Emana et al vs McKesson
Filing
19
ORDER GRANTING MOTION TO REMAND, DENYING MOTION TO STAY, AND VACATING HEARING by Judge William Alsup [denying 12 Motion to Stay; granting 15 Motion to Remand]. (whasec, COURT STAFF) (Filed on 8/14/2013)
1
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
CONNIE EMANA, et al.,
11
For the Northern District of California
United States District Court
10
12
13
Plaintiffs,
No. C 13-03157 WHA
v.
15
MCKESSON CORPORATION, a
California corporation, SMITHKLINE
BEECHAM CORPORATION d/b/a/
GLAXOSMITHKLINE LLC, a
corporation, and DOES 1–100, inclusive,
16
Defendants.
14
ORDER GRANTING
MOTION TO REMAND,
DENYING MOTION TO
STAY, AND VACATING
HEARING
/
17
18
In this pharmaceutical products-liability action, plaintiffs move to remand to state court
19
for lack of federal jurisdiction while defendants move to stay all proceedings pending potential
20
transfer to an MDL. For the reasons stated below, plaintiffs’ motion to remand is GRANTED
21
and defendants’ motion to stay is DENIED. The hearings on September 5 and 12, 2013, are
22
VACATED.
23
Plaintiffs filed a complaint in the Superior Court of the State of California for the County
24
of San Francisco in June 2013 for alleged injuries from the use of Avandia, a prescription
25
pharmaceutical used to treat type-2 diabetes. Among other defendants, plaintiffs filed suit
26
against McKesson Corporation, a California-based pharmaceutical distributor. Defendant
27
GlaxoSmithKline LLC removed the action to federal court on fraudulent joinder grounds and
28
moved to stay this action pending transfer to the Avandia MDL in the United States District
1
Court for the Eastern District of Pennsylvania. Plaintiffs then filed a motion to remand, arguing
2
that this Court should first consider the merits of its motion before entertaining any stay of these
3
proceedings.
4
Our court of appeals has not yet addressed whether courts must first decide the merits
5
of a motion to remand before determining whether to stay the proceedings. Generally speaking,
6
a stay is warranted if this would serve judicial economy. See, e.g., In re Iphone Application
7
Litig., No. 10-5878, 2011 WL 2149102, at *2 (N.D. Cal. May 31, 2011) (Judge Lucy Koh).
8
In similar actions involving Avandia, courts in this district have granted a stay. Those courts
9
found that doing so would promote judicial economy because the MDL judge has addressed
issues of “fraudulent joinder, fraudulent misjoinder of plaintiffs, the forum defendant rule,
11
For the Northern District of California
United States District Court
10
and questions relating to removal by defendants who have not yet been served.” See, e.g., Poff v.
12
McKesson, No. 13-3115, 2013 WL 3949207, at *2 (N.D. Cal. July 30, 2013) (Judge Jeffrey
13
White); see also Flores v. McKesson, No. 13-3153 (N.D. Cal. Aug. 2, 2013) (Judge Jon Tigar);
14
Alvarez v. McKesson, No. 13-3112 (N.D. Cal. July 24, 2013) (Judge Thelton Henderson).
15
Given, however, the circumstances of the instant action, namely that the MDL has already
16
remanded similar actions because it found that McKesson had not been fraudulently joined,
17
this order finds differently.
18
The question of whether a motion to stay, pending transfer to an MDL, should be decided
19
before a motion to remand occurs frequently. It is best to rule in the way that most furthers
20
judicial economy, unless this would unreasonably prejudice one of the parties. Thus, when a
21
jurisdictional issue has not yet arisen before the MDL, a motion to stay has been denied and the
22
action remanded to state court because burdening the MDL with a new jurisdictional issue would
23
not be in the interest of judicial economy. Marble v. Organon, No. 12-2213, 2012 WL 2237271,
24
at *3 (N.D. Cal. June 15, 2012). Where, however, other cases pending before the MDL have
25
raised the same jurisdictional issue, a stay was granted because it would be in the interest of
26
judicial economy to have all these issues decided together. See, e.g., Addison v. Bristol-Meyers
27
Squibb Co., No. 13-2166, 2013 WL 3187859, at *1 (N.D. Cal. June 21, 2013).
28
2
1
Here, the MDL has already ruled on the jurisdictional issue at stake. The MDL found
2
that “McKesson is not fraudulently joined as a defendant in this action . . . such that remand is
3
required both pursuant to the forum defendant rule and for lack of subject matter jurisdiction.”
4
In re Avandia, 624 F. Supp. 2d 396, 421 (E.D. Pa. 2009) (Judge Cynthia Rufe). Under these
5
circumstances, judicial economy would not be served by a transfer to the MDL only to have the
6
MDL court remand the action back to state court.
7
GSK concedes that McKesson was served with the original complaint on July 1, i.e.,
Rufe has already found that in this specific fact pattern, a remand is proper: “the case was
10
removed from California court after McKesson was properly joined and served, and hence
11
For the Northern District of California
before it removed the action to federal court on July 9 (Dkt. No. 1 at 4). MDL Judge Cynthia
9
United States District Court
8
in violation of the forum defendant rule.” In re Avandia, 624 F. Supp. 2d at 421.
12
This order is not persuaded by GSK’s contention that it would suffer prejudice if a stay
13
is denied when it removed the action from state court despite the MDL’s ruling that such
14
removal is improper. To the contrary, it would cause undue prejudice to plaintiffs to be forced to
15
file and argue motions to remand in two different courts before being sent back to square one —
16
state court, where this action belongs.
17
This order is likewise unpersuaded by GSK’s argument that claims against McKesson are
18
preempted by the Supreme Court’s decision in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011).
19
A preemption defense goes to the merits of a plaintiff’s case and cannot overcome the strong
20
presumption against removal jurisdiction. Hunter v. Philip Morris USA, 582 F.3d 1039, 1045
21
(9th Cir. 2009). GSK also argues that this action is nonetheless removable under Section 1332.
22
Not so. The MDL has decided that in actions like this one, McKesson was not fraudulently
23
joined. Complete diversity as required by Section 1332(2)(a) is therefore lacking.
24
25
26
27
28
3
1
GSK will not be granted a stay since the MDL has already made clear this action should
2
be remanded. GSK’s motion to stay is therefore DENIED and plaintiffs’ motion to remand is
3
GRANTED. The September 5 and 12 hearings are VACATED.
4
5
IT IS SO ORDERED.
6
7
Dated: August 14, 2013.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
8
9
11
For the Northern District of California
United States District Court
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?