Alanis et al v. Pfizer Inc. et al

Filing 27

CONDITIONAL REMAND ORDER. MDL No. 2502. Case reopened. (Robles, S)

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Entry Number 1752

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Case MDL No. 2502 Document 786 Filed 11/28/16 Page 1 of 3
A TRUE COPY
ATTEST: ROBIN L. BLUME, CLERK
BY:
DEPUTY CLERK

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: LIPITOR (ATORVASTATIN CALCIUM)
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION (NO. II)

MDL No. 2502

(SEE ATTACHED SCHEDULE)

CONDITIONAL REMAND ORDER

The transferee court in this litigation has advised the Panel that coordinated or consolidated pretrial
proceedings in the action(s) on this conditional remand order have been completed and that remand
to the transferor court(s), as provided in 28 U.S.C. § 1407(a), is appropriate.
IT IS THEREFORE ORDERED that the action(s) on this conditional remand order be remanded to
its/their respective transferor court(s).
IT IS ALSO ORDERED that, pursuant to Rule 10.2 of the Rules of Procedure of the United States
Judicial Panel on Multidistrict Litigation, the transmittal of this order to the transferee clerk for
filing shall be stayed 7 days from the date of this order. If any party files a notice of opposition with
the Clerk of the Panel within this 7−day period, the stay will be continued until further order of the
Panel. This order does not become effective until it is filed in the office of the Clerk for the United
States District Court for the District of South Carolina.
IT IS FURTHER ORDERED that, pursuant to Rule 10.4(a), the parties shall furnish the Clerk for
the District of South Carolina with a stipulation or designation of the contents of the record to be
remanded.

FOR THE PANEL:
Nov 28, 2016

Jeffery N. Lüthi
Clerk of the Panel

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IN RE: LIPITOR (ATORVASTATIN CALCIUM)
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION (NO. II)

MDL No. 2502

SCHEDULE FOR CRO
TRANSFEREE
DIST DIV. C.A.NO.
SC 2 14−02287
SC 2 14−02289
SC 2 14−02291
SC 2 14−02296
SC 2 14−02298
SC 2 14−02304
SC 2 14−02305
SC 2 14−02309
SC 2 14−02310
SC 2 14−02311
SC 2 14−02316
SC 2 14−02317
SC 2 14−02318
SC 2 14−02321
SC 2 14−02320
SC 2 14−02322
SC 2 14−02323
SC 2 14−02324
SC 2 14−02325
SC 2 14−02326
SC 2 14−02327
SC 2 14−02328
SC 2 14−02330
SC 2 14−02290
SC 2 14−02297
SC 2 14−02299
SC 2 14−02300
SC 2 14−02301
SC 2 14−02302
SC 2 14−02303
SC 2 14−02306
SC 2 14−02308
SC 2 14−02339
SC 2 14−02340
SC 2 14−02341
SC 2 14−02342

TRANSFEROR
DIST DIV. C.A.NO.
CAC 2 14−01800
CAC 2 14−01804
CAC 2 14−01806
CAC 2 14−01807
CAC 2 14−01811
CAC 2 14−01814
CAC 2 14−01815
CAC 2 14−01816
CAC 2 14−01818
CAC 2 14−01819
CAC 2 14−01820
CAC 2 14−01822
CAC 2 14−01823
CAC 2 14−01828
CAC 2 14−01829
CAC 2 14−01831
CAC 2 14−01832
CAC 2 14−01836
CAC 2 14−01837
CAC 2 14−01841
CAC 2 14−01843
CAC 2 14−01844
CAC 2 14−01848
CAC 2 14−01850
CAC 2 14−01853
CAC 2 14−01854
CAC 2 14−01857
CAC 2 14−01858
CAC 2 14−01860
CAC 2 14−01861
CAC 2 14−01862
CAC 2 14−01863
CAC 2 14−01866
CAC 2 14−01867
CAC 2 14−01869
CAC 2 14−01872

CASE CAPTION
Pamela McKenzie et al v. Pfizer,Inc et al
Juana Garcia 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
Bonnie Kessner 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
Alida Adamyan et al v. Pfizer, Inc
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.
Rose A. Williams et al v. Pfizer, Inc. et al
Vicky Avila et al v. Pfizer, Inc.
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 et al
Sylvia Alvardo v. Pfizer Inc et al
Lena Whitaker et al v. Pfizer Inc et al
Patricia Lewis et al v. Pfizer, Inc. et al
Emma Frields 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
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

