Little et al v. Pfizer Inc.

Filing 138

ORDER Granting Plaintiffs' Motions to Remand. Signed by Judge Edward M. Chen on 8/9/2017. (emcsec, COURT STAFF) (Filed on 8/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LORETTA LITTLE, et al.,

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Plaintiffs,

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v.

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PFIZER INC, et al.,
Defendants.

RELATED TO
Case No.
Case No.
Case No.
Case No.

14-cv-01195-EMC
14-cv-01196-EMC
14-cv-01204-EMC
14-cv-01488-EMC

ORDER GRANTING PLAINTIFFS’
MOTIONS TO REMAND

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For the Northern District of California

United States District Court

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Case No. 14-cv-01177-EMC

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The above-referenced case (Little) and four related cases (Stark, Rouda, Peters, and Davis,

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respectively Nos. C-14-1488, C-14-1195, C-14-1196, and C-14-1204)1 were previously part of a

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multidistrict litigation (“MDL”), in which Pfizer, Inc. and McKesson Corporation were sued on

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the ground that Plaintiffs had developed type 2 diabetes as a result of their taking Pfizer‟s

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prescription medication Lipitor.
Currently pending before the Court is Plaintiffs‟ request for a remand. According to

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Plaintiffs, Pfizer‟s removal of their cases from state to federal court based on the “mass action”

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provision of the Class Action Fairness Act (“CAFA”) was improper. Having considered the

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parties‟ briefs and accompanying submissions, the Court hereby GRANTS the motions to remand

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in all five cases.

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There are fifty-six named plaintiffs in the Little case. In each of the four related cases, there is
only one named plaintiff. For ease of reference, the Court shall refer to the plaintiffs in all five
cases as “Plaintiffs.”

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I.

FACTUAL & PROCEDURAL BACKGROUND

Plaintiffs filed their cases in state court in 2014. Pfizer removed the cases to federal court,

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asserting both traditional diversity jurisdiction (predicated on alleged fraudulent joinder of

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McKesson) and CAFA mass action jurisdiction. Plaintiffs‟ cases, along with other cases not

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before this Court, were subsequently transferred to a MDL.

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In November 2016, the judge in the MDL granted motions to remand in the California

lacked traditional diversity jurisdiction over the cases and that the only possible ground for federal

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jurisdiction was mass action jurisdiction pursuant to CAFA. The MDL court recommended to the

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Judicial Panel on Multidistrict Litigation (“JPML”) that the actions be remanded to the transferor

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For the Northern District of California

cases (including but not limited to the cases before this Court). The MDL court determined that it

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United States District Court

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courts to decide the CAFA mass action issue. The JPML followed that advice and thus the five

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cases above were transferred back to the Northern District of California.

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Before this Court, the parties agreed to a stay pending a decision by Judge Carney of the

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Central District of California on the CAFA mass action issue. (The transfer of cases from the

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MDL back to the Central District involved many more plaintiffs – more than four thousand.) In

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May 2017, Judge Carney issued his decision granting the plaintiffs‟ motion to remand. Judge

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Carney subsequently denied Pfizer‟s request for a stay of further proceedings pending an appeal to

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the Ninth Circuit. Pfizer has appealed Judge Carney‟s rulings – filing both a traditional appeal

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pursuant to 28 U.S.C. § 1291 and an “expedited” appeal pursuant to 28 U.S.C. § 1453(c). The

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Ninth Circuit has not acted and appears in effect to have denied the § 1453(c) appeal. See 28

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U.S.C. § 1453(c)(4) (providing that, “[i]f a final judgment on the appeal under paragraph (1) is not

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issued before the end of the period described in paragraph (2), including any extension under

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paragraph (3), the appeal shall be denied”).

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In June 2017, this Court declined to stay its own cases pending Pfizer‟s appeals. It further

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ordered Pfizer to show cause as to why there should not be a remand of the five cases. Pfizer has

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now responded (and McKesson has joined that response),2 and Plaintiffs have filed a reply.
II.

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A.

DISCUSSION

Section 1332(d)(11)

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Under CAFA, district courts have subject matter jurisdiction over certain class actions. In

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addition, district courts have subject matter jurisdiction over “mass actions” that are deemed to be

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such class actions. Title 28 U.S.C. § 1332(d)(11) provides as follows:

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(A)

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(B)

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(i)

As used in subparagraph (A), the term “mass action”
means any civil action (except a civil action within
the scope of section 1711(2) [28 U.S.C. § 1711(2)])
in which monetary relief claims of 100 or more
persons are proposed to be tried jointly on the
ground that the plaintiffs‟ claims involve common
questions of law or fact, except that jurisdiction shall
exist only over those plaintiffs whose claims in a
mass action satisfy the jurisdictional amount
requirements under subsection (a).

