Elizabeth DeBay et al v. Pfizer Inc. et al

Filing 32

ORDER GRANTING PLAINTIFFS' MOTION TO REMAND by Judge Cormac J. Carney. Since less than 100 plaintiffs have proposed that their cases be tried jointly, the Court does not have jurisdiction under CAFA's mass action provision and all Lipitor cases presently before this Court must be remanded to state court. Accordingly, Plaintiffs' motion to remand is GRANTED. Case Terminated. Made JS-6. (rrp)

JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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IN RE: PFIZER
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Case No.: SAMC 17-00005-CJC(JPRx)
Case No.: SEE ATTACHED LIST

ORDER GRANTING PLAINTIFFS’
MOTION TO REMAND

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I. INTRODUCTION

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This proceeding involves over 100 cases that were previously filed in California

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state court by thousands of women alleging that use of the drug Lipitor caused them to

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suffer from Type II diabetes. The cases were removed to federal court based on “mass

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action” jurisdiction pursuant to the Class Action Fairness Act (“CAFA”) and then

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consolidated under a master case number for administrative purposes. (See Attached

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List.) Before the Court is Plaintiffs’ consolidated motion to remand the cases back to

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state court on the ground that 100 or more plaintiffs have not proposed that their cases be
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tried jointly as is required for mass action jurisdiction. (Dkt. 8 [Motion, hereinafter

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“Mot.”].) After considering the evidence and the arguments presented by the parties, the

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Court GRANTS Plaintiffs’ motion to remand. Although many plaintiffs have proposed a

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joint trial, 100 plaintiffs have not done so.

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II. BACKGROUND

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In their original complaints filed in California state court, Plaintiffs alleged that

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Lipitor, a prescription drug developed and manufactured by Pfizer, Inc., and marketed

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and distributed by McKesson Corporation, caused them to suffer from Type II diabetes.

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(Id. at 3.) On August 16, 2013, three such plaintiffs filed a petition with the California

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Judicial Council to have their individual cases coordinated in a Joint Council Coordinated

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Proceeding (“JCCP”) pursuant to California Code of Civil Procedure Section 404. (Dkt.

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9 [Declaration of Charles G. Orr, hereinafter “Orr Decl.”] ¶ 2; id. Ex. A.) After

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additional plaintiffs filed similar state court actions, a group of twenty-one plaintiffs from

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eight state court cases, including the three from the original petition, filed an amended

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coordination petition on September 25, 2013. (Id. ¶ 3; id. Ex. B Pt. 1 at 2–10 [hereinafter

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“Am. Pet.”].) The amended petition stated that it was “based upon the criteria codified in

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California Code of Civil Procedure § 404.1. That is, in the LIPITOR® cases sought to be

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coordinated herein:

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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 common questions of fact or law are
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.”
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(Am. Pet. at 6–7 (quoting almost verbatim the requirements of Cal. Civ. Proc. Code

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§ 404.1) (emphasis added).) The amended petition specified that coordination would

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“promote the ends of justice because there are common issues of fact and law, namely the

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adequacy of the . . . LIPITOR® warning labels, and coordination will avoid duplicative

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and inconsistent rulings, orders, and judgments.” (Id. at 8.) It also stated that counsel for

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those twenty-one plaintiffs named in the amended petition “is informed and believes that

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additional LIPITOR® injury cases will be filed within the next weeks. Petitioners will

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seek to join these additional cases via Add-On Petitions.” (Id. at 7.)

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The memorandum of points and authorities supporting the amended petition

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further explained that the cases will “involve duplicative requests for the same defendant

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witness depositions and the same documents related to the development, manufacturing,

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testing, marketing and sale of LIPITOR®. Absent coordination of these actions by a

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single judge, there is a significant likelihood of duplicative discovery, waste of judicial

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resources and possible inconsistent judicial rulings on legal issues.” (Orr Decl. Ex. B Pt.

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1 at 11–19 [hereinafter “MPA”] at 3; see also id. at 7 (“[T]here will be duplicative

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discovery obligations upon the common defendants unless coordination is ordered.

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Coordination before initiation of discovery in any of these cases will eliminate waste of

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resources and will facilitate economy.”).) It reiterated the concern of preserving judicial

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resources and avoiding “duplicative and inconsistent rulings, orders, or judgments.” (Id.

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at 7–8.) It further represented that “issues likely to be raised in this action include issues

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pertaining to liability, allocation of fault and contribution, as well as the same wrongful

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conduct of defendants. Such difficult issues may ultimately be addressed by the

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California Court of Appeal. Coordination is required in order to avoid duplicative efforts

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and inconsistent rulings.” (Id. at 8.) The amended petition was also accompanied by an

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attorney declaration which stated that “[w]ithout coordination, two or more separate

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courts will decide essentially the same issues and may render different rulings on liability

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and other issues.” (Orr Decl. Ex. B. Pt. 1 at 27–32 [hereinafter “Finson Decl.”] ¶ 11.)
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On December 6, 2013, the Judicial Council granted the request for coordination

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and created a JCCP with the special title of “Lipitor Cases,” but only included the three

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cases from the original petition in the JCCP. (Id. ¶ 4; id. Ex. C.) The JCCP was assigned

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to Judge Kenneth R. Freeman of Los Angeles Superior Court. (Id. ¶ 5; id. Ex. D.) On

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January 13, 2014, Judge Freeman entered an order granting an add-on petition whereby

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four plaintiffs in another state court action sought to be added to the JCCP, bringing the

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total number of plaintiffs in the JCCP to seven. (Orr Decl. ¶ 6; id. Ex. E.)

