Vivian Standberry et al v. McKesson Corporation et al

Filing 19

MINUTE ORDER IN CHAMBERS by Judge Dale S. Fischer:, ORDER by Judge Dale S. Fischer remanding case to Los Angeles Superior Court, Case number BC485367 Case Terminated. Made JS-6 (shb)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MEMORANDUM
JS 6
Case No.
Title

CV 12-4787 DSF (SSx)

Date

7/23/12

Vivian Standberry, et al. v. McKesson Corporation, et al.

Present: The
Honorable

DALE S. FISCHER, United States District Judge

Debra Plato
Deputy Clerk

Not Present
Court Reporter

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(In Chambers) Order Remanding Action for Lack of Subject Matter
Jurisdiction

On May 31, 2012, Defendant Astrazeneca Pharmaceuticals LP removed this action
from state court.
Suits filed in state court may be removed to federal court if the federal court would
have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Federal courts are
courts of limited jurisdiction, having subject matter jurisdiction only over matters
authorized by the Constitution and Congress. See, e.g., Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). “The removal statute is strictly construed against
removal jurisdiction, and the burden of establishing federal jurisdiction falls to the party
invoking the statute.” Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). A
removed action must be remanded to state court if the federal court lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c).
Astrazeneca claims that this Court has subject matter jurisdiction on the basis of
diversity, 28 U.S.C. § 1332(a). (Notice of Removal ¶ 1.) Federal courts have diversity
jurisdiction over civil actions in which (1) the amount in controversy exceeds $75,000
and (2) there is complete diversity of citizenship between the opposing parties. 28 U.S.C.
§ 1332(a). Astrazeneca does not dispute that Defendant McKesson Corporation is not
diverse from at least one Plaintiff. (Notice of Removal ¶¶ 2, 5.) However, Astrazeneca
claims that McKesson’s citizenship should be disregarded because it was fraudulently
joined. (Id. ¶¶ 6-10.)
“Fraudulent joinder is a term of art. If the plaintiff fails to state a cause of action
against a resident defendant, and the failure is obvious according to the settled rules of
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MEMORANDUM
JS 6
the state, the joinder of the resident defendant is fraudulent.” McCabe v. Gen. Foods
Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). The fraudulent joinder doctrine requires
courts to disregard the citizenship of defendants when no viable cause of action has been
stated against them, or when evidence presented by the removing party shows that there
is no factual basis for the claims alleged against the defendants. See Morris v. Princess
Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). “There is a presumption against
finding fraudulent joinder, and defendants who assert that plaintiff has fraudulently
joined a party carry a heavy burden of persuasion.” Plute v. Roadway Package Sys., Inc.,
141 F. Supp. 2d 1005, 1008 (N.D. Cal. 2001). “[T]he defendant must demonstrate that
there is no possibility that the plaintiff will be able to establish a cause of action in State
court against the alleged sham defendant.” Good v. Prudential Ins. Co. of Am., 5 F.
Supp. 2d 804, 807 (N.D. Cal. 1998). “[I]f there is a possibility that a state court would
find that the complaint states a cause of action against any of the resident defendants, the
federal court must find that the joinder was proper and remand the case to the state
court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009) (quoting
Tillman v. R.J. Reynolds Tobacco, 340 F.3d 1277, 1279 (11th Cir. 2003)).
The Court concludes that McKesson was not fraudulently joined. Plaintiffs are
suing Defendants involved in the manufacture and distribution of the drug Nexium,
alleging that Defendants downplayed and misrepresented the drug’s health hazards. (See,
e.g., Compl. ¶¶ 8, 16, 27.) Plaintiffs allege that McKesson is a wholesale distributor that
“marketed, sold, and distributed the Nexium which was ingested by the Plaintiffs.” (Id.
¶ 12 (emphasis added).) Astrazeneca has failed to show that “there is no possibility” that
Plaintiffs will be able to state a claim against McKesson. Astrazeneca does not dispute
that McKesson distributed Nexium. Contrary to Astrazeneca’s implication, (Notice of
Removal ¶ 7), that there were many other distributors of Nexium does not prevent
Plaintiffs from stating a legitimate claim.
Astrazeneca also argues that the non-diverse (California-resident) Plaintiffs in the
action were fraudulently “misjoined” in state court, and that their citizenship should
therefore be disregarded. (Notice of Removal ¶¶ 11-24.) The Court need not reach this
issue. Astrazeneca may bring this matter to the attention of the state court. If indeed
joinder of all of Plaintiffs’ claims was improper, as Astrazeneca claims it is,1 then it will
have an opportunity to remove any resulting removable actions. Furthermore, the Court
is not inclined to consider whether joinder was procedurally proper in state court by
examining the federal procedural rules. (See id. ¶ 15 (contending that joinder of
Plaintiffs’ claims was improper under Federal Rule of Civil Procedure 20).)

1

Astrazeneca has filed a motion to sever Plaintiffs’ claims pursuant to Federal Rule of Civil
Procedure 21. (Docket No. 11.)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MEMORANDUM
JS 6
Because Astrazeneca has failed to establish that there was fraudulent joinder, and
that diversity jurisdiction exists, the action is remanded.
IT IS SO ORDERED.

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