(ii)

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As used in subparagraph (A), the term “mass action”
shall not include any civil action in which –

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For the Northern District of California

United States District Court

For purposes of this subsection and section 1453 [28 U.SC. §
1453], a mass action shall be deemed to be a class action
removable under paragraphs (2) through (10) if it otherwise
meets the provisions of those paragraphs.

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....

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(II)

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the claims are joined upon motion of a
defendant;

(IV)

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the claims have been consolidated or
coordinated solely for pretrial proceedings.

....

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28 U.S.C. § 1332(d)(11) (emphasis added). As reflected by the bolded language above, one

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critical component of the mass action provision that is that there must be a proposal to try jointly

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the monetary claims of 100 or more plaintiffs.
Ninth Circuit case law has provided some guidance as to what constitutes a proposal for a

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Although Pfizer has filed a response in each of the cases before the Court, the responses are
largely the same.
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joint trial. For example:
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The proposal for a joint trial cannot be made by the defendant. See Tanoh v. Dow

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Chemical Co., 561 F.3d 945, 953 (9th Cir. 2009) (noting that Ҥ 1332(d)(11) specifically

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provides that the term mass action shall not include any civil action in which . . . the claims

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are joined upon motion of a defendant[;] Congress anticipated, in other words, that

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defendants like Dow might attempt to consolidate several smaller state court actions into

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one mass action, and specifically directed that such a consolidated action was not a mass

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action eligible for removal under CAFA”) (internal quotation marks and emphasis

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omitted).
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“[P]laintiffs are the „masters of their complaint‟ and do not propose a joint trial simply by
structuring their complaints so as to avoid the 100-plaintiff threshold.” Corber v.

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For the Northern District of California

United States District Court

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Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218, 1223 (9th Cir. 2014) (en banc); see also

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Briggs, 796 F.3d at 1050 (quoting Eleventh Circuit decision for the proposition that

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“„plaintiffs have the ability to avoid § 1332(d)(11)(B)(i) jurisdiction by filing separate

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complaints naming less than 100 plaintiffs and by not moving for or otherwise proposing

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joint trial in the state court‟”).
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A proposal for a joint trial need not be explicit; “implicit proposals may trigger CAFA‟s

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removal jurisdiction.” Briggs, 796 F.3d at 1048. Nevertheless, “[a] proposal for purposes

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of CAFA‟s mass action jurisdiction, even an implicit proposal, is a „voluntary and

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affirmative act,‟ and an „intentional act.‟ It is „not a mere suggestion‟ [e.g., conduct

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suggesting a joint trial is insufficient], and it is not a mere prediction.” Id.
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Id.

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“[A] request for a joint trial „must be made to a court that can effect the proposed relief.‟”

B.

JCCP Proceedings
Pfizer takes the position that a sufficient number of proposals for a joint trial (i.e., 100 or

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more) were made in state court proceedings. The critical state court proceedings relate to a

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Judicial Council Coordinated Proceeding (“JCCP”). The relevant background on the JCCP is as

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follows:
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On August 16, 2013, 3 plaintiffs who had filed Lipitor actions in state court asked the
California Judicial Council to have their cases coordinated in a JCCP.

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On September 25, 2013, 21 plaintiffs filed an amended coordination petition. On

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December 6, 2013, the Judicial Council granted the coordination petition but included only

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the original 3 plaintiffs.
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On January 13, 2014, the judge presiding over the JCCP granted an add-on petition,

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bringing the number of plaintiffs in the JCCP up to 7 total. Subsequently, another add-on

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petition was granted, which brought the total number of plaintiffs in the JCCP up to 9. No

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additional plaintiffs have been added to the JCCP. Thus, there are only 9 plaintiffs in the
JCCP.

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However, there are other plaintiffs who have asked to be added to the JCCP (but no ruling

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For the Northern District of California

United States District Court

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was ever made). If those plaintiffs are counted, then altogether there are 65 plaintiffs who

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are in the JCCP or who have asked to be in the JCCP. (The 65 includes all 21 plaintiffs

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who filed the amended petition for coordination on September 25, 2013.)

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C.