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The next day, Pfizer exercised an automatic peremptory challenge to Judge

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Freeman’s assignment as coordination judge for the JCCP, (id. ¶ 7; id. Ex. F), so the

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JCCP was reassigned to Judge Jane Johnson, (id. ¶ 8; id. Ex. G). Judge Johnson entered

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orders granting add-on petitions filed by two plaintiffs who had been named in the

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amended coordination petition but not included in the initial order creating the JCCP,

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bringing the total number of plaintiffs in the JCCP to nine. (Id. ¶¶ 9–10; id. Exs. H, I.)

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Fifty-three more plaintiffs sought to be added to the JCCP through add-on petitions,

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including fifteen more plaintiffs who had been named in the amended coordination

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petition but not included in the initial order creating the JCCP. (Id. ¶¶ 11–13; id. Exs. J,

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K, L.) These petitions are still pending. Thus, to date only sixty-five plaintiffs have

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sought to be coordinated in the JCCP—nine were actually coordinated, fifty-three still

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have pending petitions, and three more were named in the amended coordination petition

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but have not filed add-on petitions to be coordinated after they were left out of the initial

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order creating the JCCP.

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On February 24, 2014, the parties had their first and only status conference in state

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court before Pfizer started removing the cases to federal court. (Orr Decl. Ex. M.) At the

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conference, counsel for the JCCP plaintiffs (hereinafter “JCCP Counsel”) provided Judge

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Johnson with a chart demonstrating that at that point in time, there were at least fifty-four

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cases concerning similar effects of Lipitor filed in California, which encompassed 1,855
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plaintiffs. (Id. at 5:20–6:4; 6:16–17.) JCCP Counsel explained that they have “had total

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transparency with respect to communications of lawyers both in California and nationally

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who had any interest in or doing anything [sic] litigation involving Lipitor,” (id. at 7:2–

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5), and presented Judge Johnson with a proposed “leadership structure” comprising of an

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executive committee and a steering committee to handle the rapidly-expanding litigation,

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(id. at 7:15–18). JCCP Counsel had also “given every lawyer who’s interested at all in

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participating in the organizational structure and leadership, the opportunity to contact

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[them] and . . . enter their willingness or interest in being part of the leadership structure,”

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and had not turned down a single lawyer who expressed such interest. (Id. at 11:7–17.)

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They further represented that they “know lawyers that are filing the cases,” “know who is

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interested in participating in leadership and who’s not,” and hoped “to get the cases that

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have been filed obviously added on [to the JCCP] as soon as possible.” (Id. at 11:19–21,

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15:22–23.) Counsel for both parties then sought clarification regarding the details of

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coordination, and the following exchange took place:

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MR. KIESEL: And that’s for discovery purposes; that they are
coordinated together for discovery.

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THE COURT: Right.
MR. CHEFFO: Well, would they be sent back?
THE COURT: They can be sent back. They can be sent back for trial.
Yes, they can be sent back.
MR. CHEFFO: So the coordination order is with respect to discovery?

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THE COURT: Everything is sort of bundled here for case
management and discovery. And they can be tried here, but they can
be sent back for trial.

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(Id. at 17:13–23.)

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On March 4, 2014, Judge Johnson signed a proposed order to streamline the

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procedures for adding new cases to the JCCP through additional add-on petitions. (Dkt.

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13-1 [Declaration of Marshall Searcy, hereinafter “Searcy Decl.”] at Ex. C.) The order

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regarding add-on procedures stated that “[a]ll cases filed in California state court against

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Pfizer, Inc. or McKesson Corporation, alleging injuries related to the development of

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Type II diabetes, and seeking damages, injunctive relief, or restitution arising from the

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investigation of Lipitor®, are assigned to the Honorable Jane L. Johnson,” and the

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“parties to such actions, however, are still required to comply with the stipulation or

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notice add-on procedures set forth in this Order.” (Id. at 1.) The order further explained

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that after the parties filed either stipulated or noticed add-on petitions, any party named in

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such a petition would have ten days from the date of service to file a notice of opposition

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to the coordination. (Id. at 3.) If no notice of opposition was filed, the cases identified in

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such add-on petitions would be automatically added to the JCCP. (Id. at 3–4.)

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Beginning on March 12, 2014, Pfizer began removing the state court actions,

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including cases that had not been named in the amended coordination petition or add-on

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petitions, to federal court on the grounds of diversity jurisdiction (fraudulent joinder) and

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mass action jurisdiction pursuant to CAFA. (Orr Decl. ¶ 15; Dkt. 13 [Opposition,

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hereinafter “Opp.”] at 9–10.) Pfizer also requested a stay in federal district court pending

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transfer of the cases to Multi-District Litigation (“MDL”) court in South Carolina. (Id.

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¶ 16.) “While some removed plaintiffs acquiesced in the transfer of their cases to the

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MDL and chose at that time not to seek remand to California state court, many removed

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plaintiffs immediately advised the MDL court that they would be seeking remand to

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California and asked the MDL court to stay their actions pending determination of the

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threshold question of federal subject matter jurisdiction.” (Id.) The MDL court did so,

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(id. Ex. N), and then in June 2014 determined that diversity jurisdiction did not exist, In

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re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prod. Liab. Litig., No. 2:14-

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CV-01810, 2016 WL 7335738, at *6 (D.S.C. Nov. 7, 2016). Because the only remaining
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basis for federal subject matter jurisdiction was CAFA’s mass action provision, and

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because a majority of plaintiffs did not consent to transfer to MDL, the MDL court

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recommended that the Judicial Panel on Multidistrict Litigation remand the cases. (Id. at

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*7–*8.) The cases were then transferred back to this Court. By the last count, Plaintiffs

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have filed more than 140 California state court actions involving 4,800 plaintiffs, which

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have been removed to federal courts in all four districts of California. (Id. at 10.)

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Plaintiffs now ask this Court to remand the cases to state court on the grounds that the

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mass action removal requirements of CAFA are not met. (See generally Mot.)

