Violet Rappuchi et al v. Johnson & Johnson et al

Filing 22

MINUTES (IN CHAMBERS) Order (1) DENYING AS MOOT Defendants' Motion to Stay (Doc. No.11); (2) GRANTING Plaintiffs' Motion to Remand (Doc. No. 19); (3) REMANDING the Action to the Superior Court of California, County of Los Angeles; and (4) V ACATING the November 17, 2014, Hearing (IN CHAMBERS) by Judge Jesus G. Bernal, re: Motion to Stay Case 11 ; Motion to Remand Case to State Court 19 . Case Remanded to Superior Court of California, County of Los Angeles;. MD JS-6. Case Terminated. (dml)

JS -6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 14-7392 JGB (SPx)

Date November 13, 2014

Title Violet Rappuchi, et al. v. Johnson & Johnson, et al.

Present: The Honorable

JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:  Order (1) DENYING AS MOOT Defendants’ Motion to Stay (Doc. No.
11); (2) GRANTING Plaintiffs’ Motion to Remand (Doc. No. 19); (3)
REMANDING the Action to the Superior Court of California, County of
Los Angeles; and (4) VACATING the November 17, 2014, Hearing (IN
CHAMBERS)
Before the Court are Defendants’ Motion to Stay (Doc. No. 11) and Plaintiffs’ Motion to
Remand (Doc. No. 19). The Court finds these matters appropriate for resolution without a
hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers timely filed in support
of and in opposition to the motions, the Court GRANTS Plaintiffs’ Motion to Remand and
DENIES AS MOOT Defendants’ Motion to Stay. The November 17, 2014, hearing on the
motions is VACATED.
I. BACKGROUND
On February 13, 2014, ninety-four individual Plaintiffs filed a complaint in state court
against Defendants Johnson & Johnson, Ethicon, Inc., Ethicon, LLC, and Does 1 through 500,
inclusive (collectively, “Defendants”). (“Compl.,” Decl. of Joshua J. Wes, Doc. No. 2-1, Ex. A).
The Complaint alleges that Plaintiffs suffered a variety of injuries from the surgical implantation
of pelvic mesh devices designed, tested, manufactured, marketed, sold, and distributed by
Defendants. (Compl. ¶¶ 1, 138-75).
On April 16, 2014, Defendants removed the action to this Court on the basis of diversity
jurisdiction. (Not. of Removal ¶ 4, Doc. No. 1). On June 18, 2014, the Court remanded the
action to the Los Angeles County Superior Court, finding that there was not complete diversity
among Plaintiffs and Defendants and thus the Court lacked diversity jurisdiction over this action,