Judge Carney‟s Decisions
As noted above, Judge Carney (in the Central District of California) granted the plaintiffs‟

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motions to remand. In the cases before him, he concluded that, while there had been some

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proposals for a joint trial by some plaintiffs via the JCCP, those plaintiffs numbered fewer than

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100.

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More specifically, there were 65 plaintiffs who had proposed a joint trial – through the

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original or amended petition for a JCCP and through add-on petitions following coordination.

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Those plaintiffs had “voluntarily and affirmatively” proposed a joint trial. Carney Op. No. 1, at

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11; see also Carney Op. No. 1, at 9-10 (noting that the amended petition for a JCCP “repeatedly

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noted the need to avoid inconsistent judgments and rulings on issues of liability”; there was no

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limitation to pretrial matters).

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But Judge Carney refused to consider the thousands of other plaintiffs who had filed
similar suits and whom the 65 plaintiffs argued to the state court should be added to the

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coordinated proceedings.3 “[A]bsent add-on petitions or similar affirmative actions or definitive

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commitments by [the thousands of] plaintiffs or their attorneys, they have not proposed a joint

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trial.” Carney Op. No. 1, at 11.
Judge Carney acknowledged that at least some of the thousands of plaintiffs were

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represented by the same attorneys representing the 65 plaintiffs. But he refused to impute the joint

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trial proposal of the 65 plaintiffs to those other plaintiffs.

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[I]t is the identities and actions of the clients, not that of the
attorneys, that matters. JCCP Counsel have not acted on behalf of
any plaintiffs beyond the aforementioned sixty-five – JCCP Counsel
have merely represented that they anticipate many additional,
unspecified cases will be coordinated. Neither the actions of the
sixty-five plaintiffs nor JCCP Counsel can be imputed to the
remaining plaintiffs here.

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Carney Op. No. 1, at 13 (emphasis in original).
Pfizer protested that numerous plaintiffs beyond the 65 had in fact proposed a joint trial

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For the Northern District of California

United States District Court

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because, in the civil cover sheets attached to their complaints, they checked the box stating that the

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case was “„complex‟ pursuant to California Rule[] of Court 3.400 because [it was] subject to

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„[c]oordination with related actions pending in one or more courts in other counties, states, or

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countries, or in federal court.‟” Carney Op. No. 1, at 14 (quoting civil cover sheet). But Judge

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Carney was not persuaded: “[T]hese actions are all administrative in nature and merely alert the

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clerk‟s office to the possibility of coordination in order to assist with case sorting and

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

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and bound by a proposal for a joint trial.” Carney Op. No. 1, at 14 (emphasis in original).
Judge Carney also underscored that there are plausibly

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many legitimate reasons for not wanting a joint federal trial. For
example, some plaintiffs might seek to distance themselves from
those with seemingly weaker claims or from those who will be
preoccupied with defenses unique to them. Other plaintiffs who

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At a February 2014 status conference before Judge Johnson, the plaintiffs in the coordinated
proceeding advised that, as of the previous day, there were 54 cases in California with more than
1,800 plaintiffs in the complaints. The plaintiffs also submitted a table of the cases to Judge
Johnson and indicated that they wanted to get the cases added on to the coordinated proceeding as
soon as possible. See Resp. at 4-5; see also Docket No. 1-8 (table submitted to Judge Johnson).
Three of the five cases before this Court (Rouda, Peters, and Davis) were listed on the table. Stark
was not listed on the table because it was not filed until after the status conference.
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have suffered more severe injuries or consequences, such as stroke,
blindness, and amputation, or who are bringing suit on behalf of a
deceased family member, may not wish to have their claims tried
jointly with patients who have had milder injuries or consequences.
The Court will not speculate, nor base its jurisdictional decision, on
whether thirty-five or more plaintiffs will likely take voluntary and
affirmative action to be part of and bound by a proposal for a joint
trial.

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Carney Op. No. 1, at 14-15.
After Judge Carney granted the plaintiffs‟ motions to remand, Pfizer moved for a stay

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pending appeal of the decision to the Ninth Circuit. Judge Carney denied the stay motion. In his

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decision, he reiterated that

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[i]t is not sufficient that less than 100 plaintiffs state that other
plaintiffs will want a joint trial as well. Every one of the 100
plaintiffs must take affirmative action to be part of and be bound by
a proposal for a joint trial. To conclude otherwise would be unfair
to those plaintiffs who want nothing to do with a joint trial, and
unfair to the state of California, which has a significant interest in
addressing injuries allegedly suffered by its citizens and setting the
appropriate level of liability for companies conducting business
within its borders.