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III. DISCUSSION

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CAFA provides federal district courts with original jurisdiction over “mass

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actions,” which are defined as “any civil action . . . in which monetary relief claims of

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100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’

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claims involve common questions of law or fact.” 28 U.S.C. § 1332(d) (emphasis

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added). Plaintiffs in a mass action, unlike in a class action, do not seek to represent the

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interests of parties not before the court. Tanoh v. Dow Chem. Co., 561 F.3d 945, 953 (9th

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Cir. 2009). However, a mass action “shall be deemed to be a class action” removable to

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federal court, as long as the rest of CAFA’s jurisdictional requirements, including an

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aggregate amount in controversy above $5 million and minimal diversity, are met. Id.

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“Although CAFA[]extends federal diversity jurisdiction to both class actions and certain

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mass actions, the latter provision is fairly narrow. As noted above, CAFA’s ‘mass

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action’ provision applies only to civil actions in which the ‘monetary relief claims of 100

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or more persons are proposed to be tried jointly.’” Id.

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A. A Proposal for a Joint Trial Was Made

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Plaintiffs’ motion explains that “at the time the amended coordination petition was

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filed, the attorneys who drafted the petition believed they were proposing coordination

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for pretrial proceedings only.”1 (Dkt. 15 [hereinafter “Reply”] at 3n.1.) However,

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Plaintiffs do not seriously challenge Pfizer’s position that the amended coordination

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petition proposed a joint trial, (see generally id.; Mot.). Nor could they.

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As “masters of their complaints,” plaintiffs are permitted to structure actions to

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avoid federal jurisdiction under CAFA. Corber v. Xanodyne Pharm., Inc., 771 F.3d

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1218, 1223 (9th Cir. 2014). But they are “also the masters of their petitions for

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coordination. Stated another way, when we assess whether there has been a proposal for

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joint trial, we hold plaintiffs responsible for what they have said and done.” Id. Here,

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JCCP Counsel requested a joint trial on behalf of the plaintiffs named in the amended

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coordination petition and add-on petitions. The amended petition incorporated the

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language of Section 404.1 and requested coordination “for all purposes.” (Am. Pet. at

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6–7 (emphasis added).) It explained that plaintiffs sought to avoid not only duplicative

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and inconsistent rulings and orders, but also judgments. (Id. at 8.) The accompanying

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memorandum of points and authorities contained considerable language about

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coordination for discovery purposes, (MPA at 3, 7), but again reiterated the need to avoid

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In Romo v. Teva Pharm. USA, Inc., 731 F.3d 918 (9th Cir. 2013), rehearing en banc granted and
decision vacated, 742 F.3d 909 (Feb. 10, 2014), the Ninth Circuit considered whether, as a matter of
first impression, a coordination petition pursuant to California Code of Civil Procedure Section 404
constituted a proposal for a joint trial, and concluded that it did not. Id. at 921–23. Romo was issued the
day before Plaintiffs filed their amended petition. Romo analyzed the coordination petitions and
supporting memorandum of points and authorities and concluded that although the memorandum
encouraged coordination of “all of the actions for all purposes” and sought to avoid “inconsistent
judgments” and “conflicting determinations of liability,” the “obvious focus” of the petition was on
“pretrial proceedings, i.e., discovery matters.” Id. at 922–23. On February 10, 2014, however, the Ninth
Circuit granted rehearing en banc and vacated the decision. Romo v. Teva Pharm. USA, Inc., 742 F.3d
909 (9th Cir. 2014). In Corber v. Xanodyne Pharm., Inc., 771 F.3d 1218 (9th Cir. 2014), described
below, the Ninth Circuit reexamined the coordination petitions in Romo and concluded that they did
propose a joint trial. Id. at 1223.
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“duplicative and inconsistent rulings, orders, or judgments,” (id. at 7–8 (emphasis

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added)). Notably, it explained the need to avoid “duplicative efforts and inconsistent

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rulings” on “issues pertaining to liability, allocation of fault and contribution, as well as

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the same wrongful conduct of defendants” because they might “ultimately be addressed

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by the California Court of Appeal.” (MPA at 8 (emphasis added).) Finally, the

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accompanying attorney declaration expressed the desire to avoid inconsistent “rulings on

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liability and other issues.” (Finson Decl. ¶ 11 (emphasis added).) The amended petition

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clearly stressed a need for coordination beyond pre-trial proceedings.

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The language of the amended petition and supporting documents is substantially

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similar to that in Corber, in which the Ninth Circuit en banc considered whether

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coordination petitions constituted a proposal for a joint trial. Corber, 771 F.3d 1218.

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Corber focused heavily on the text of the petitions and supporting documents and

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explained that while the petitions did not expressly request a “joint trial,” they sought

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coordination “for all purposes,” just as the petition in this case does. Id. at 1223. Corber

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reasoned that read literally, “‘[a]ll purposes’ must include the purposes of trial.” Id. The

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Court also noted that the petitions’ stated reasons for coordination, namely the danger of

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inconsistent judgments and conflicting determinations of liability, further supported the

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conclusion that they sought a joint trial. Id. at 1223–24. The Corber plaintiffs had not

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simply recited the factors articulated in Section 404.1, but asserted that “‘[t]he

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inevitability of realizing the inconsistency and duplication factor of California Code of

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Civil Procedure Section 404.1[ ] weighs heavily in favor of coordination,’” that “‘issues

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pertaining to liability, allocation of fault and contribution, as well as the same wrongful

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conduct of defendants,’ would require coordination,” and “repeatedly stated that the

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factors catalogued in section 404.1 all supported coordination, including the fact that

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‘[o]ne judge hearing all of the actions for all purposes in a selected site or sites will

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promote the ends of justice.’” Id. at 1224. Here too, the amended petition did not simply

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recite the Section 404.1 factors, but rather it repeatedly noted the need to avoid
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inconsistent judgments and rulings on issues of liability, which could ultimately come

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before the California Court of Appeal. (Am. Pet. at 8; MPA at 7–8; Finson Decl. ¶ 11.)