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pursuant to 28 U.S.C. § 1332. See Violet Rappuchi, et al. v. Johnson & Johnson, et al., CV 142916 JGB (SPx), slip op. at 3, 8 (C.D. Cal. June 18, 2014).
On August 22, 2014, Plaintiffs filed a Petition for Coordination, requesting that the
California Superior Court consider coordination of this action with other similar actions.
(“Petition,” Defs.’ Mot. to Stay, Doc. No. 11-3, Ex. B). Specifically, the Petition requested the
coordination of this action with three other California Superior Court cases: Isabel Vasquez, et
al. v. Johnson & Johnson, et al., Case No. BC536448; Maria Baron, et al. v. Johnson & Johnson,
et al., Case No. 30-2014-00706561-CU-PL-CXC; and Lourdes Heredia, et al. v. Johnson &
Johnson, et al., Case No. 30-2014-00706619-CU-PL-CXC. (Petition at 4-5). Plaintiffs sought
coordination pursuant to California Code of Civil Procedure § 404 and California Rules of Court
3.521, et seq. (Petition at 1). Defendants were served with the Petition on August 26, 2014.
(Decl. of Joshua J. Wes ¶ 4, Doc. No. 2).
On September 22, 2014, Defendants again removed this action asserting federal court
jurisdiction pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). (Not. of
Removal ¶¶ 9, 26, Doc. No. 1). Defendants also removed the three related actions from
California Superior Court; those cases were also assigned to this Court. See Isabel Vasquez, et
al. v. Johnson & Johnson, et al., CV 14-7391 JGB (SPx); Lourdes Heredia, et al. v. Johnson &
Johnson, et al., SACV 14-1530 JGB (SPx); Maria Baron, et al. v. Johnson & Johnson, et al.,
SACV 14-1531 JGB (SPx).
On October 3, 2014, Defendants filed a Motion to Stay this case, pending disposition of
the Ninth Circuit’s en banc proceedings in Romo v. Teva Pharmaceuticals USA, Inc., No. 1356310. (“MTS” at 1, Doc. No. 11). Plaintiffs opposed on October 9, 2014. (“MTS Opp’n,”
Doc. No. 16). Defendants filed their Reply on October 16, 2014. (“MTS Reply,” Doc. No. 18).
On October 17, 2014, Plaintiffs filed a Motion to Remand this case to state court,
contending that removal pursuant to CAFA is improper. (“MTR,” Doc. No. 19). On October 27,
2014, Defendants filed an Opposition to the Motion to Remand. (“MTR Opp’n,” Doc. No. 20).
Plaintiffs replied on November 3, 2014. (“MTR Reply,” Doc. No. 21).
II. LEGAL STANDARD
A. Stay
The United States Supreme Court has held that a court has discretion to stay an action as
part of its efforts to efficiently manage the cases on its docket. See Landis v. N. Am. Co., 299
U.S. 248, 254-55 (1936) (“[T]he power to stay proceedings is incidental to the power inherent in
every court to control the disposition of the causes on its docket with economy of time and effort
for itself, for counsel, and for litigants.”); Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360
(C.D. Cal. 1997) (“Whether or not to grant a stay is within the court’s discretion and it is
appropriate when it serves the interests of judicial economy and efficiency.”); Luu v. Allstate
Ins. Co., No. 5:11-cv-01523 EJD, 2011 WL 3360040, at *1 (N.D. Cal. Aug. 2, 2011). When
considering whether to grant a stay, a court properly assesses the competing interests involved,
including any harm that might result from staying a case, any hardship that a party might suffer if
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the stay is denied, and whether a stay would serve to simplify “the issues, proof, and questions of
law.” See CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962).
B. Remand
The Class Action Fairness Act of 2005 (“CAFA”) grants the district courts original
jurisdiction over “mass actions.” See 28 U.S.C. § 1332(d)(11)(A). A “mass action” is “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). However, a mass action may include only those plaintiffs who are diverse
from defendants and whose claims involve over $75,000 in controversy. Id.; 28 U.S.C. §
1332(a). Moreover, a mass action does not include cases in which “the claims have been
consolidated or coordinated solely for pretrial proceedings.” 28 U.S.C. § 1332(d)(11)(B)(ii)(IV).
“[T]he general principles of removal jurisdiction apply in CAFA cases.” Washington v.
Chimei Innolux Corp., 659 F.3d 842, 847 (9th Cir. 2011). Thus “the burden of establishing
removal jurisdiction remains . . . on the proponent of federal jurisdiction.” Abrego Abrego, 443
F.3d at 685. Removal jurisdiction should be strictly construed in favor of remand to protect the
jurisdiction of state courts. See Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir.
2005) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941)). “Federal
jurisdiction must be rejected if there is any doubt as to the right of removal.” Gaus v. Miles, 980
F.2d 564, 566 (9th Cir. 1992) (internal citation omitted). “Th[is] ‘strong presumption’ against
removal jurisdiction means that the defendant always has the burden of establishing that removal
is proper.” Id. (internal citations omitted).
III. DISCUSSION
A. Order of the Motions
On June 18, 2014, this Court explained that courts properly consider subject matter
jurisdiction before deciding other issues, such as the propriety of staying a case. See Violet
Rappuchi, et al. v. Johnson & Johnson, et al., CV 14-2916 JGB (SPx), slip op. at 3 (C.D. Cal.
June 18, 2014). The Court will briefly reiterate its reasoning here.
The Ninth Circuit has made clear that “federal courts normally must resolve questions of
subject matter jurisdiction before reaching other threshold issues.” Potter v. Hughes, 546 F.3d
1051, 1061 (9th Cir. 2008). More specifically, “[o]nly where the other issue itself creates the
jurisdictional issue” or “resolution of the issue is clear while the jurisdictional issue is difficult”
may a court “proceed without confirming jurisdiction.” Id. In view of the binding precedent
currently in existence in this circuit, the Court does not consider the jurisdictional issue in this
action to be particularly difficult, and the Court should therefore begin by considering Plaintiffs’
Motion to Remand. Numerous courts in this circuit have decided to consider the issue of remand
prior to a request to stay in order to address the jurisdictional issue first. See DeKalb v. C.R.
Bard, Inc., No. CV 13-6308 DMG (PJWx), Doc. No. 30 (C.D. Cal. Oct. 8, 2013); Perry v. Luu,
No. 1:13-cv-729, 2013 WL 3354446, at *3 (E.D. Cal. July 3, 2013) (addressing motion to

