reasons, the motion to
18 remand is granted.
19 II. LEGAL STANDARD
20 A defendant may remove a civil action from state court to federal court if original
21 jurisdiction would have existed at the time the complaint was filed. See 28 U.S.C. § 1441(a). If
22 the case stated by the initial pleading was not removable, a defendant may remove within thirty
23 days of receipt of an amended pleading, motion, order, or other paper that renders the action
24 removable. See U.S.C. § 1446 (b)(3). A case may not be removed on the basis of diversity
25 jurisdiction, however, “more than 1 year after the commencement of the action, unless the
26 district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from
27 removing the action. See 28 U.S.C. § 1446(c)(1). This one-year outside time bar for removal
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1 does not apply to cases removed under CAFA. See 28 U.S.C. § 1543(b).
2 Federal courts are vested with “original jurisdiction of all civil actions arising under the
3 Constitution, laws, or treaties of the United States.” 28 U.S.C. §1331. To determine whether a
4 claim or cause of action arises under federal law, the face of a well-pleaded complaint is
5 considered. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983).
6 Nevertheless, the United States Supreme Court recognizes that “in certain cases federal question
7 jurisdiction will lie over state-law claims that implicate significant federal issues.” Grable &
8 Sons Metal Prod. Inc. v. Darue Eng.’g & Mfg., 545 U.S. 308, 312 (2005), reh’g den. The
9 exercise of jurisdiction in such cases reflects the “commonsense notion that a federal court ought
10 to be able to hear claims recognized under state law that nevertheless turn on substantial

11 questions of federal law.” Id. To exercise jurisdiction, the state law claim must “necessarily

12 raise a stated federal issue, actually disputed and substantial,” and the federal forum must
13 entertain the question “without disturbing any congressionally approved balance of federal and
14 state responsibilities.” Id. at 314. A federal claim is substantial if federal issues are essential to
15 the claims or there is great federal interest in resolving the issue. Glanton v. Harrah's Entm't,
16 Inc., 297 F. App'x 685, 686 (9th Cir. 2008). A substantial federal question also exists where the
17 construction of a federal statute will be decisive. Potter v. Hughes, 546 F.3d 1051, 1065 (9th
18 Cir. 2008) (citing Grable, 545 U.S. at 315).
19 Under CAFA, removal is proper in a “mass action” where (1) the amount in controversy
20 exceeds five million dollars; (2) there is minimal diversity, where at least one plaintiff is diverse
21 from one defendant; (3) the monetary claims of 100 or more plaintiffs are proposed to be tried
22 jointly on the grounds that the plaintiffs’ claims involve common questions of law or fact; and
23 (4) at least one plaintiff’s claim exceeds $75,000. See 28 U.S.C. § 1332(d).
24 “[R]emoval statutes are strictly construed against removal.” Luther v. Countrywide
25 Homes Loans Servicing, LP, 5533 F.3d 1031, 1034 (9th Cir. 2008). “Federal jurisdiction must
26 be rejected if there is any doubt as to the right of removal in the first instance,” such that courts
27 must resolve all doubts as to removability in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564,
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1 566 (9th Cir. 1992). The burden of establishing that federal jurisdiction exists is on the party
2 seeking removal. See id. at 566-67.
3 III. DISCUSSION
4 A. Removal Under CAFA
5 Plaintiffs primarily argue that there is no “mass action” because they did not explicitly
6 request a joint trial of 100 or more claims in their petition for coordination. Defendants argue the
7 petition does fall within the CAFA statute, as it requests a “coordination trial judge,” and refers
8 to “inconsistent. . . judgments,” suggesting an implicit request for a joint trial. As discussed in
9 Posey, this argument in unpersuasive. CAFA specifies that claims “consolidated or coordinated
10 solely for pretrial proceedings” do not qualify as “mass actions.” 28 U.S.C. §

11 1332(d)(11)(B)(ii)(IV). The Ninth Circuit has refused to “entertain the notion that Congress