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Corber clarified that not all petitions for coordination under Section 404 are “per

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se proposals to try cases jointly for the purposes of CAFA’s mass action provision.”

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Corber, 771 F.3d at 1224. A coordination petition that “expressly seeks to limit its

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request for coordination to pre-trial matters” would align with the CAFA carve-out for

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claims that have been consolidated or coordinated solely for pretrial proceedings.2 Id.

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Although JCCP Counsel represented at the February 25, 2014, status conference in state

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court that their primary concern was coordination for purposes of discovery, the language

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of the amended coordination petition was not limited to pre-trial matters. (Orr Decl. Ex.

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M at 17:13–23.) It clearly proposed coordination for judgments and proceedings that

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would involve issues of liability, and the Court must hold the plaintiffs who submitted the

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amended petition and accompanying add-on petitions responsible for this proposal of a

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joint trial. Corber, 771 F.3d at 1223.

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B. 100 or More Plaintiffs Did Not Propose a Joint Trial

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The real dispute among the parties is whether there was a proposal that 100

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plaintiffs’ cases be tried jointly. The Ninth Circuit has so far declined to specify exactly

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who must make a proposal for a joint trial to trigger CAFA’s mass action provision,

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which encompasses cases “in which monetary relief claims of 100 or more persons are

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proposed to be tried jointly.” Briggs v. Merck Sharp & Dohme, 796 F.3d 1038, 1047 (9th

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Cir. 2015) (emphasis added) (citing 28 U.S.C. § 1332(d)(11)(B)(i)) (declining to decide

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whether a proposal for a joint trial could come from a judge). The Ninth Circuit has only

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Corber also noted that “[i]t is not clear whether the California Judicial Council would grant
coordination for less than ‘all purposes.’ However, if Plaintiffs had qualified their coordination request
by saying that it was intended to be solely for pre-trial purposes, then it would be difficult to suggest that
Plaintiffs had proposed a joint trial.” Corber, 771 F.3d at 1224–25.
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held that it is insufficient for a proposal for a joint trial to come from a defendant. Id. at

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1048. However, in Briggs, the Ninth Circuit recently clarified that although “implicit

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proposals may trigger CAFA’s removal jurisdiction,” a “proposal for purposes of

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CAFA’s mass action jurisdiction, even an implicit proposal, is a ‘voluntary and

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affirmative act’ . . . and an ‘intentional act.’” Id. at 1048 (emphasis added) (quoting

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Corber, 771 F.3d at 1224 and Parson v. Johnson & Johnson, 749 F.3d 879, 888 (10th

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Cir. 2014)). “It is ‘not a mere suggestion’” or “a mere prediction.” Id. (quoting Scimone

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v. Carnival Corp., 720 F.3d 876, 883 (11th Cir. 2013)).3

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Plaintiffs insist that at most only sixty-five plaintiffs proposed that their cases be

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jointly tried, because that is the maximum number of plaintiffs that ever attempted to join

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the JCCP. (Mot. at 21.) They maintain that the rest of the plaintiffs did nothing more

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than file their complaints in state court, and the plaintiffs in the JCCP cannot bind other

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plaintiffs who have not yet been added through an add-on petition or other means. (Id. at

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16–19 (citing Tanoh, 561 F.3d at 953–54 and Briggs, 796 F.3d at 1049).) The Court

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agrees.

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Only the sixty-five plaintiffs who were named in the amended coordination

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petition or add-on petitions have acted voluntarily and affirmatively to propose a joint

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trial. While most of these plaintiffs’ add-on petitions are still pending, and a few who

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were included in the amended petition and left out of the initial order creating the JCCP

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did not subsequently file an add-on petition, these sixty-five plaintiffs each proposed, in

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some form or another, that their cases be tried jointly. This number, however, falls short

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of the required 100 plaintiffs in CAFA’s mass action provision.

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Briggs also explained that “[w]hile Corber held that an initial petition for a JCCP can constitute a
proposal, it is not clear whether an add-on petition can constitute a proposal as well—particularly where,
as here, the claims in the add-on petition would not meet CAFA’s hundred-person threshold unless
added to claims that had previously been joined ‘upon motion of a defendant.’” Briggs, 796 F.3d at
1050. Briggs did not reach this issue, however, because “even if the . . . plaintiffs’ add-on petition could
be construed as a proposal, it was not a proposal for a joint trial.” Id.
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Pfizer argues that JCCP Counsel proposed joining thousands of plaintiffs to the

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coordinated action by “repeatedly stat[ing] that they would seek to add ‘all subsequent

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LIPITOR actions.’” (Opp. at 2–3, 7.) Contrary to Pfizer’s assertion, JCCP Counsel’s

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statements are insufficient to trigger CAFA mass action jurisdiction, because they are

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merely suggestions or predictions—not voluntary and affirmative acts proposing a joint

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trial on behalf of the remaining plaintiffs. Although JCCP Counsel provided Judge

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Johnson with a list of all known Lipitor actions filed in California State Court at the time

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of the February 25, 2014, status conference, this did not “unambiguously inform[]

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[Pfizer] to a substantial degree of specificity” that the claims of at least 100 Plaintiffs had

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been proposed to be tried jointly. (See Opp. at 14–15 (citing Portnoff v. Janssen Pharm.,

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Inc., 2017 WL 708745, at *6 (E.D. Pa. Feb. 22, 2017).) It merely alerted Judge Johnson

