Judith Romo, et al v. Teva Pharmaceuticals USA, Inc.

Filing

FILED OPINION (RONALD M. GOULD, JOHNNIE B. RAWLINSON and IVAN L.R. LEMELLE) AFFIRMED. Judge: RMG Dissenting, Judge: JBR Authoring, FILED AND ENTERED JUDGMENT. [8794252]

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FILED
FOR PUBLICATION
UNITED STATES COURT OF APPEALS

SEP 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUDITH ROMO; VINCENT TALDONE;
ROBIN TAYLER; MARGARET
TAYLOR; RANDY TAYLOR; RAY
TEETS; LAWRENCE TELLS;
KATHRYN TEMCHACK; CHARLES
TERRY; VERONICA TERRY;
ROBERTA THORNE; MARGARET
TIVIS; LINDA TODD; DELORES
TOOHEY; DEBRA TOURVILLE; DENA
TSOUALS; ALLEN TURNER;
CAROLYN TURNER; WANDA
TURNER; STARLET TYRONE;
GLORIA UNDERWOOD; HENRY
UNDERWOOD; JANICE VANISON;
WILLIAM VERHEYEN; CHARLES
VILDIBILL; SHARON WALLGREN;
PAM WALSH; SHARON WALSH;
KEESHA WARRIOR; LATANGA
WASHINGTON; DARLENE WATT;
JAMES WEISS; WESLEY WELBORNE,
III; DEBRA WHEELER; MARSHA
WHITT; CAROLYN WHYNO; CECILIA
WILCKENS; SANDRA WILEMON;
STELLA WILKERSON-CLARK;
JOANN WILLIAMS; JOYCE
WILLIAMS; ROSE WILLIAMS;
SHANTAS WILLIAMS; MARY
WILSON; ROSE WILSON; PATSY
WINZEY; JIMMIE WISE; RUTH
WOLFSON; JUANITA WOODSON;
LYNNE WYSOCKY, single individuals,

No. 13-56310
D.C. No. 5:12-cv-02036-PSG-E

OPINION

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Plaintiffs - Appellees,
v.
TEVA PHARMACEUTICALS USA,
INC.,
Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted August 30, 2013
Pasadena, California
Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.*
Opinion by Judge Rawlinson
RAWLINSON, Circuit Judge:
This case presents the issue of whether removal was proper under the “mass
action” provision of the Class Action Fairness Act of 2005 (CAFA), Pub. L. No.
109-2, 119 Stat. 4 (2005), when plaintiffs moved for coordination pursuant to
California Code of Civil Procedure section 404. CAFA authorizes federal removal
for mass actions when “monetary relief claims of 100 or more persons are

*

The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
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proposed to be tried jointly on the ground that the plaintiffs’ claims involve
common questions of law or fact. . . .” 28 U.S.C. § 1332(d)(11)(B)(i). Because we
conclude that this CAFA jurisdictional requirement was not met under the totality
of the circumstances in this case, we affirm the district court’s remand order.
I
Defendant-Appellant Teva Pharmaceuticals USA, Inc. (Teva) appeals the
district court’s order remanding this case to state court. This case was one of
twenty-six pending before the district court alleging injuries related to the ingestion
of propoxyphene, an ingredient found in the Darvocet and Darvon pain
medications, as well as in their generic brand counterparts. There are additional
propoxyphene cases pending in multidistrict litigation in the Eastern District of
Kentucky. See In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 780 F.
Supp. 2d 1379 (E.D. Ky. 2011).
Propoxyphene is a pain reliever that was used in the United States to treat
mild to moderate pain from 1957 through November, 2010, when drugs containing
propoxyphene were taken off the market because of the Food & Drug
Administration’s safety concerns. Teva held the rights to the generic formulary of
Darvocet and Darvon, and Plaintiffs allege that Teva was involved in all aspects of
the creation, distribution, and sale of generic propoxyphene products.
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To date, more than forty actions have been filed in California state courts
regarding products containing propoxyphene. On October 23, 2012, a group of
attorneys responsible for many of the propoxyphene actions filed a petition asking
the California Judicial Council to establish a coordinated proceeding for all
California propoxyphene actions pursuant to California Code of Civil Procedure
section 404. Section 404.1 provides:
Coordination of civil actions sharing a common question
of fact or law is appropriate if one judge hearing all of
the actions for all purposes in a selected site or sites will
promote the ends of justice taking into account whether
the common question of fact or law is predominating and
significant to the litigation; the convenience of parties,
witnesses, and counsel; the relative development of the
actions and the work product of counsel; the efficient
utilization of judicial facilities and manpower; the
calendar of the courts; the disadvantages of duplicative
and inconsistent rulings, orders, or judgments; and, the
likelihood of settlement of the actions without further
litigation should coordination be denied.
After Plaintiffs’ petition for coordination was filed, Teva removed the case to
federal district court under CAFA’s mass action provision.
CAFA provides federal district courts with original jurisdiction over “mass
actions” if the actions meet all of the statutory requirements. CAFA defines a mass
action as:

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any civil action . . . in which monetary relief claims of
100 or more persons are proposed to be tried jointly on
the ground that the plaintiffs’ claims involve common
questions of law or fact, . . .
28 U.S.C. § 1332(d)(11)(B)(i) (emphasis added). The only disputed issue in this
case is whether Plaintiffs’ petition for coordination constitutes a proposal to be
tried jointly under CAFA.
The district court found that there was no federal jurisdiction under CAFA
because Plaintiffs’ petition for coordination did not constitute a proposal to try the
cases jointly, and remanded the case back to state court. The district court
distinguished this case from the Seventh Circuit’s decision in In re Abbott
Laboratories, Inc., 698 F.3d 568 (7th Cir. 2012), explaining that Plaintiffs’ petition
for coordination differed from the Plaintiffs’ consolidation request in Abbott
because Plaintiffs’ petition focused on pretrial matters while the Plaintiffs’
consolidation request in Abbott specifically sought consolidation “through trial.”
Defendants sought permission to appeal the district court’s remand order,
which we granted on July 26, 2013. We review the district court’s remand order
de novo. See Abrego Abrego v. The Dow Chemical Co., 443 F.3d at 676, 679 (9th
Cir. 2006).
II

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The statutory issue for us to decide is whether the petition seeking
coordination of the California propoxyphene actions was a proposal in substance
for those actions to be tried jointly. This is a question of first impression in our
circuit, as it was for the Seventh Circuit in Abbott.
We start from the well-established premise that the removal statutes are to be
strictly construed. See Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir.
2013). A corollary precept is that we apply a presumption against removal and
construe any uncertainty as to removability in favor of remand. See id.; see also
Tanoh v. Dow Chemical Corp., 561 F.3d 945, 953 (9th Cir. 2009); Abrego Abrego
443 F.3d at 685. We have correctly observed that CAFA’s mass action provision
is “fairly narrow,” Tanoh, 561 F.3d at 953, given that a qualifying mass action will
only be present if there is an aggregate amount in controversy of five million
dollars or more, at least one plaintiff who is a citizen of a state or foreign state
different from that of any defendant, and “monetary relief claims of 100 or more
persons [that] are proposed to be tried jointly.” Id.; see also 28 U.S.C. § 1332(d).
We expressly observed in Tanoh that CAFA “includ[es] only actions in which the
trial itself would address the claims of at least one hundred plaintiffs” and excludes
“any civil action in which . . . (IV) the claims have been consolidated or
coordinated solely for pretrial proceedings.” 561 F.3d at 954; 28 U.S.C. §
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1332(d)(11)(B)(ii)(IV). And Tanoh makes clear, consistent with the plain
language of CAFA, that the proposal to try claims jointly must come from the
plaintiffs. 561 F.3d at 953-54. Further, if the statutory requirements under CAFA
are not met, Tanoh rejects the idea that we can avoid these statutory terms merely
by recourse to general statements in CAFA’s legislative history, or to the theory
that plaintiffs should not be able to “game” jurisdictional statutes to remain in state
court. Id. at 954.
Tanoh also instructs that plaintiffs are the “masters of their complaint,” and
do not propose a joint trial simply by structuring their complaints so as to avoid the
one hundred-plaintiff threshold. 561 F.3d at 953, 956; see also Anderson v. Bayer
Corp., 610 F.3d 390, 393 (7th Cir. 2010); Scimone, 720 F.3d at 883-84. Under this

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view, plaintiffs can structure actions in cases involving more than one hundred
potential claimants so as to avoid federal jurisdiction under CAFA.1
Plaintiffs argue, and the district court agreed, that their analogous petition
for coordination was not a proposal to try the cases jointly. We also agree.
California Code of Civil Procedure section 404 allows the coordination of “all of
the actions for all purposes.” However, the plaintiffs’ petition for coordination
stopped far short of proposing a joint trial. This fact is important because, as
discussed, both the Supreme Court and our court recognize that the plaintiff is, and
should be, in control of selection of the litigation forum. See Standard Fire Ins.
Co. v. Knowles, 133 S. Ct. 1345, 1350 (2013) (reiterating in the CAFA context,
that plaintiffs are the “masters of their complaints”); see also Tanoh, 561 F.3d at