2:14-mn-02502-RMG
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC
SC

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Case MDL No. 2502 Document 786 Filed 11/28/16 Page 3 of 3
2 14−02343 CAC 2 14−01874 Ouida Valentine et al v. Pfizer Inc et al
2 14−02344 CAC 2 14−01876 Loretta Curley et al v. Pfizer Inc et al
2 14−02345 CAC 2 14−01889 Regina Feberdino et al v. Pfizer Inc et al
2 14−02346 CAC 2 14−01892 Ruth English et al v. Pfizer Inc et al
2 14−02349 CAC 2 14−01894 Cheri Lubenko v. Pfizer Inc et al
2 14−02350 CAC 2 14−01895 Jessie Hill et al v. Pfizer Inc et al
2 14−02351 CAC 2 14−01896 Doris Choate et al v. Pfizer Inc et al
2 14−02352 CAC 2 14−01897 Susan Kelley et al v. Pfizer Inc et al
2 14−02353 CAC 2 14−01898 Charlene Tate et al v. Pfizer Inc et al
2 14−02354 CAC 2 14−01899 Mary Adamian et al v. Pfizer Inc et al
2 14−02355 CAC 2 14−01904 Candacy Roberts−Anderson et al v. Pfizer, Inc.
et al
2 14−02356 CAC 2 14−01906 Louise Harris et al v. Pfizer Inc et al
2 14−02357 CAC 2 14−01907 Shirley Reynolds et al v. Pfizer Inc et al
2 14−02358 CAC 2 14−01908 Juanita Banks et al v. Pfizer Inc
2 14−02359 CAC 2 14−01910 Ruby Hare et al v. Pfizer Inc et al
2 14−02361 CAC 2 14−01912 Janice S. Robinson et al v. Pfizer Inc et al
2 14−02362 CAC 2 14−01914 Joy Zullo et al v. Pfizer Inc et al
2 14−02364 CAC 2 14−01921 Frankie Brown et al v. Pfizer Inc et al
2 14−02365 CAC 2 14−01924 Jocelyn Clemente Salvo et al v. Pfizer Inc et al
2 14−02366 CAC 2 14−01925 Gladys Anderson et al v. Pfizer Inc et al
2 14−02370 CAC 2 14−01928 Darlene Jordan et al v. Pfizer Inc et al
2 14−02372 CAC 2 14−01930 Denelle Bailey et al v. Pfizer Inc et al
2 14−02373 CAC 2 14−01931 Edith Wakabayashi v. Pfizer Inc et al
2 14−02374 CAC 2 14−01932 Maye Alberstone et al v. Pfizer Inc et al
2 14−02376 CAC 2 14−01937 Marilyn Williams et al v. Pfizer, Inc. et al
2 14−02377 CAC 2 14−01940 Linda Franzone et al v. Pfizer Inc et al
2 14−02379 CAC 2 14−01943 Tomie Isrel et al v. Pfizer Inc et al
2 14−02380 CAC 2 14−01997 Elizabeth Ann Watts et al v. Pfizer Inc et al
2 14−02273 CAC 5 14−00485 Alma Richards v. Pfizer Inc et al
2 14−01810 CAC 5 14−00493 Chasa Williams v. Pfizer Inc et al
2 14−02274 CAC 5 14−00496 Sharon Parker et al v. Pfizer Inc et al
2 14−02231 CAE 1 14−00365 Alanis et al v. Pfizer Inc. et al
2 14−02263 CAN 3 14−01177 Little et al v. Pfizer Inc.
2 14−02257 CAN 3 14−01195 Rouda v. Pfizer Inc., et al
2 14−02256 CAN 3 14−01196 Peters v. Pfizer Inc. et al
2 14−02241 CAN 3 14−01204 Kathleen Davis v. Pfizer Inc.

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Case MDL No. 2502 Document 786-1 Filed 11/28/16 Page 1 of 16
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

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IN RE: LlPITOR (ATORVASTATIN
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CASE MANAGEMENT ORDER N<ri;87 .(3
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This Order relates to cases:
2:14-cv-01810
2: 14-cv-02231
2: 14-cv-02241
2: 14-cv-02256
2: 14-cv-02257
2: 14-cv-02263
2: 14-cv-02273
2: 14-cv-02274
2: 14-cv-02287
2: 14-cv-02289
2: 14-cv-02290
2: 14-cv-02291
2: 14-cv-02296
2: 14-cv-02297
2: 14-cv-02298
2: 14-cv-02299
2: 14-cv-02300
2: 14-cv-02301
2: 14-cv-02302
2: 14-cv-02303
2: 14-cv-02304
2: 14-cv-02305
2: 14-cv-02306
2: 14-cv-02308
2: 14-cv-02309
2: 14-cv-02310
2: 14-cv-02311
2: 14-cv-02316
2: 14-cv-02317
2: 14-cv-02318
2: 14-cv-02320
2: 14-cv-02321
2: 14-cv-02322
2: 14-cv-02323
2: 14-cv-02324
2: 14-cv-02325