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remand before motion to stay pending determination by JPML in pelvic mesh case); Goodwin v.
Kojian, No. SACV 13-325, 2013 WL 1528966, at *2 (C.D. Cal. Apr. 12, 2013) (same).
B. Remand
Defendant removed this case as a mass action, pursuant to this Court’s CAFA jurisdiction
under 28 U.S.C. § 1332(d)(11). Defendant argues that “CAFA provides federal jurisdiction over
this case because Plaintiffs have petitioned for . . . coordination of this and three other related
cases on the ground that their claims involve common questions of law or fact.” (MTR Opp’n at
4-5. In contrast, Plaintiffs seek to remand, arguing that the Court lacks subject matter
jurisdiction over this action because Plaintiffs have sought to coordinate the cases “solely for
pretrial proceedings,” 28 U.S.C. § 1332(d)(11)(B)(ii), which excepts the cases from removal as a
mass action. (MTR at 1).
In Tanoh v. Dow Chemical Co., 561 F.3d 945, 952-53 (9th Cir. 2009), the Ninth Circuit
rejected the defendant’s attempts to remove seven individual state court actions that each
involved fewer than 100 plaintiffs. The panel explained that CAFA’s language was clear that
removal is not appropriate where “neither the parties nor the trial court has proposed
consolidating the actions for trial.” Id. at 953. In other words, mass actions include “only
actions in which the trial itself would address the claims of at least one hundred plaintiffs.” Id. at
954.
In their Petition for Coordination, Plaintiffs sought coordination of the four related cases
only for pretrial purposes. Plaintiffs’ Petition does not request a joint trial; instead it suggests
consolidation only for the purposes of “pretrial motion practice, written discovery, and common
depositions of both lay and expert witnesses.” (Petition at 7). Therefore, these four related cases
fall within the explicit exception for “claims that have been consolidated or coordinated solely
for pretrial proceedings,” which was carved out by Congress. See 28 U.S.C. §
1332(d)(11)(B)(ii)(IV). Therefore, pursuant to 28 U.S.C. § 1332(d)(11) and the Ninth Circuit’s
opinion in Tanoh, 561 F.3d at 952-53, the Court lacks CAFA subject matter jurisdiction over this
case. Moreover, on analogous facts, other courts in this district have similarly held that removal
is inappropriate and that remand is thus required. See, e.g., Heller, et al. v. AstraZeneca LP, et
al., No. LA CV 14-04170 JAK (SHz), slip op. at 2 (C.D. Cal. July 2, 2014) (collecting Central
District cases remanding to California court).
Accordingly, the Court remands this case to California Superior Court.
C. Stay
Defendant argues that this Court should stay its decision on whether removal of this case
was appropriate until the Ninth Circuit releases its decision in an appeal addressing whether mass
action jurisdiction is triggered by the coordination of cases in California Superior Court pursuant
to California Code of Civil Procedure § 404. (MTS at 1).
In Romo v. Teva Pharmaceuticals USA, Inc., 731 F.3d 918, 924 (9th Cir. 2013), a three
judge panel of the Ninth Circuit examined a petition to coordinate cases pursuant to California
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Code of Civil Procedure § 404 and determined that “requests for coordination under this
California procedural rule were not the equivalent of a request for a joint trial.” Therefore, the
panel affirmed the district court’s decision to remand the case to state court. Id. The Ninth
Circuit’s opinion highlighted the fact that “the plaintiffs’ petition for coordination stopped far
short of proposing a joint trial.” Id. at 922. However, following the panel’s decision, the Ninth
Circuit granted rehearing en banc. See Romo v. Teva Pharmaceuticals USA, Inc., 742 F.3d 909,
909 (9th Cir. 2014). The Ninth Circuit heard oral argument on June 19, 2014, but has not yet
issued an opinion. (MTS at 1).
Defendant argues that the Court should stay this case because the Ninth Circuit might
reverse the panel’s Romo decision. (MTS at 1). However, until the Ninth Circuit issues such a
reversal, this Court must follow existing precedent, including Tanoh. When faced with this same
question, several federal courts in this district refused to stay their cases and instead remanded to
state court. See, e.g., Golden, et al. v. AstraZeneca Pharm. LP, et al, No. CV 14-04115 BRO
(AGRx), slip op. at 5 (C.D. Cal. June 9, 2014) (explaining that “Tanoh remains the binding
precedent. And the Court is unwilling to wait and see whether that will change once the en banc
decision in Romo is issued.”); Gilbert, et al. v. AstraZeneca Pharm. LP, et al., No. CV 14-4012JFW (JPRx), slip op. at 2 (C.D. Cal. June 5, 2014) (“The Court declines to stay this action on the
mere chance that the Ninth Circuit will reverse its earlier precedent when it rules en banc in
Romo . . . .”).
Accordingly, pursuant to currently existing precedent, the Court lacks subject matter
jurisdiction and must remand the case to California Superior Court. Defendant’s Motion to Stay
is thus rendered moot.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion to Remand, DENIES
AS MOOT Defendants’ Motion to Stay, and REMANDS this action to the Los Angeles County
Superior Court.
IT IS SO ORDERED.

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