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and Pfizer to additional cases that could potentially be coordinated. Pfizer is correct that

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the statutory question is whether a joint trial has been proposed, not whether it will

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actually take place. (Opp. at 14.) However, absent add-on petitions or similar

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affirmative actions or definitive commitments by the remaining plaintiffs or their

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attorneys, they have not proposed a joint trial.4

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Pfizer also notes that JCCP Counsel represent at least 2,823 plaintiffs in 77 Lipitor

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actions, and have stated that they are in close communication with the attorneys working

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on the rest of the Lipitor cases. (Opp. at 2–3.) Pfizer apparently believes that the fact

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that JCCP Counsel are working on additional cases that have not yet filed add-on

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petitions and are cooperating with other plaintiffs’ attorneys is enough to impute the joint

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It is important to note that the legislative history of the mass action provision supports the view that it
is the 100 or more plaintiffs themselves who must propose the joint trial. The legislative history
provides that “subsection 1332(d)(11) expands federal jurisdiction over mass actions–suits that are
brought on behalf of numerous named plaintiffs who claim that their suits present common questions of
law or fact that should be tried together even though they do not seek class certification status. . . . Under
subsection 1332(d)(11), any civil action in which 100 or more named parties seek to try their claims for
monetary relief together will be treated as a class action for jurisdictional purposes.” S. Rep. 109-14, at
46, 2005 U.S.C.C.A.N. 3, at 43–44 (emphasis added).
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trial proposal of the sixty-five plaintiffs onto remaining plaintiffs. This is unpersuasive,

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because it is the identities and actions of the clients, not that of the attorneys, that matters.

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JCCP Counsel have not acted on behalf of any plaintiffs beyond the aforementioned

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sixty-five —JCCP Counsel have merely represented that they anticipate many additional,

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unspecified cases will be coordinated. Neither the actions of the sixty-five plaintiffs nor

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JCCP Counsel can be imputed to the remaining plaintiffs here.

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The Court also finds Pfizer’s attempts to minimize the effects of Briggs unavailing.

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(See Opp. at 18–19.) The Court is aware that in Briggs, it was the defendants who had

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initiated coordination proceedings, and the plaintiffs had only represented to the district

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judge that their cases would likely be joined for trial in the state court JCCP if they were

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remanded. Briggs, 796 F.3d. at 1049. Briggs reasoned that the plaintiffs had not made

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proposals that could trigger CAFA mass action jurisdiction simply by “filing their cases

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in the California state court system, when a consolidated proceeding covering similar

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claims, initiated by defendants, was underway in California court,” or by representing to

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the federal district court “what would or might happen to their cases, if they were

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remanded to the state court,” especially since the district court lacked authority to add

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cases to the state court JCCP. Id. In this case, unlike in Briggs, plaintiffs initiated the

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JCCP and had made representations to the JCCP court regarding their desire to

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coordinate additional cases. Nevertheless, Briggs’ holding that a “proposal” is a

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“voluntary and affirmative” act clearly applies here. And only sixty-five plaintiffs have

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proposed a joint trial. No other plaintiff has acted voluntarily and affirmatively to be part

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of or be bound by that proposal.

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Pfizer also contends that the remaining plaintiffs took other affirmative steps in

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their complaints to propose a joint trial. Apparently, more than 100 Lipitor cases

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involving 3,400 plaintiffs have civil cover sheets attached to their complaints indicating

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that the cases are “complex” pursuant to California Rules of Court 3.400 because they are
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subject to “[c]oordination with related actions pending in one or more courts in other

2

counties, states, or countries, or in federal court;” fifty-nine state court complaints

3

included notices of related cases stating that the case was related to the JCCP before

4

Judge Johnson; twenty-five attached copies of an order entered by Judge Johnson limiting

5

Plaintiffs’ complex case fees for “all new add-on cases joined to this coordinated

6

proceeding;” and four identified the JCCP in their case captions. (Opp. at 3, 8–9; 9 n.5.)

7

However, these actions are all administrative in nature and merely alert the clerk’s office

8

to the possibility of coordination in order to assist with case sorting and management.

9

They do not constitute voluntary and affirmative acts by each plaintiff to be part of and

10

bound by a proposal for a joint trial.5 See Briggs, 796 F.3d. at 1049 (The plaintiffs had

11

not made a proposal for a joint trial by simply “filing their cases in the California state

12

court system, when a consolidated proceeding covering similar claims . . . was underway

13

in California court.”).

14

Nor can the Court assume that at least thirty-five more plaintiffs will be

15
16

coordinated in this action because of the sheer number of plaintiffs that have filed Lipitor

17

cases. Plaintiffs are free to structure actions to avoid CAFA jurisdiction. Corber, 771

18

F.3d at 1223 (“[P]laintiffs are the ‘masters of their complaint’ and do not propose a joint

19

trial simply by structuring their complaints so as to avoid the 100-plaintiff threshold.”).

20

The plaintiffs who are not yet part of the JCCP could have many legitimate reasons for

21

not wanting a joint federal trial. For example, some plaintiffs might seek to distance

22

themselves from those with seemingly weaker claims or from those who will be

23

preoccupied with defenses unique to them. Other plaintiffs who have suffered more

24
25
26
27
28

5

The parties debate whether the coordination petitions in Corber explicitly encompassed at least 100
plaintiffs or whether the effects of the coordination petitions were merely imputed onto other plaintiffs.
(See Opp. at 15–16; Reply at 3–5, 4 n.2.) This fact was not discussed in Corber and its implications
were not argued or addressed in the opinion. See generally Corber, 771 F.3d 1218. Corber only
analyzed the narrow question of whether the coordination petitions were sufficient to constitute
proposals, not whether they could bind plaintiffs that were not explicitly named in the coordination
petitions or add-on petitions. Id. at 1222.
-14-

1

severe injuries or consequences, such as stroke, blindness, and amputation, or who are

2

bringing suit on behalf of a deceased family member, may not wish to have their claims

3

tried jointly with patients who have had milder injuries or consequences. The Court will

4

not speculate, nor base its jurisdictional decision, on whether thirty-five or more plaintiffs

5

will likely take voluntary and affirmative action to be part of and bound by a proposal for

6

a joint trial. All that matters for the Court’s decision now is that at least thirty-five

7

additional plaintiffs have not yet taken such voluntary and affirmative action.