1

Amicus curiae Chamber of Commerce of the U.S.A. and amicus curiae
PhRMA essentially argue that we should revisit Tanoh and that it has lost its
precedential value, urging that plaintiffs should not be able to structure their
complaints to avoid federal jurisdiction in light of the purposes of CAFA to curb
class action and mass action abuses that have occurred in state courts. We reject
this argument because we agree with the reasoning of Tanoh, because as a threejudge panel we do not have authority to overrule a prior circuit precedent, and
because the Chamber of Commerce’s position would put us at odds with the
Seventh Circuit, which cited Tanoh approvingly in Abbott, and the Eleventh
Circuit, which did so in Scimone. See Abbott, 698 F.3d at 572; Scimone, 720 F.3d
at 884.

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953 (referencing “the well-established rule that plaintiffs as masters of their
complaint, may choose their forum by selecting state over federal court . . .”).
Plaintiffs asked for coordination under section 404, and submitted a
Memorandum of Points and Authorities in support of the petition for coordination.
We now turn to that memorandum to discern whether plaintiffs proposed that the
claims of 100 or more persons were “to be tried jointly.” 28 U.S.C. §
1332(d)(11)(B)(i).
On page 6 of the Memorandum of Points and Authorities, plaintiffs gave the
following explanation for seeking coordination:
Petitioners’ counsel anticipates that the actions will . . .
involve duplicative requests for the same defendant
witness depositions and the same documents related to
development, manufacturing, testing, marketing, and sale
of the Darvocet Product. Absent coordination of these
actions by a single judge, there is a significant likelihood
of duplicative discovery, waste of judicial resources and
possible inconsistent judicial rulings on legal issues.
One would be hard pressed to parse a proposal for a joint trial from this
language. Rather, the obvious focus was on pretrial proceedings, i.e., discovery
matters.
On page 7 of the memorandum, plaintiffs informed the court that
coordination was also sought because “[u]se of committees and standardized

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discovery in a coordinated setting will expedite resolutions of these cases, avoid
inconsistent results, and assist in alleviating onerous burdens on the courts as well
as the parties.” Again, we see emphasis on pretrial proceedings with no mention of
a joint trial.
On page 8, the plaintiffs urged coordination on the following bases:
One judge hearing all of the actions for all purposes in a
selected site or sites will promote the ends of justice;
Common questions of fact or law are predominating and
significant to the litigation; Coordination may serve the
convenience of parties, witnesses and counsel the relative
development of the actions and the work product of
counsel; Coordination may facilitate the efficient
utilization of judicial facilities and manpower;
Coordination may enhance the orderly calendar of the
courts; Without coordination, the parties may suffer from
disadvantages caused by duplicative and inconsistent
rulings, orders or judgments . . .
(Emphases added).
Isolation of the phrases “for all purposes,” “inconsistent judgments,”and
“conflicting determinations of liability” to support a conclusion that the plaintiffs
sought a joint trial completely ignores all references to discovery, including on the
same page containing the reference to liability, where Plaintiffs stated: “[I]n light
of the similarity of the actions, there will be duplicate discovery obligations upon
the common defendants unless coordination is ordered. Coordination before

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initiation of discovery in any of the cases will eliminate waste of resources and will
facilitate economy. . . .” (Emphases added). As we read the plaintiffs’ petition for
coordination, it is quite a stretch to discern a request for joint trial when the clear
focus of the petition is on pretrial matters. Reliance on nine words in the petition
to the exclusion of all else is inconsistent with the principle that any doubt about
federal jurisdiction be resolved in favor of remand. See Scimone, 720 F.3d at 882;
see also Abrego Abrego, 443 F.3d at 685. In particular, Defendants’ reliance on
the plaintiffs’ reference to inconsistent judgments is on shaky ground because
judgments may be rendered outside the confines of a trial. Default judgments and
summary judgments come readily to mind. See Federal Rules of Civil Procedure
55 and 56 (providing for entry of judgment prior to trial).
Neither are we persuaded that we should reach the same result as the
Seventh Circuit in Abbott. Not only did that case involve a completely different
procedure, consolidation as opposed to coordination, see 698 F.3d at 570, the
plaintiffs’ request in that case explicitly and expressly referenced “consolidation of
the cases through trial and not solely for pretrial proceedings,” thereby removing
any question of the plaintiffs’ intent. Id. at 571 (footnote reference and internal
quotation marks omitted).

