Aiona et al v. Bayer HealthCare Pharmaceuticals, Inc.

Filing 17

ORDER by Judge Edward M. Chen Granting 12 Plaintiffs' Motion to Remand. (emcsec, COURT STAFF) (Filed on 1/20/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SIARA AIONA, et al.,

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For the Northern District of California

United States District Court

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No. C-14-4745 EMC

Plaintiffs,
ORDER GRANTING PLAINTIFFS’
MOTION TO REMAND

v.
BAYER HEALTHCARE
PHARMACEUTICALS, INC.,

(Docket No. 12)

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Defendant.
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This action is one of several products liability actions currently pending against Defendant

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Bayer HealthCare Pharmaceuticals, Inc. (“Bayer”) alleging that Bayer’s Mirena intrauterine device

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caused various injuries. This action has previously been removed to this Court only to be remanded

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to state court for improper removal. Undeterred, Bayer has removed this action a second time, on a

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separate ground based on subsequent events. Plaintiffs have moved to remand. The Court finds this

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matter suitable for disposition without oral argument and thereby VACATES the hearing currently

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set for January 29, 2015. For the following reasons, the Court GRANTS Plaintiffs’ motion to

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remand and REMANDS this action to the Superior Court of California for the County of San

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Francisco.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

This action was filed in California state court on July 18, 2013. See Declaration of Paul B.

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La Scala (“La Scala Decl.”), Ex. A (Docket No. 1-5). The complaint generally alleges that the

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Plaintiffs – approximately thirty individuals – suffered injuries as a result of Bayer’s Mirena

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intrauterine device. See generally id. Bayer initially removed this action on December 27, 2013,

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pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332. On February 27, 2014, this

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Court granted Plaintiffs’ motion to remand, finding that Bayer had failed to “meet the high standard

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for demonstrating fraudulent joinder – that Plaintiff Garrett obviously failed to state a claim under

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the settled laws.” Docket No. 23.

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On September 22, 2014, plaintiffs in another California state court case involving alleged

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injuries caused by Mirena filed a Joint Petition for Coordination (“Joint Petition”) pursuant to

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California Code of Civil Procedure § 404.1. The Joint Petition sought to coordinate 7 separate

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Mirena actions – including this one. The parties dispute the extent to which Plaintiffs in this case

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consented to the inclusion of the action in the Petition, but it does not appear that the Plaintiffs here

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For the Northern District of California

United States District Court

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ever objected to the case being included in the Joint Petition.
The Joint Petition states four times in one paragraph were seeking coordination “for pre-trial
purposes only”:
Plaintiffs . . . respectfully submit this Joint Petition for Coordination
for pre-trial purposes only and request to the Chairperson of the
Judicial Council for assignment of a Judge to determine whether the
above-titled actions . . . are complex actions and, if so whether
coordination of the actions for pre-trial purposes only is appropriate.
Plaintiffs DO NOT seek and are in no way petitioning this Court for
multi-plaintiff trials. This Petition is limited to coordination for
pretrial purposes ONLY.

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See Docket No. 32-1, at 8. The attached Memorandum of Points and Authorities contained similar

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language in two locations. See Docket No. 32-2, at 8 (“Plaintiffs seek coordination for purposes of

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pre-trial only of the following seven (7) actions . . . .”); id. at 10 (“Plaintiffs further submit that the

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interests of justice and judicial economy support the coordination of the ten (10) current cases for

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pre-trial purposes only . . . .” (emphasis in original)).

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The movants contended that five factors favored coordination. First, they argued that

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common questions of fact or law predominated over individual issues and were significant. Id. at

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11. Second, they argued that the coordination would allow “parties to share work product and

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discovery already produced” and that coordinating the cases would prevent duplicative discovery –

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thus preserving resources. Id. at 12. Third, they stated that coordination would “foster efficient

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utilization of judicial resources” since Mirena-related lawsuits were pending in Los Angeles, San

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Diego, San Bernardino, and San Francisco County. Id. at 13. Fourth, they argued that the risk of

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duplicative or inconsistent rulings would be minimized by coordination, stating:

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[I]ssues likely to be raised in this action include issues pertaining to
liability, allocation of fault and contribution, as well as the same
wrongful conduct of Defendants. Such difficult issues may ultimately
be addressed by the California Court of Appeal. Coordination is
required in order to avoid duplicative efforts and inconsistent rulings.

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Id. at 14. Finally, they argued that if coordination was denied, the cases would likely not settle

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without substantial additional litigation. Id.