2: 14-cv-02326
2: 14-cv-02327
2: 14-cv-02328
2: 14-cv-02330
2: 14-cv-02339
2: 14-cv-02340
2: 14-cv-02341
2: 14-cv-02342
2: 14-cv-02343
2: 14-cv-02344
2: 14-cv-02345
2: 14-cv-02346
2: 14-cv-02349
2: 14-cv-02350
2: 14-cv-02351
2: 14-cv-02352
2: 14-cv-02353
2: 14-cv-02354
2: 14-cv-02355
2: 14-cv-02356
2: 14-cv-02357
2: 14-cv-02358
2: 14-cv-02359
2: 14-cv-02361
2: 14-cv-02362
2: 14-cv-02364
2: 14-cv-02365
2: 14-cv-02366
2: 14-cv-02370
2: 14-cv-02372
2: 14-cv-023 73
2: 14-cv-02374
2: 14-cv-02376
2: 14-cv-02377
2: 14-cv-02379
2: 14-cv-02380

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Case MDL No. 2502 Document 786-1 Filed 11/28/16 Page 2 of 16

Motions to Remand (Dkt. Nos. 267, 268, 269)
For the reasons stated below, Plaintiffs' Motions to Remand (Dkt. Nos. 267, 268, 269)
are GRANTED IN PART. I

A. Background
Each of these cases was originally filed in California state court against Defendants
Pfizer, Inc. ("Pfizer") and McKesson Corp. ("McKesson"). Plaintiffs allege that Lipitor caused
them to develop Type II diabetes and that, among other things, Defendants did not properly
disclose the risks associated with Lipitor. Defendants removed these actions to federal district
courts in California, asserting (1) diversity jurisdiction and (2) federal jurisdiction under the
Class Action Fairness Act of 2005 (CAFA). While complete diversity is lacking on the face of
the Complaints, Pfizer contends that (a) McKesson was fraudulently joined and should be
disregarded for the purposes of determining whether diversity jurisdiction exists and (b) that
non-California Plaintiffs are fraudulently misjoined and that their claims should be severed.
After removal, these cases were transferred to this MDL by the JPML, and Plaintiffs'
filed motions to remand. (Dkt. No. 267, 268, 269). In addition to lack of subject matter
jurisdiction, Plaintiffs also argue that the forum defendant rule bars removal, that Pfizer's
removal of certain cases was untimely, and that the Court should remand the cases to California
federal courts in accordance with CAFA. The Court referred these motions to remand to the
Magistrate Judge. (Dkt. No. 292).

I This order does not address the motions with regard to Banks, et al. v. Pfizer Inc., et ai., 2:14cv-1811; Bowser v. Pfizer Inc., et ai., 2: 14-cv-2329; Constant v. Pfizer Inc., et ai., 2: 14-cv-2360;
Hodges v. Pfizer Inc. et ai., 2: 14-cv-2375; Lubniewski v. Pfizer Inc., et al., 2: 14-cv-2378; Owens
v. Pfizer Inc., et al., 2:14-cv-2307; Pierce v. Pfizer Inc., et ai., 2:14-cv-2371; and Willis v. Pfizer
Inc., et ai., 2: 14-cv-2363. In these eight cases, there are no California Plaintiffs. Therefore,
complete diversity exists on the face of the Complaints. The Court will address these eight cases
by separate order.

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The Magistrate Judge issued an order granting the motions to remand and ordering that
these actions be transferred to the federal district courts in California from which they came.
(Dkt. No. 715). However, because it has not been definitively established whether an order of
remand is dispositive such that it must be ruled on by a District Judge absent consent of the
parties, Judge Marchant ordered that the parties were allowed to file objections to the order of
remand and that if any objections were filed, the case be forwarded to this Court for de novo
review and final disposition. (ld.). Defendants filed objections, Plaintiffs responded, and the
parties have filed several notices of supplemental authority and additional briefing. (See Dkt.
Nos. 755, 796, 829, 845, 867, 889, 894, 1654, 1664, 1673). This matter is now before the Court
for de novo review.
B. Fraudulent Joinder of McKesson
Pfizer makes three arguments that McKesson is fraudulently joined: (1) the state law
claims against McKesson are preempted by federal law so there is no possibility they can
establish a cause of action in state court against McKesson, (2) Plaintiffs have failed to state a
claim against McKesson, and (3) Plaintiffs lack a genuine intent to prosecute claims against
McKesson. The Court takes each of these arguments in tum and ultimately finds that McKesson
is not fraudulently joined with regard to California Plaintiffs.
1. Legal Standard
The fraudulent joinder doctrine "effectively permits a district court to disregard, for
jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over
a case, dismiss the nondiverse defendants, and thereby retain jurisdiction." Johnson v. Am.
Towers, LLC, 781 F.3d 693, 704 (4th Cir. 2015) (quotations omitted). To establish that a
nondiverse defendant has been fraudulently joined, the removing party must establish either: (1)