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This case also differs from Mississippi ex rel. v. AU Optronics, 701 F.3d 796
(5th Cir. 2012), where the Fifth Circuit concluded that federal jurisdiction existed
under CAFA when the State of Mississippi brought an action under the Mississippi
Consumer Protection Act and the Mississippi Antitrust Act against defendants who
manufactured liquid crystal display panels and harmed consumers by charging
artificially inflated prices. See id. at 798-800. The Fifth Circuit concluded that the
real parties in interest included the State and the individual consumers who
purchased the products. See id. at 802. Because there were more than one hundred
consumer claims at issue in the single lawsuit filed by the State, the Fifth Circuit
held that CAFA conferred jurisdiction upon the federal court over the “mass
action.” Id.
Unlike the AU Optronics case, the plaintiffs here have filed separate
lawsuits, none of which have been initiated by the State, so the rationale articulated
by the Fifth Circuit is inapposite, even were we inclined to adopt it.2

2

Amicus curiae Washington Legal Foundation argues that “joint trial”
includes cases resolved in conjunction with each other, relying on the dictionary
definition of “joint” and the statute’s plain language. We agree that “joint trial”
does not mean everyone sitting in the courtroom at the same time. However, as
made obvious in this opinion, we disagree that mere invocation of the California
coordination provision is sufficient to constitute a proposal for joint trial. Rather,
as we have done here, we look to Plaintiffs’ petition and supporting documents to
determine the extent of Plaintiffs’ request for coordination.
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Finally, we consider the rulings of three different district court judges in this
circuit who have determined that similar requests for coordination under this
California procedural rule were not the equivalent of a request for a joint trial. See
Gutowski v. McKesson Corp., No. C 12-6056 CW, 2013 WL 675540 (N.D. Cal.
Feb. 25, 2013); Posey v. McKesson Corp., No. C 12-05939 RS, 2013 WL 361168
(N.D. Cal. Jan. 29, 2013); Rice v. McKesson Corp., No. C 12-05949 WHA, 2013
WL 97738 (N.D. Cal. Jan. 7, 2013). These eminent California judges were
practitioners in California prior to taking the bench and their decisions, with their
considerable knowledge of California procedural rules, reinforce our view of the
appropriate disposition of this case. We would affirm this fourth California district
court judge’s decision to remand this case to state court.
III

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Because we conclude that Plaintiffs’ petition for coordination was not a
proposal to try the cases jointly, we AFFIRM the district court’s order granting
Plaintiffs’ motion to remand.3

3

We recognize that we have discretion to consider alternative bases for
the exercise of federal jurisdiction, see Nevada v. Bank of America Corporation,
672 F.3d 661, 673 (9th Cir. 2012). We agree with the district court that there is a
lack of federal question jurisdiction because Plaintiffs’ state law claims do not
“aris[e] under the Constitution, laws, or treaties of the United States. Merrell Dow
Pharms., Inc. v. Thompson, 478 U.S. 804, 805, 817 (1986).
We also agree with the district court’s conclusion that complete diversity is
lacking between the parties inasmuch as plaintiff Romo and defendant McKesson
are both California citizens. See Wisc. Dep’t of Corr. v. Schacht, 524 U.S. 381,
388 (1998) (requiring complete diversity of citizenship for federal jurisdiction).

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Counsel Listing
Karin Bohmholdt (argued), Ginger Pigott, Amy Alderfer, Greenberg Traurig, LLP,
Los Angeles, California; Lori G. Cohen, Victoria D. Lockard, Greenberg Traurig,
LLP, Atlanta, Georgia; Elliot H. Scherker, Greenberg Traurig, PA, Miami, Florida,
for Defendant-Appellants.
Stuart B. Esner (argued), Esner, Chang & Boyer, Pasadena, California; Elise R.
Sanguinetti, Khorrami Boucher Sumner, Oakland, California; J. Paul Sizemore,
The Sizemore Law Firm, El Segundo, California; Matthew J. Sill, The Sill Law
Group PLLC, Edmond, Oklahoma, for Plaintiffs-Appellee.
Kate Comerford Todd, Tyler R. Green, National Chamber Litigation Center, Inc.,
Washington, D.C., for Amicus Curiae Chamber of Commerce of the United States.
James M. Spears, Melissa B. Kimmel, PHRMA, Washington, D.C., Attorneys for
Amicus Curiae PHRMA.

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