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For the Northern District of California

United States District Court

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Carney Op. No. 2, at 5 (emphasis in original).
Judge Carney acknowledged Pfizer‟s argument that, “in Corber, the Ninth Circuit [en

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banc] „held that mass action jurisdiction extended both to other cases filed by the counsel who

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filed the coordination petition, and even to cases filed by Plaintiffs‟ counsel with no involvement

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in the petition at all.‟” Carney Op. No. 2, at 5. But he was not convinced, pointing out that

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[t]he issue of whether the 100-plaintiff threshold had been met was
never raised, argued, or addressed in Corber. Corber only analyzed
the narrow question of whether the language of the coordination
petitions was sufficient to constitute proposals for a joint trial.
Corber concluded that because the petitions sought coordination
“for all purposes” and stressed the need for coordination and
avoiding inconsistent decisions on issues of “liability, allocation of
fault and contribution, as well as the same wrongful conduct of
defendants,” the petitions proposed a joint trial.

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Carney Op. No. 2, at 6. Judge Carney added that, while “Corber never addressed the

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significance” of oral representations about additional cases that would or would likely be

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coordinated,

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Briggs [a subsequent Ninth Circuit decision] did shed light on this
issue, explaining that a proposal for a joint trial at the very least
must be a voluntary and affirmative act. The Court therefore
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concluded that under Briggs, JCCP Counsel‟s oral representations
were merely predictions or suggestions, which are insufficient to
trigger the 100-plaintiff threshold.

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Carney Op. No. 2, at 6.

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Finally, Judge Carney reiterated that the fact that “the majority of plaintiffs checked a box

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on their civil cover sheets indicating that the case would be coordinated” was not enough to meet

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the 100-plaintiff threshold. Carney Op. No. 2, at 7. “[T]hese actions fall short of the voluntary

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and affirmative action standard laid out in Briggs. They are merely administrative actions. They

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are not clear and definitive commitments by the plaintiffs to be part of and bound by a proposal for

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a joint trial.” Carney Op. No. 2, at 7.

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D.

In arguing against remand in the instant cases, Pfizer rehashes arguments made to Judge

For the Northern District of California

United States District Court

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Pfizer‟s Arguments4

Carney and criticizes Judge Carney‟s reasoning. None of Pfizer‟s arguments is compelling.

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For example, according to Pfizer, the plaintiffs in the five cases before this Court did not

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have to make a proposal for a joint trial themselves in order for them to be counted as part of the

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100 plaintiffs needed for the CAFA mass action provision. Pfizer argues that Corber is

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dispositive on this point: “Corber summarily reversed the remand orders not only in cases

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identified in the coordination petition, but also in all other related cases filed in California,

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regardless of whether or not the plaintiffs at issue had filed a petition for coordination or add-on

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petition at the time of removal.” Resp. at 10 (emphasis omitted). The problem with this argument

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is that, as Judge Carney explained, “[t]he issue of whether the 100-plaintiff threshold had been met

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was never raised, argued, or addressed in Corber. Corber only analyzed the narrow question of

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whether the language of the coordination petitions was sufficient to constitute proposals for a joint

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trial.” Carney Op. No. 2, at 6.

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Pfizer tries to avoid this problem by arguing that “the fact that the issue [of numerosity]

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was not addressed [in Corber] cuts against Plaintiffs, not for them: the issue was not addressed

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because there was no basis for plaintiffs to dispute from the record that the proposal for joint trial

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As noted above, McKesson has joined in Pfizer‟s arguments.
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applied to all plaintiffs.” Resp. at 11. But this argument is far from persuasive. It is entirely

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speculative as to why the plaintiffs in Corber did not argue that the 100-plaintiff threshold had not

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been met.