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that there has been outright fraud in the plaintiffs pleading of jurisdictional facts or (2) that there
is no possibility that the plaintiff would be able to establish a cause of action against the in-state
defendant in state court. E.g., Johnson, 781 F.3d at 704; Marshall v. Manville Sales Corp., 6
F.3d 229,232 (4th Cir. 1993).
This is a heavy burden. Johnson, 781 F.3d at 704. The defendant must show the plaintiff
cannot establish a claim against the nondiverse defendant "even after resolving all issues of law
and fact in the plaintiffs favor." Id. The standard "is even more favorable to the plaintiff than
the standard for ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6)." Id. (quotations
marks omitted). "[T]here need be only a slight possibility of a right to relief to defeat a claim of
fraudulent joinder." Mayes v. Rapoport, 198 F.3d 457, 466 (4th Cir. 1999) (internal quotations
marks omitted).
2. Preemption
Pfizer argues that the claims against McKesson are preempted by Federal Drug and
Cosmetic Act (FDCA). The U.S. Supreme Court has held that a generic drug manufacturer
cannot change its label without FDA approval and, thus, any state law claims alleging that the
manufacturer should have changed its label are preempted by federal law. PLIVA, Inc. v.
Mensing, 131 S. Ct. 2567,2571 (2011); see also Mut. Pharm. Co. v. Bartlett, 133 S. Ct. 2466

(2013) (holding that when a defendant's only option to comply with both state and federal law is
to stop selling a drug, federal law preempts state law claims, i.e., defendants are not required to
stop selling the drug). Pfizer argues that as a distributor, McKesson also cannot unilaterally
change the label of prescription medicines it distributes under federal law, and, thus, any state
law claims are preempted.

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Courts outside the Fourth Circuit, applying the fraudulent joinder doctrine, have held that
even though this argument has some logic to it, until Mensing and Barlett are explicitly extended
to distributors, "it is not obvious" that plaintiffs have "absolutely no claim" against McKesson,
and remand is appropriate. See, e.g., Smith v. Amylin Pharm., LLC, No. 13CV1236 AJB MDD,
2013 WL 3467442, at *4 (S.D. Cal. July 10,2013); (see also Dkt. No. 1580 at 12-13 (citing
cases)). Pfizer argues that the Fourth Circuit's decision in Johnson v. Am. Towers, LLe, 781
F.3d 693 (4th Cir. 2015), requires the Court to squarely address the preemption issue on the
merits. In Johnson, the Fourth Circuit held that the defendant was fraudulently joined where
"the Communications Act clearly preempts the [plaintiffs'] state-law tort claim against [the nondiverse defendant] as a matter oflaw." ld. at 705-06, 706 (emphasis added). This finding was
based on prior, binding Fourth Circuit authority. ld. at 706. Therefore, Johnson stands for the
proposition that where state causes of action are clearly preempted by federal law, there is no
possibility of a plaintiff s success on these claims. Johnson did not change the standard for
fraudulent joinder or the fact that the Court must "resolve all legal and factual issues" in favor of
Plaintiffs. ld at 704.
Turning to the issue at hand, the Court holds that the claims against McKesson based on
Lipitor's label are clearly preempted by federal law. See In re Fosamax (Alendronate Sodium)

Prod Liab. Litig. (No. II), No. MDL 2243 JAP-LHG, 2012 WL 181411, at *4 (D.N.J. Jan. 17,
2012) (holding label claims against distributor preempted). As a result of the scheme set forth by
the FDCA, McKesson has no authority to unilaterally change Lipitor's label. Id. at *3. That
authority lies with the FDA andlor with Pfizer. See 21 C.F.R. 314.70 (limiting label changes to
those approved by the FDA and "Changes Being Effected" or "CBE" changes by the
"applicant," which is the manufacturer).

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However, Plaintiffs' labeling claims are not their only claims. Plaintiffs have alleged
claims based on McKesson's advertising and marketing of Lipitor as well as claims for
fraudulent concealment ofinformation. (See Dkt. No. 347-14). Pfizer has not provided any
authority that these claims are preempted by federal law but attempts to lump all claims together
and paint them with the same brush. (See Dkt. No. 347 at 28 n.9 ("[Plaintiffs'] claims are, at
,

heart, product liability claims relating to labeling and design.")). Because Plaintiffs allege
distinct causes of action, not solely based on the labeling of Lipitor, the Court cannot say there is
no possibility of success on Plaintiffs' other claims.
3. Failure to State a Claim
In all of the cases at issue here, at least one Plaintiff in each case is a California resident.
Therefore, the Court starts with an analysis under California law. Pfizer argues that Plaintiffs
have not adequately pled causation. Plaintiffs plead that McKesson was "the largest single
distributor of Pfizer's pharmaceutical products," that it sold and distributed Lipitor in California,
and that "[u]pon information and belief," McKesson distributed the Lipitor that Plaintiffs
ingested. (Dkt. No. 347-14 at 3, 4, 6). Pfizer complains that Plaintiffs have not alleged any
information about the pharmacies where they obtained Lipitor or the relationship between these
pharmacies and McKesson and argue Plaintiffs have not adequately alleged facts showing that
McKesson did in fact distribute the Lipitor that they ingested. (Dkt. No. 755 at 31).
However, under California law, "[w]hen a plaintiff lacks knowledge and the means of
obtaining knowledge of facts material to his or her cause of action because the matters are
peculiarly within the knowledge of the adverse party, and the pleader can learn of them only
from statements of others, the pleader may plead what he or she believes to be true as a result of
information (hearsay) the pleader has received." JF. ex reI. Moore v. McKesson Corp., No.