8
9

Finally, Pfizer suggests that Judge Johnson herself has proposed a joint trial of 100

10

or more plaintiffs because her order regarding add-on procedures states that “[a]ll cases

11

filed in California state court against Pfizer, Inc. or McKesson Corporation, alleging

12

injuries related to the development of Type II diabetes . . . are assigned to the Honorable

13

Jane L. Johnson, Los Angeles Superior Court for purposes of coordination.” (Opp. at 14

14

(citing Searcy Decl. Ex. C at 1).) Pfizer submits that because the Ninth Circuit has left

15

open the possibility that “a state court’s sua sponte joinder of claims might allow a

16

defendant to remove separately filed actions to federal court as a single ‘mass action’

17

under CAFA,” Judge Johnson’s order should give rise to mass action jurisdiction. (Id. at

18

14 n.7 (citing Tanoh, 561 F.3d at 956).) The Court disagrees. The sentence immediately

19

following the one Pfizer cites clarifies that “[t]he parties to such actions, however, are

20

still required to comply with the stipulation or notice add-on procedures set forth in this

21

Order.” (Searcy Decl. Ex. C at 1 (emphasis added).) By the express terms of Judge

22

Johnson’s order, the additional cases will not be part of the JCCP or subject to the terms

23

of the coordination petition unless and until they are added by an add-on petition and not

24

subject to a notice of opposition. Indeed, Judge Johnson has only granted two add-on

25

petitions thus far, bringing the total number of plaintiffs in the JCCP to just nine. (Orr

26

Decl. Exs. H, I.) Moreover, at the status conference, Judge Johnson repeatedly stated that

27

the JCCP cases “can be sent back for trial,” so it is far from clear whether Judge

28
-15-

1

Johnson’s order is even proposing a joint trial, let alone one involving 100 or more

2

plaintiffs. (Orr Decl. Ex. M at 17:13–23.)

3
4

IV. CONCLUSION

5
6

Since less than 100 plaintiffs have proposed that their cases be tried jointly, the

7

Court does not have jurisdiction under CAFA’s mass action provision and all Lipitor

8

cases presently before this Court must be remanded to state court. Accordingly,

9

Plaintiffs’ motion to remand is GRANTED.

10
11
12
13

DATED:

May 23, 2017
__________________________________
CORMAC J. CARNEY

14
15

UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
-16-

Pamela McKenzie et al v. Pfizer Inc
et al
Wanda Dearmore et al v. Pfizer Inc
et al
Juana Garcia et al v. Pfizer Inc et al
Judy Miller et al v. Pfizer Inc et al
Bernadette Fernandez et al v. Pfizer
Inc et al
Segalilt Siegel et al v. Pfizer Inc et al
Luretta Alexander-Jackson et al v.
Pfizer Inc et al
Willie Sims-Lewis et al v. Pfizer Inc
et al
Bonnie Kessner et al v. Pfizer Inc et
al
Jeri Kessler et al v. Pfizer Inc et al
Ravyne Dow et al v. Pfizer Inc et al
Deberah Rivington et al v. Pfizer Inc
et al
Phyllis Beima et al v. Pfizer Inc et al
Nina Obuch et al v. Pfizer Inc et al
Adelle Calabretta et al v. Pfizer Inc
et al
Alida Adamyan et al v. Pfizer Inc et
al
Maria Carbajal et al v. Pfizer Inc et
al
Dorothy M Andres et al v. Pfizer Inc
et al
Donna Kruenegel et al v. Pfizer Inc
et al
Mattie King et al v. Pfizer Inc et al
Patricia Banks et al v. Pfizer Inc et
al
Rose A Williams et al v. Pfizer Inc
et al
Vicky Avila et al v. Pfizer Inc et al
Maizy Benons et al v. Pfizer Inc et al
Linda Roy et al v. Pfizer Inc et al
Brenda Johnson et al v. Pfizer Inc et
al
Blanca Mejia et al v. Pfizer Inc et al
Lori Ann Weisman et al v. Pfizer Inc

2:14-cv-01800 CJC (JPRx)
2:14-cv-01801 CJC ( JPRx)
2:14-cv-01804 CJC (JPRx)
2:14-cv-01805 CJC (JPRx)
2:14-cv-01806 CJC (JPRx)
2:14-cv-01807 CJC (JPRx)
2:14-cv-01808 CJC (JPRx)
2:14-cv-01809 CJC (JPRx)
2:14-cv-01811 CJC (JPRx)
2:14-cv-01812 CJC ( JPRx)
2:14-cv-01813 CJC (JPRx)
2:14-cv-01814 CJC (JPRx)
2:14-cv-01815 CJC (JPRx)
2:14-cv-01816 CJC (JPRx)
2:14-cv-01817 CJC (JPRx)
2:14-cv-01818 CJC (JPRx)
2:14-cv-01819 CJC (JPRx)
2:14-cv-01820 CJC (JPRx)
2:14-cv-01822 CJC (JPRx)
2:14-cv-01823 CJC ( JPRx)
2:14-cv-01824 CJC (JPRx)
2:14-cv-01828 CJC (JPRx)
2:14-cv-01829 CJC (JPRx)
2:14-cv-01831 CJC (JPRx)
2:14-cv-01832 CJ C(JPRx)
2:14-cv-01836 CJC (JPRx)
2:14-cv-01837 CJC (JPRx)
2:14-cv-01841 CJC (JPRx)