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Pfizer contends that, even if Corber were not dispositive, the Court still should not remand

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the cases back to the state courts as Judge Carney did because his rulings are flawed. Pfizer

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argues that the Ninth Circuit simply defines a proposal (for a joint trial) as a voluntary,

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affirmative, and intentional act, see Briggs, 796 F.3d at 1048 (noting that a mere suggestion or a

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mere prediction is not enough), and that Judge Carney implicitly went against this standard by

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holding that an act that is administrative in nature is not enough to be a proposal. See Resp. at 12.

phrase “administrative in nature” but in the following context. Pfizer had argued that numerous

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For the Northern District of California

This argument, however, mischaracterizes Judge Carney‟s decision. Judge Carney did use the

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United States District Court

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plaintiffs had proposed a joint trial by checking the box (on the civil cover sheets attached to their

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complaints) that the case was complex because it was subject to coordination with related pending

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actions. Judge Carney rejected the argument, stating as follows: “[T]hese actions are all

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administrative in nature and merely alert the clerk‟s office to the possibility of coordination in

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order to assist with case sorting and management. They do not constitute voluntary and

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affirmative acts by each plaintiff to be part of and bound by a proposal for a joint trial.” Carney

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Op. No. 1, at 14. He further stated: “[T]hese actions fall short of the voluntary and affirmative

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action standard laid out in Briggs. They are merely administrative actions. They are not clear and

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definitive commitments by the plaintiffs to be part of and bound by a proposal for a joint trial.”

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Carney Op. No. 2, at 7.

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As should be clear from this context, Judge Carney‟s decision did not turn on whether

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checking the box was administrative in nature. Rather, Judge Carney‟s point was that there was

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not a sufficiently clear proposal for a joint trial. This makes sense because, even if, by checking

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the box, the plaintiffs were asking to be part of the coordinated proceeding before Judge Johnson,

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that does not mean that they were thereby proposing a joint trial (in contrast to the plaintiffs who

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had filed the original and amended petitions for coordination and who, in those papers, referred to,

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e.g., inconsistent judgments). Cf. Corber, 771 F.3d at 1223-24 (noting that petitions for
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coordination under section 404 are not “per se proposals to try cases jointly for purposes of

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CAFA‟s mass action provision”; evaluating the language of the petitions for coordination to see

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whether there was a proposal for a joint trial). Indeed, as Judge Carney noted, “Judge Johnson

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repeatedly stated [at the February 2014 status] that the JCCP cases „can be sent back for trial,‟ so it

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is far from clear whether Judge Johnson‟s order [regarding add-on cases] is even proposing a joint

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trial . . . .” Carney Op. No. 1, at 15-16.

bind another plaintiff even if he or she has not made a proposal for a joint trial; in other words, the

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consent of the latter plaintiff is not required. But Pfizer‟s “no consent” argument is problematic

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because it fails to take into account the Ninth Circuit case law emphasizing that a plaintiff is the

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master of his or her complaint. See Corber, 771 F.3d at 1223 (stating that “plaintiffs are the

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For the Northern District of California

Pfizer‟s final argument is that a proposal for a joint trial made by one plaintiff can in effect

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United States District Court

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„masters of their complaint‟ and do not propose a joint trial simply by structuring their complaints

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so as to avoid the 100-plaintiff threshold”); Briggs, 796 F.3d at 1050 (quoting Eleventh Circuit

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decision for the proposition that “„plaintiffs have the ability to avoid § 1332(d)(11)(B)(i)

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jurisdiction by filing separate complaints naming less than 100 plaintiffs and by not moving for or

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otherwise proposing joint trial in the state court‟”). As Judge Carney pointed out, there are many

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legitimate reasons why a plaintiff would not want his or her case jointly tried with other plaintiffs‟

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cases.

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Pfizer‟s “no consent argument” is also problematic because, as Judge Carney recognized,

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the legislative history suggests consent is needed. See Carney Op. No. 1, at 12 n.4 (quoting Senate

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Report stating that “„any civil action in which 100 or more named parties seek to try their claims

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for monetary relief together will be treated as a class action for jurisdictional purposes‟”)

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(emphasis in original). Furthermore, as Plaintiffs point out, in Mississippi ex rel. Hood v. AU

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Optronics Corp., 134 S. Ct. 736 (2014), the Supreme Court indicated that “a „mass action‟ must

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involve monetary claims brought by 100 or more persons who propose to try those claims jointly

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as named plaintiffs.” Id. at 739 (emphasis added; ultimately holding that “a suit filed by a State as

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the sole plaintiff [does not] constitute[] a „mass action‟ under CAFA where it includes a claim for

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restitution based on injuries suffered by the State‟s citizens”).
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III.

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CONCLUSION

The Court finds Judge Carney‟s reasoning persuasive and rejects Pfizer‟s arguments for

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the reasons stated above. Accordingly, the Court grants Plaintiffs‟ motions to remand the five

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cases before it back to the state courts from which they were removed.

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The Clerk of the Court is ordered to close the files in these cases.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: August 9, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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