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1:13-CV-OI699-LJO, 2014 WL 202737, at *5 (E.D. Cal. Jan. 17,2014) (quoting Dey v. Cont'l

Cent. Credit, 170 Cal. App. 4th 721, 725 n. 1 (2008)); accord 4 Witkin, Cal. Proc. 5th Plead §
398 (2008). While there is a split of authority, at least one court has held the type of pleading at
issue here to be sufficient: "Whether McKesson distributed the pills which caused the alleged
irYuries is not infonnation within the Plaintiffs' knowledge. Instead, they must obtain this
infonnation from McKesson, the phannacy or other third party. Thus, the allegation that
McKesson distributed the drug at issue, based upon infonnation and belief, is sufficient." J.F. ex

reI. Moore v. McKesson Corp., 2014 WL 202737 at *5. It is at least possible that California
allows infonnation and belief pleading in this situation, and the Court finds the "glimmer of
hope" standard set by the Fourth Circuit met. See D.A. ex rei. Wilson v. McKesson Corp., No.
1: 13-CV -01700-LJO, 2014 WL 202738, at *5 (E.D. Cal. Jan. 17,2014) ("The fact that Plaintiffs
allegations [are] based on infonnation and belief does not make it obvious according to the
settled rules ofthe state that the complaint fails to state a claim.") (internal quotations omitted).
Thus, the Court finds that McKesson is not fraudulently joined as to California Plaintiffs.
In the multi-plaintiff California cases, Plaintiffs from multiple other jurisdictions are
named. Pfizer argues that, under choice-of-law rules, the law of those Plaintiffs' home states
would apply to their claims and that fifteen (15) ofthose jurisdictions categorically rejects
distributor product liability claims. (See Dkt. No. 347 at 32). Plaintiffs disagree that any law
other than the law of California would apply, (Dkt. No. 386 at 12 n.11), but the Court need not
decide the issue. Because there is at least one California Plaintiff in each of these cases and the
Court has found McKesson is not fraudulently joined as to the California Plaintiffs, as long as all
the Plaintiffs are properly joined in the actions, diversity jurisdiction is lacking. In other words,
Pfizer's fraudulent joinder arguments with regard to non-California Plaintiffs are only relevant if

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the Court severs Plaintiffs' claims under the fraudulent misjoinder doctrine. Because the Court
finds Plaintiffs are not fraudulently misjoined, as explained below, diversity jurisdiction is
lacking, and the Court need not consider whether McKesson is fraudulently joined with regard to
non-California Plaintiffs.
4. Plaintiffs Alleged Bad Faith
Pfizer relies on In re Avandia Mktg., Sales Practices & Prod Dab. Litig., No. 07-MD1871,2014 WL 2011597 (E.D. Pa. May 15,2014) ("Avandia 11'), for its final argument. In the
A vandia MDL, a number of California Plaintiffs named McKesson as a defendant. The
fraudulent joinder issue was initially raised early in the MDL, in 2008. At that time, the Avandia
court found that the plaintiffs could have colorable claims against McKesson under California
law and, thus, McKesson was not fraudulently joined. See id at *2; see also In re: Avandia

Mktg., Sales Practices and Products Liability Litig., 624 F. Supp. 2d 396 (E.D.Pa. 2009)
("Avandia 1'). However, the issue was raised again, five years later, in 2014.
In 2014, the Avandia court held that plaintiffs had "no real intention in good faith to
prosecute the action against the defendant or seek a joint judgment," and, thus, held that
McKesson was fraudulently joined. Avandia 11,2014 WL 2011597 at *2 (quoting Boyer v.

Snap-on Tools Corp., 913 F.2d 108, III (3d Cir. 1990)). The court noted that not a single
plaintiff sought any discovery from McKesson in the intervening five years and that, at a hearing
on the matter, counsel could not explain why they had not done so despite the fact that discovery
of the other defendant (the manufacturer) had long been completed. Id. at 3.
Pfizer argues that Plaintiffs' actions in this MDL are analogous to those of the plaintiffs
in Avandia II and that the Court should find that Plaintiffs have "no real intention" to proceed
against McKesson. While Plaintiffs have not conducted discovery of McKesson in this MDL,

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the Court stayed discovery in these actions (with very limited exceptions) pending its ruling on
the motions to remand. (See, e.g., CMO 10, Dkt. No. 292). Thus, Plaintiffs were not allowed to
conduct discovery of McKesson.
Pfizer also argues that Plaintiffs' opposition to jurisdictional discovery exhibits a lack of
intent to prosecute its claims against McKesson. (Dkt. No. 755 at 25). In other words, Pfizer
argues that the existence of federal subject matter jurisdiction turns on whether Plaintiffs have
opposed jurisdictional discovery. This is not the law. Opposing jurisdictional discovery, by
itself, does not amount to a lack of intent to pursue one's claims. Therefore, the Court finds
Avandia II inapplicable here.