et al
Sylvia Alvardo v. Pfizer Inc et al
Lena Whitaker et al v. Pfizer Inc et
al
Martha Bowser v. Pfizer Inc et al
Patricia Lewis et al v. Pfizer Inc et al
Emma Fields et al v. Pfizer Inc et al
Fiette Williams et al v. Pfizer Inc et
al
Pallavi Mehta et al v. Pfizer Inc et al
Theresa Medina et al v. Pfizer Inc et
al
Deborah McClain et al v. Pfizer Inc
et al
Valerie Davis v. Pfizer Inc et al
Tonisha Powell et al v. Pfizer Inc et
al
Zurita Gray et al v. Pfizer Inc et al
Clara Bagdasarian et al v. Pfizer Inc
et al
Clara Owens v. Pfizer Inc et al
Deloris Ann Richard et al v. Pfizer
Inc et al
Mazal Azzam et al v. Pfizer Inc et al
Imelda Diaz et al v. Pfizer Inc et al
Shahla Owhady et al v. Pfizer Inc et
al
Ouida Valentine et al v. Pfizer Inc et
al
Loretta Curley et al v. Pfizer Inc et
al
Regina Feberdino et al v. Pfizer Inc
et al
Ruth English et al v. Pfizer Inc et al
Cheri Lubenko v. Pfizer Inc et al
Jessie Hill et al v. Pfizer Inc et al
Doris Choate et al v. Pfizer Inc et al
Susan Kelley et al v. Pfizer Inc et al
Charlene Tate et al v. Pfizer Inc et
al
Mary Adamian et al v. Pfizer Inc et
al
Candacy Roberts-Anderson et al v.
Pfizer Inc et al
Louise Harris et al v. Pfizer Inc et al
Shirley Reynolds et al v. Pfizer Inc
et al

2:14-cv-01843 CJC (JPRx)
2:14-cv-01844 CJC ( JPRx)
2:14-cv-01846 CJC (JPRx)
2:14-cv-01848 CJC (JPRx)
2:14-cv-01850 CJC (JPRx)
2:14-cv-01853 CJC (JPRx)
2:14-cv-01854 CJ C(JPRx)
2:14-cv-01857 CJC (JPRx)
2:14-cv-01858 CJC (JPRx)
2:14-cv-01860 CJC (JPRx)
2:14-cv-01861 CJC ( JPRx)
2:14-cv-01862 CJC (JPRx)
2:14-cv-01863 CJC (JPRx)
2:14-cv-01865 CJC (JPRx)
2:14-cv-01866 CJC (JPRx)
2:14-cv-01867 CJC (JPRx)
2:14-cv-01869 CJC (JPRx)
2:14-cv-01872 CJC ( JPRx)
2:14-cv-01874 CJC (JPRx)
2:14-cv-01876 CJC (JPRx)
2:14-cv-01889 CJC (JPRx)
2:14-cv-01892 CJC (JPRx)
2:14-cv-01894 CJC (JPRx)
2:14-cv-01895 CJC (JPRx)
2:14-cv-01896 CJC (JPRx)
2:14-cv-01897 CJC (JPRx)
2:14-cv-01898 CJC (JPRx)
2:14-cv-01899 CJC ( JPRx)
2:14-cv-01904 CJC (JPRx)
2:14-cv-01906 CJC (JPRx)
2:14-cv-01907 CJC (JPRx)

Juanita Banks et al v. Pfizer Inc et al
Ruby Hare et al v. Pfizer Inc et al
Marion Constant v. Pfizer Inc et al
Janice S Robinson et al v. Pfizer Inc
et al
Joy Zullo et al v. Pfizer Inc et al
Donna Willis v. Pfizer Inc et al
Frankie Brown et al v. Pfizer Inc et
al
Jocelyn Clemente Salvo et al v.
Pfizer Inc et al
Gladys Anderson et al v. Pfizer Inc
et al
Darlene Jordan et al v. Pfizer Inc et
al
Deann Pierce v. Pfizer Inc et al
Denelle Bailey et al v. Pfizer Inc et
al
Edith Wakabayashi v. Pfizer Inc et
al
Maye Alberstone et al v. Pfizer Inc
et al
Rose Hodges v. Pfizer Inc et al
Marilyn Williams et al v. Pfizer Inc
et al
Linda Franzone et al v. Pfizer Inc et
al
Joyce Lubniewski v. Pfizer Inc et al
Tomie Isrel et al v. Pfizer Inc et al
Elizabeth Ann Watts et al v. Pfizer
Inc et al
Jewel Williams et al v. Pfizer Inc et
al
Kim Collins et al v. Pfizer Inc et al
Linda Watson et al v. Pfizer Inc et al
Helen Elliott et al v. Pfizer Inc et al
Eliane Scott et al v. Pfizer Inc et al
Michelle Bradley et al v. Pfizer Inc
et al
Granieta Johnson-Wilson et al v.
Pfizer Inc et al
Judy Kloss et al v. Pfizer Inc et al
Ann Sanchez et al v. Pfizer Inc et al
Judith Smalley et al v. Pfizer Inc et
al
Julie Williams et al v. Pfizer Inc et al
Robyn Whitney et al v. Pfizer Inc et