12 intended to allow courts to override the considered legislative limitations on the ‘mass action’
13 concept.” Tanoh v. Dow Chem. Co., 561 F.3d 945, 954 (9th Cir. 2009). Plaintiffs’ petition is
14 devoid of a specific request for a joint trial, rather focusing on the need for coordination to
15 reduce “duplicative discovery, waste of judicial resources, and possible inconsistent judicial
16 rulings on legal issues.” The petition will not be construed as a functional request for a joint
17 trial. See Rice v. McKesson Corp., 12-05949, 2013 WL 97738, *2 (N.D. Cal. Jan. 13, 2013).
18 Defendants nevertheless argue the Seventh Circuit opinion in In re Abbott Lab., Inc., 698
19 F.3d 568 (7th Cir. 2012) should instead provide guidance in this case. In that case, as here,
20 plaintiffs proposed coordination “for all purposes,” and stated that “[f]ailure to coordinate these
21 actions will result in the disadvantages of duplicate and inconsistent rulings, orders, or
22 judgments.” Opp. Br. at 3. The Seventh Circuit held that the consolidation petition could be
23 “reasonably construed” as a proposal for a joint trial, thereby creating a removable mass action.
24 In re Abbott Lab., 689 F.3d at 573. This Court, however, has previously declined to adopt this
25 holding of the Seventh Circuit, choosing instead to follow the Ninth Circuit’s more rigid
26 approach in Tanoh. See, e.g. Posey v. McKesson Corp., C 12-05939 RS, 2013 WL 361168 (N.D.
27 Cal. Jan. 29, 2013); Freitas v. McKesson Corp., 12-5948 SC, 2013 WL 685200 (N.D. Cal. Feb.
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1 25, 2013). “Plaintiffs’ separate state court actions may, of course, become removable at [some]
2 later point if plaintiffs seek to join the claims for trial.” Tanoh, 561 F.3d at 956. Unless and until
3 plaintiffs make such a request, these cases do not constitute a mass action and may not be
4 removed under CAFA.
5 B. Federal Question Jurisdiction
6 Defendants contend that plaintiffs’ claim is based on the generic drug defendants’ failure
7 to perform a statutory duty created under federal law, and the complaint therefore raises
8 substantial and disputed issues of federal law. They note the complaint invokes defendants’
9 alleged “failure to comply with federal standards and requirements” in support of all but one of
10 their twenty-two causes of action. Opp. Br. at 5. Plaintiffs contend, however, that federal law is

11 only implicated as a response to a federal preemption affirmative defense, not because it forms

12 the basis for the underlying cause of action on the face of the complaint. Rather, plaintiffs say,
13 the complaint is based on the generic drug defendants’ breach of the state law duty to provide an
14 adequate warning.
15 Defendants rely on Bowdrie v. Sun Pharmaceutaical. Indus. Ltd., 2012 WL 5465994
16 (E.D.N.Y. Nov. 9, 2012), in support of removal. In Bowdrie, plaintiffs pled several state law
17 causes of action. Id. at *1. In removing, defendants argued that plaintiffs’ allegations of, among
18 others, a violation of the “federal duty of sameness” subjected the complaint to federal subject
19 matter jurisdiction. In moving to remand, plaintiffs asserted that their use of the “federal duty of
20 sameness” as a standard in their state law causes of action was not sufficiently substantial to
21 confer jurisdiction. Id. at *3. The federal district court in New York concluded that removal
22 was proper, as the federal issue went beyond “simply incorporating a federal standard into a state
23 law cause of action.” Id. at *4. Defendants contend that, as in Bowdrie, the federal issues here
24 go beyond simply “importing a standard” from the FDCA, and that Merrell Dow
25 Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986) does not, therefore, foreclose the
26 possibility that plaintiffs’ state law claims raise substantial federal questions.1 Rather, they posit,
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In Merrell Dow, the Supreme Court held that a violation of a federal statute for which Congress
28 has determined no private right of right of enforcement exists does not state a claim “arising
NO. CV 12-05945 RS
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1 plaintiffs’ claims cannot be resolved without addressing the scope of defendants’ duties under
2 federal law. Unlike in Bowdrie, however, plaintiffs’ complaint refers to “federal standards and
3 requirements” in a passing manner. Indeed, the federal standard at issue is never identified
4 within the claims themselves. As a result, the import of the federal law to the determination of
5 the state law claim is unclear.
6 Defendants further argue the federal questions raised are particularly significant in light
7 of the Supreme Court’s holding in Pliva, Inc. v. Mensing, 131 S.Ct. 2567; 2011 U.S. LEXIS
8 4793 (2011) that federal law preempts claims based on alleged failure to warn about the risks of
9 generic medications. Plaintiffs, on the other hand, contend reliance on Mensing is inappropriate,
10 as that case did not involve distributors, such as McKesson, but rather generic drug

11 manufacturers. As federal law does not prohibit a distributor from complying with its duties

12 under state law, plaintiffs argue their state law claims cannot be preempted. As a preemption
13 defense does not appear on the face of the complaint, it need not be determined whether federal
14 law indeed preempts plaintiffs’ state law claims of a failure to provide an adequate warning.
15 This potential defense cannot provide grounds for removal.
16 As “removal statutes are strictly construed against removal,” and the import of federal
17 law to the determination of the state law causes of action remains at best uncertain, removal is
18 not appropriate under federal question jurisdiction. Luther v. Countrywide Homes Loans
19 Servicing, LP, 5533 F.3d 1031, 1034 (9th Cir. 2008).
20 IV. CONCLUSION
21 This case does not constitute a mass action under CAFA and is not removable on that
22 basis. Defendants have not met their burden to show that plaintiffs’ state law claims turn on a
23 substantial question of federal law present on the face of the complaint. Removal is therefore not
24 appropriate under federal question jurisdiction. This Court, therefore, lacks removal jurisdiction
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under” the Constitution, laws, or treaties of the United States” within the meaning of 28 U.S.C. §
27 1331. Removal of the action against the manufacturer and distributor of a drug under the FDCA
was therefore improper. 478 U.S. 804.
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1 over this case, and it must be remanded to the Superior Court of California for the County of San
2 Francisco.
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4 IT IS SO ORDERED.
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6 Dated: 3/25/13
RICHARD SEEBORG
7 UNITED STATES DISTRICT JUDGE
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Brandle remand

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