C. Fraudulent Misjoinder
The fraudulent misjoinder doctrine asserts that while all the claims pled may be viable,
the claims of a non-diverse plaintiff (or against a non-diverse defendant) are so unrelated to the
remaining causes of action that they cannot be joined in a single suit under Fed. R. Civ. P. 20 or
a similar state rule. Wyatt v. Charleston Area Med. Ctr., Inc., 651 F. Supp. 2d 492, 496 (S.D.W.
Va. 2009); see also In re Prempro Products Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010)
(stating that fraudulent misjoinder occurs "when a plaintiff sues a diverse defendant in state court
and joins a viable claim involving a nondiverse party ... even though the plaintiff has no
reasonable procedural basis to join them in one action because the claims bear no relation to each
other."). The doctrine asserts that these claims must be severed and only the claims of the nondiverse plaintiff (or against the non-diverse defendant) be remanded.
In CMO 83, this Court adopted the fraudulent misjoinder doctrine and adopted a standard
analogous to the fraudulent joinder standard in the Fourth Circuit, holding that to establish
fraudulent misjoinder, the removing party must show (1) outright fraud or (2) that there is no

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possibility that plaintiffs would be able to properly join the claims involving a non-diverse party
in state court. 2 (See CMO 83, Dkt. No. 1681). Thus, the Court must determine whether there is
any possibility that Plaintiffs' claims would be properly joined in California state court.
Under California law, "[a]lI persons may join in one action as plaintiffs if ... [t]hey
assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the
same transaction, occurrence, or series of transactions or occurrences and if any question of law
or fact common to all these persons will arise in the action." Cal. Civ. Proc. Code § 378 (West
2016). While Defendants concede that "the 'common question' requirement may in some cases
be satisfied by plaintiffs who allege the same injury from ingestion of the same medicine,,,3 they
argue that the same transaction or series of transactions requirement cannot be met in such an
instance. (Dkt. No. 759 at 14).4
California courts interpreting California's joinder rule have allowed the joinder of
plaintiffs alleging individualized injuries due to a common scheme by a defendant. For example,
in State Farm Fire & Cas. Co. v. Superior Court, 165 individual homeowners whose homes
were damaged in an earthquake brought an action against their insurer. 45 Cal. App. 4th 1093,
1113 (1996), abrogated on unrelated grounds by Cel-Tech Commc'ns, Inc. v. Los Angeles
Cellular Tel. Co., 973 P.2d 527 (Cal. 1999). The court found that the claims were properly
joined despite the fact that plaintiffs each had separate insurance policies entered into on
different dates, noting that plaintiffs "alleged that State Farm engaged in a systematic practice to
deceive its policy holders with respect to their purchase of earthquake insurance" and "[t]hose
The Court does not repeat its reasoning and analysis for adopting the fraudulent misjoinder
doctrine and this standard but incorporates Sections Band C ofCMO 83 by reference here.

2

Indeed, the creation of this MDL was based in part on the JPML's finding that "these actions
involve common questions of fact." (Dkt. No.1 at 3).

3

4

Pfizer incorporated its briefing from the Hoffman case. (Dkt. No. 755 at 33).
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allegations clearly reflect a claim containing common facts central to the alleged deception." Id.
In State Farm, plaintiffs also alleged 15 different types of improper claims handling processes,
but these differences were not enough to constitute improper joinder. ld. at 1099, 1113-14.
Similarly, in Anaya v. Superior Court, over 200 employees and their family members
claimed injuries resulting from exposure to hazardous chemicals over a period of years at their
place of employment. 160 Cal. App. 3d 228, 231, 233 (1984). The court found these claims
properly joined, stating that "[t]he fact that each employee was not exposed on every occasion
any other employee was exposed does not destroy the community of interest linking these
petitioners." Id. at 233.
Finally, in Petersen v. Bank ofAmerica, the court found joinder of 965 mortgage
borrowers proper where they alleged the lender used inflated real estate appraisals to increase the
amount ofthe loans and misled the borrowers as to their ability to repay. 232 Cal. App. 4th 238,
252 (2014), review denied (Mar. 25,2015). The court found that "[w]hile the individual
damages among these 965 plaintiffs of course vary widely, that is not the salient point ... The
salient point is that liability is amenable to mass action treatment." Id. at 253 (emphasis in
original). The court went on to state policy reasons for its decision. First "[t]o require these
plaintiffs to file separately not only clogs up the courts, but also deprives them of economies of
scale otherwise available ... , particularly in regard to the clearly common proof bearing on
[defendant's actions]." Id. Second, the court found mass joinder conserved judicial resources.

ld. at 253-54.
While each of these cases might be able to be distinguished factually in some way, given
this precedence, the Court finds that there is at least a possibility that Plaintiffs in this action are
properly joined under California law. Therefore, Plaintiffs are not fraudulently misjoined.