2:14-cv-01908 CJC (JPRx)
2:14-cv-01910 CJC (JPRx)
2:14-cv-01911 CJC (JPRx)
2:14-cv-01912 CJC ( JPRx)
2:14-cv-01914 CJC (JPRx)
2:14-cv-01916 CJC (JPRx)
2:14-cv-01921 CJC (JPRx)
2:14-cv-01924 CJC (JPRx)
2:14-cv-01925 CJC (JPRx)
2:14-cv-01928 CJC (JPRx)
2:14-cv-01929 CJC (JPRx)
2:14-cv-01930 CJC (JPRx)
2:14-cv-01931 CJC (JPRx)
2:14-cv-01932 CJC (JPRx)
2:14-cv-01936 CJC (JPRx)
2:14-cv-01937 CJC (JPRx)
2:14-cv-01940 CJC (JPRx)
2:14-cv-01942 CJC (JPRx)
2:14-cv-01943 CJC (JPRx)
2:14-cv-01997 CJC (JPRx)
2:14-cv-03477 CJC (JPRx)
2:14-cv-05792 CJC (JPRx)
2:14-cv-06226 CJC ( JPRx)
2:14-cv-06617 CJC (JPRx)
2:14-cv-07432 CJC (JPRx)
2:14-cv-07649 CJC (JPRx)
2:14-cv-08261 CJC (JPRx)
2:14-cv-09567 CJC ( JPRx)
2:15-cv-01211 CJC (JPRx)
2:15-cv-01483 CJC (JPRx)
2:15-cv-01626 CJC (JPRx)
2:15-cv-01638 CJC (JPRx)

al
Gloria Wilson et al v. Pfizer Inc et al
Amy Caro et al v. Pfizer Inc et al
Shari Beneda et al v. Pfizer Inc et al
Magda Santiago et al v. Pfizer Inc et
al
Shary Stegall et al v. Pfizer Inc et al
Michelle Davis et al v. Pfizer Inc et
al
Pauline St Jean et al v. Pfizer Inc et
al
Anita Perlhefter et al v. Pfizer Inc et
al
Priscilla Garcia et al v. Pfizer Inc et
al
Ruth Yaker et al v. Pfizer Inc et al
Nadine Smith et al v. Pfizer Inc et al
Gloria Ashley et al v. Pfizer Inc et al
Betty Stevens et al v. Pfizer Inc et al
Mixdalia Taime et al v. Pfizer Inc et
al
Pari Jamshidi et al v. Pfizer Inc et al
Jonna Roberts et al v. Pfizer Inc et
al
Emilya Yudson et al v. Pfizer Inc et
al
Aleene M Queen et al v. Pfizer Inc
et al
Theresa Bagliere et al v. Pfizer Inc
et al
Teresa Brooks et al v. Pfizer Inc et
al
Genevieve Monreal et al v. Pfizer
Inc et al
Elizabeth DeBay et al v. Pfizer Inc et
al
Myrle Jackson et al v. Pfizer Inc et
al
Sharon Campbell et al v. Pfizer Inc
et al
Lawana Smith et al v. Pfizer Inc et
al
Mildred Lois Brown et al v. Pfizer
Inc et al
Barbara Gibson et al v. Pfizer Inc et
al
Rose A Carpenter et al v. Pfizer Inc

2:15-cv-03525 CJC (JPRx)
2:15-cv-03880 CJC (JPRx)
2:15-cv-04267 CJC (JPRx)
2:15-cv-04299 CJC (JPRx)
2:15-cv-05013 CJC (JPRx)
2:15-cv-05188 CJC (JPRx)
2:15-cv-06068 CJC (JPRx)
2:15-cv-06555 CJC (JPRx)
2:15-cv-07257 CJC (JPRx)
2:15-cv-7258 CJC (JPRx)
2:15-cv-08138 CJC ( JPRx)
2:15-cv-08604 CJC (JPRx)
2:15-cv-08845 CJC ( JPRx)
2:15-cv-09495 CJC (JPRx)
2:16-cv-00586 CJC (JPRx)
2:16-cv-01400 CJC (JPRx)
2:16-cv-01762 CJC (JPRx)
2:16-cv-01924 CJC (JPRx)
2:16-cv-02996 CJC (JPRx)
2:16-cv-03811 CJC (JPRx)
2:16-cv-04007 CJC (JPRx)
2:16-cv-04015 CJC (JPRx)
2:16-cv-04678 CJC (JPRx)
2:16-cv-05156 CJC (JPRx)
2:16-cv-05560 CJC (JPRx)
2:16-cv-06157 CJC (JPRx)
2:16-cv-06592 CJC (JPRx)
2:16-cv-07084 CJC (JPRx)

et al
Cynthia Faye Davis et al v. Pfizer Inc
et al
Sharal Scully et al v. Pfizer Inc et al
Patricia Williams et al v. Pfizer Inc
et al
Vicky Chaffee et al v. Pfizer Inc et al
Tonya Baker et al v. Pfizer Inc et al
Vivia Artz et al v. Pfizer Inc et al
Join Boles et al v. Pfizer Inc et al
Josefina Allison et al v. Pfizer Inc et
al
Bessie Barringer et al v. Pfizer Inc et
al
Mary Baker et al v. Pfizer Inc et al
Alma Richards v. Pfizer Inc et al
Chasa Williams v. Pfizer Inc et al
Sharon Parker et al v. Pfizer Inc et
al

2:16-cv-07118 CJC (JPRx)
2:16-cv-07478 CJC ( JPRx)
2:16-c-v07762 CJC (JPRx)
2:16-cv-07977 CJC (JPRx)
2:16-cv-08542 CJ C(JPRx)
2:16-cv-08694 CJC (JPRx)
2:16-cv-08710 CJC ( JPRx)
2:16-cv-08721 CJC (JPRx)
2:16-cv-09091 CJC (JPRx)
2:16-cv-09532 CJC (JPRx)
5:14-cv-00485 CJC (JPRx)
5:14-cv-00493 CJC (JPRx)
5:14-cv-00496 CJC (JPRx)