Caouette et al v. Bristol-Myers Squibb Company et al

Filing 62

ORDER by Judge Edward M. Chen denying 60 Defendant's Motion for Leave to File a Motion for Reconsideration (emclc1, COURT STAFF) (Filed on 8/17/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES CAOUETTE, et al.,

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Plaintiffs,

For the Northern District of California

United States District Court

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No. C-12-1814 EMC
RELATED TO

v.
BRISTOL-MYERS SQUIBB COMPANY, et
al.,

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Defendants.
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No. C-12-1815 EMC
No. C-12-1816 EMC
No. C-12-1818 EMC
No. C-12-1819 EMC
No. C-12-1820 EMC
No. C-12-1821 EMC
No. C-12-1822 EMC

AND ALL RELATED ACTIONS.

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ORDER DENYING DEFENDANT’S
MOTION FOR LEAVE TO FILE A
MOTION FOR RECONSIDERATION

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(Docket No. 60)

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__________________________________/

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Bristol-Myers has filed a motion, asking the Court for leave to file a motion for

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reconsideration of the Court’s order granting Plaintiffs’ motions to remand.1 Having considered the

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parties’ briefs and accompanying submissions, the Court hereby DENIES the request for relief.

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I.
A.

DISCUSSION

Jurisdiction
Plaintiffs argue first that Defendants’ motion for relief should be denied because the Court lacks

jurisdiction to entertain the motion. The Court agrees.

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The Court uses the term “Plaintiffs” to refer to all plaintiffs in the eight related actions.

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Title 28 U.S.C. § 1447(d) provides that “[a]n order remanding a case to the State court from

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which it was removed is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d) (emphasis

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added). In Seedman v. United States District Court, 837 F.2d 413 (9th Cir. 1988), the Ninth Circuit

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noted that “[t]his language has been universally construed to preclude not only appellate review but also

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reconsideration by the district court. Once a district court certifies a remand order to state court it is

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divested of jurisdiction and can take no further action on the case.” Id. at 414. In the case at bar, the

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Clerk of the Court certified the remand order prior to the filing of Bristol-Myers’s motion.2 See Docket

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No. 59 (letter certifying remand order). Accordingly, the Court has no jurisdiction to consider Bristol-

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Myers’s motion.
B.

Civil Local Rule 7-9(b)(3)

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For the Northern District of California

United States District Court

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Even if the Court did have jurisdiction, Bristol-Myers would fare no better. Under the Civil

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Local Rules, a party may move for leave to file a motion for reconsideration only where, e.g., there is

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a “manifest failure by the Court to consider material facts or dispositive legal arguments which were

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presented to the Court before such interlocutory order.” Civ. L.R. 7-9(b)(3). In the case at bar, Bristol-

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Myers contends that the Court failed to consider a dispositive legal argument. More specifically,

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Bristol-Myers argues that the Court should have decided the issue of whether the design defect claim

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against McKesson was preempted pursuant to Pliva v. Mensing, 131 S. Ct. 2567 (2011), because this

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was an independent basis to support fraudulent joinder of McKesson.

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The problem for Bristol-Myers is that the Court recognized that this was an independent

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argument. Even though this was an independent argument, the bottom line is that Bristol-Myers also

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articulated another argument as to why the design defect claim was not viable against McKesson (i.e.,

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based on the California Supreme Court’s decision in Brown v. Superior Court, 44 Cal. 3d 1049 (1988)).

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Once Bristol-Myers articulated the Brown argument, that argument had to be resolved by the state court

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under the Ninth Circuit’s decision in Hunter v. Philip Morris USA, 582 F.3d 1039 (9th Cir. 2009).

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Bristol-Myers cannot have it both ways – it could have foregone making the Brown argument but it did

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The Court acknowledges that both the certification and the filing of Bristol-Myers’s motion
took place on the same day – i.e., August 13, 2010. Nonetheless, the certification preceded the filing
of the motion by an hour and a half.

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not; thus, it cannot now ask the Court to pretend that the Brown argument was not made and rule solely

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on the basis of the Mensing preemption argument.

at least for purposes of a remand motion. More specifically, it stated that it was not obvious that there

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would be preemption, citing both Bartlett v. Mutual Pharmaceutical Co., 678 F.3d 30 (1st Cir. 2012),

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and Halperin v. Merck, Sharpe & Dohme Corp., No. 11 C 9076, 2012 U.S. Dist. LEXIS 50549 (N.D.

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Ill. Apr. 10, 2012).3 See Docket No. 56 (Order at 7). Obviousness was the appropriate standard to reply

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because of the procedural posture of the case – i.e., in a remand motion, a court must consider, in effect,

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whether it is obvious that there is no cause of action against the allegedly fraudulently joined resident

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defendant. See Hunter, 582 F.3d at 1042 (stating that “[j]oinder is fraudulent [i]f the plaintiff fails to

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For the Northern District of California

Furthermore, the Court notes that it did address the merits of the Mensing preemption argument,

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United States District Court

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state a cause of action against a resident defendant, and the failure is obvious according to the settled

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rules of the state”) (internal quotation marks omitted); 15-102 Moore’s Fed. Prac. – Civ. § 102.21[5][a]

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(stating that “[j]oinder will not be deemed fraudulent unless there clearly can be no recovery under state

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law on the cause alleged or on the facts as they exist when the petition to remand is heard”). Thus, in

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Halperin, the court stated that, “even if we were inclined to agree with [the distributor] about the reach

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of the Mensing decision, we are bound to resolve such an open question of law in Plaintiffs’ favor when

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assessing the remand motion.” Halperin, 2012 U.S. Dist. LEXIS 50549, at *11.

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The Court thus concludes that, even if it had jurisdiction over the case, Bristol-Myers’s motion

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should be denied because Bristol-Myers has failed to meet the standard laid out in Civil Local Rule 7-

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9(b)(3).

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In Halperin, the court explained that, for a claim of design defect (as opposed to failure to
warn), so long as the (brand name) manufacturer is liable, then everyone else who is a part of the chain
of distribution is viable “regardless of culpability, duty, knowledge, or fault.” Halperin, 2012 U.S. Dist.
LEXIS 50549, at *11. In this sense, there would be – as Plaintiffs have previously contended –
“derivative” liability.

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II.

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CONCLUSION

For the foregoing reasons, Bristol-Myers’s motion for leave to file a motion to reconsider is
denied.
This order disposes of Docket No. 60.

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IT IS SO ORDERED.

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Dated: August 17, 2012

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EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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