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D. Forum Defendant Rule
Plaintiffs also argue that the forum defendant rule barred removal of these actions. Title
28 U.S.C. § 1441(b)(2), known as the "forum defendant rule" or "home-state defendant rule,"
provides that "[a] civil action otherwise removable solely on the basis of [diversity jurisdiction]
may not be removed if any of the parties in interest properly joined and served as defendants is a
citizen of the State in which such action is brought." By its own terms the rule only applies
where diversity jurisdiction exists. s See, e.g., Lively v. Wild Oats Markets, Inc., 456 F.3d 933,
939 (9th Cir. 2006) ("Separate and apart from the statute conferring diversity jurisdiction, 28
U.S.C. § 1332, § 1441(b) confines removal on the basis of diversity jurisdiction to instances
where no defendant is a citizen of the forum state."); Aguayo v. AMCO Ins. Co., 59 F. Supp. 3d
1225, 1248 (D.N.M. 2014) ("The forum-defendant rule applies only to cases removed under
diversity jurisdiction."). Because the Court has found diversity jurisdiction lacking, the rule is
inapplicable, and the Court does not address it further.
E. CAFA
Defendants assert federal jurisdiction under the Class Action Fairness Act (CAFA).
Under CAFA, federal courts have jurisdiction over class actions if there is minimal diversity and
the amount in controversy, when aggregated, exceeds $5 million. 6 CAFA specifically provides
that, for the purposes of the statute, "a mass action shall be deemed to be a class action,"
removable under the statute if it meets the other requirements of the statute. Id at §
1332(d)(l1)(A). The term "mass action" is defined as "any civil action ... in which monetary
relief claims of 100 or more persons are proposed to be tried jointly on the ground that the
5 The rule specifically also does not apply to cases removed under the Class Action Fairness Act,
which Defendants have also asserted as a basis for jurisdiction. See 28 U.S.C. § 1453(b).

There are additional requirements not relevant here, such as the proposed class must have at
least 100 members. See 28 U.S.C. § 1332(d).

6

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plaintiffs' claims involve common questions oflaw or fact." Id. at § 1332(d)(II)(B)(i). The
term specifically does not include actions in which "claims have been consolidated or
coordinated solely for pretrial proceedings." Id. at § 1332(d)(11 )(B)(ii)(IV). The parties dispute
whether the cases removed here are a "mass action" within the meaning of CAFA.
However, Plaintiffs argue that the Court need not reach the issue because even if the
cases are mass actions, the CAFA statute prevents their transfer to an MDL and the cases should
be remanded back to district courts in California. (Dkt. No. 796 at 7-9). This Court agrees.
CAF A explicitly provides that any "mass actions" removed under CAFA "shall not
thereafter be transferred to any other court pursuant to section 1407 [the MDL statute], or the
rules promulgated thereunder, unless a majority of the plaintiffs in the action request transfer
pursuant to section 1407." 28 U.S.C. § 1332(d)(11)(C)(I). The JPML has held that this statute
only restricts the transfer of mass actions "made removable only pursuant to CAF A." In re

Darvocet, Darvon & Propoxyphene Prod Liab. Litig., 939 F. Supp. 2d 1376, 1381 (JPML
2013). In other words, CAFA "does not prohibit Section 1407 transfer of an action removed
pursuant to CAFA's mass action provision so long as another ground for removal is asserted."

Id. at 1381. Thus, the JPML transferred these actions to the MDL because Defendants asserted
diversity jurisdiction as well as CAFA jurisdiction. See In re Lipitor (Atorvastatin Calcium)

Mktg., Sales Practices & Prod Liab. Litig. (No. II), No.MDL 2502, 2015 WL 7769022, at *1
(JPML June 8, 2015) (transferring similarly situated California actions to this MDL). However,
this Court has now held that diversity jurisdiction is lacking, and the only possible basis for
federal jurisdiction is CAFA.
The question, then, is what happens to a case when the transferee Court (the MDL court)
determines that no basis for jurisdiction exists other than (possibly) CAFA. Plaintiffs argue that

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the case should be remanded back to transferor court, in accord with Congressional intent.
Defendants argue that statute only restricts initial transfer and that once the case is in the MDL,
the issue is moot, and that any attempt to transfer the case back would be "overruling" the JPML.
The Magistrate Judge found that transfer of the cases back to California district courts
was proper. "Otherwise, the Defendants in any case would be able to circumvent the consent
requirement of § 1332(d)(11 )(C)(I) simply by adding non-CAF A grounds for removal that are
frivolous." (Dkt. No. 715 at 23). Thus, the Magistrate Judge found that the Court should suggest
remand of these actions back to California district courts.
After the Magistrate Judge's recommendation in this MDL, the Darvocet MDL court
reached the same conclusion in a well-reasoned opinion. In re Darvocet, 106 F. Supp. 3d 849
(B.D. Ky. 2015), appeal dismissed (Nov. 17,2015), motion to certifY appeal granted, No. 2:11MD-2226-DCR, 2015 WL 4385926 (B.D. Ky. July 14,2015), leave to appeal denied (Nov. 17,
2015). The Darvocet court reasoned:
Without the benefit of precedent, this Court must determine the better of two
potential outcomes. The first outcome is that the cases remain in the transferee
court, despite being removed solely on the basis of CAFA's mass action
provision. Although more efficient for pretrial proceedings, this cannot be the
correct result, as it would allow parties to bypass § 1332(d)(II)(C)(1) simply by
asserting meritless grounds for removaL Just as cases are "not transferrable
merely because the defendant has cited to the mass action provision as an
additional ground in its notice of removal," (MDL Record No. 2596, p. 4] cases
are not bound to adjudication in a transferee court merely because the defendant
has cited to additional grounds that later prove insufficient.
The second potential outcome is JPML remand of mass actions to their original
federal courts following a transferee court's finding that removal was proper
solely on CAFA grounds. This result, although less efficient, preserves the effect
ofCAFA's prohibition on transfers. It does not require the JPML panel to
impermissibly consider the validity of jurisdictional grounds asserted, but merely
affords the transferee court an opportunity to determine jurisdiction and, where
appropriate, relinquish cases that are not subject to transfer under CAFA. The
JPML has noted and the parties agree that "the language of Section
1332(d)(11)(C)(i) clearly circumscribes the Panel's authority to transfer an action
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removed solely as a mass action." [MDL Record No. 2596, p. 2] Nothing in the
JPML's decision in In re Darvocet suggests that a case that would otherwise have
been precluded from MDL transfer under CAFA must be retained by a transferee
court merely because the defendant has cited additional, meritless grounds in its
notice of removal. See 939 F.Supp.2d at 1381. Moreover, if the grounds for
removal had originally been determined by the transferor courts, §
1332(d)(lI)(C)(l) would have precluded transfer to this Court. The undersigned
finds no reason to reach a different result simply because of the cases' procedural
posture at the time of transfer.

Id at 858-59.
This Court agrees with the reasoning of In re Darvocet. Congress struck a compromise
in CAFA: federal courts would have jurisdiction over mass actions but these actions could not be
transferred to an MDL unless a majority of the plaintiffs so requested. Under Defendants'
theory, a defendant could add a frivolous jurisdictional ground to evade this statute, and no court
could review it. Because the JPML, the only body with authority to transfer a case, also lacks
authority to address the merits of subject matter jurisdiction, a defendant's assertion of nonCAFA jurisdiction, no matter how frivolous, requires transfer to an MDL without court review
and then, once in the MDL, the case must stay there regardless ofthe transferee court's
determinations regarding subject matter jurisdiction. The Court finds such machinations
contrary to Congressional intent. Therefore, this Court will suggest that the JPML remand these
cases to the federal district courts in California. Furthermore, the Court's suggestion of remand
will provide the JPML with an opportunity to address this question directly, as it is the final
arbiter of whether cases should be remanded to the transferor courts. See, e.g., Pinney v. Nokia.
Inc., 402 F.3d 430, 452 (4th Cir. 2005) (noting that only the JPML has the authority to remand a
case to the transferor court).

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F. Timeliness
Plaintiffs contend that nine of the California cases (the ones at issue in the motion to
remand at Dkt. No. 269) were not timely removed by Defendants because they were not removed
within 30 days of being served with the Complaint. Defendants argue that the removal was
timely under the "revival" rule because the grant of the coordination petition by the California
Judicial Council, followed by the filing of an additional 3,000 claims substantially changed the
nature of the suit and triggered the ability to remove the case under CAFA. The Court does not
reach this issue. The Court has left the ultimate decision of whether CAF A jurisdiction exists to
the California district courts and, therefore, leaves this related issue to those courts as well.

G. Conclusion
For the reasons stated above, the Court GRANTS IN PART Plaintiffs' Motions to
Remand (Dkt. Nos. 267, 268,269). The Court finds that it lacks diversity jurisdiction over these
actions and that the only possible ground for federal jurisdiction is CAF A. Therefore, for the
reasons stated above, the Court New the JPML that these actions be remanded to
SSUGGESTS
to Text
SUGGESTS
their transferor courts for further proceedings.
AND IT IS SO ORDERED.

Richard M
G gel
United States Dis rict Court Judge
November ~, 2016
Charleston, South Carolina

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