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On October 24, 2014, Bayer re-removed this action under CAFA in light of the Joint
Petition. Specifically, it contends that the Joint Petition is sufficient to invoke the “mass action”
provision of CAFA. Plaintiffs move to remand, arguing that coordination for pre-trial purposes only

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For the Northern District of California

United States District Court

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did not make the action removable under CAFA. Plaintiffs further contend that they did not consent

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to the filing of the Joint Petition and, therefore, it cannot bind them.

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II.

DISCUSSION

Under CAFA, a “mass action” is defined as “any civil action . . . in which monetary relief

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

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claims involve common questions of law or fact.” 28 U.S.C. § 1332(d)(11)(B)(i). Expressly

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excluded from the definition of “mass action” are “claims that have been consolidated or

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coordinated solely for pretrial proceedings.” Id. § 1332(d)(11)(B)(ii)(IV). If a case is deemed a

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“mass action,” it may be removed as if it were a class action under CAFA provided other

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jurisdictional requirements are met. Id. § 1332(d)(11)(A). To remove a mass action, there must be

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minimal diversity between the plaintiffs and defendants and the amount in controversy must exceed

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$5,000,000. See id. § 1332(d)(2).

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Here there is no dispute that the number of plaintiffs in the various Mirena actions referenced

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in the Joint Petition exceed 100 or that the amount in controversy exceeds $5,000,000. The question

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posed by Plaintiffs’ motion to remand is whether the Joint Petition rendered this action, and the

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other Mirena cases included in the Joint Petition, a “mass action.” In other words, the Court must

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determine if the Joint Petition represents a proposal that the various actions “be tried jointly” as

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required by § 1332(d)(11)(B)(ii)(IV) or whether as Plaintiffs maintain, it was merely a request for

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coordination for pre-trial purposes.

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As referenced above, the Joint Petition was filed in a separate Mirena case pursuant to

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California Civil Procedure Code sections 404 and 404.1 Section 404.1 provides the standard

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governing coordination:

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Coordination of civil actions sharing a common question of fact or law
is appropriate if one judge hearing all of the actions for all purposes in
a selected site or sites will promote the ends of justice taking into
account whether the common question of fact or law is predominating
and significant to the litigation; the convenience of parties, witnesses,
and counsel; the relative development of the actions and the work
product of counsel; the efficient utilization of judicial facilities and
manpower; the calendar of the courts; the disadvantages of duplicative
and inconsistent rulings, orders, or judgments; and, the likelihood of
settlement of the actions without further litigation should coordination
be denied.

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Cal. Civ. Proc. Code § 404.1. While this section speaks of coordination being appropriate if “one

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judge hearing all of the actions for all purposes” would satisfy the criteria, courts have recognized

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the possibility of coordination for pre-trial purposes only. For example, in Gutowski v. McKesson

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Corp., No. C12-6056 CW, 2013 WL 675540 (Feb. 25, 2013), the court granted the motion to remand

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where the coordination petition did “not propose or even refer to a joint trial,” but rather focused on

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the “potential benefits of coordination during pretrial proceedings.” Id. at *3; see also Rentz v.

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McKesson Corp., No. C12-9945 PSG (Ex), 2013 WL 645634 (C.D. Cal. Feb. 20, 2013) (same).

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In Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218 (9th Cir. 2014) (en banc), the

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Ninth Circuit addressed the removability of actions coordinated pursuant to California Civil

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Procedure 404.1. The court held that when such a petition for coordination is filed along with

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memoranda in support, a court must “carefully assess the language of the petitions for coordination

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to see whether, in language or substance, they proposed a joint trial.” Id. at 1223. The petition

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before the Ninth Circuit did not contain an express request for joint trials or coordination through

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trial. Nonetheless, the court found that the petition was, in fact, such a request. First, the Court

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noted that the petition sought coordination “for all purposes” and that “all purposes must include the

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purposes of trial.” Id. Second, the court noted that the reasons given in support of the coordination

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petition suggested joint trials. For example, it noted that plaintiffs had listed the “danger of

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inconsistent judgments and conflicting determinations of liability.” Id. at 1223-24. It then held that

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“achieving consistency in these areas would certainly require a joint trial.” Id. at 1224.

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At first blush, Corber appears to support remand in this action. The Joint Petition in this

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action is, in many respects, identical to the petition the Ninth Circuit confronted in Corber. For

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example, the memorandum in support of the coordination petition in Corber included only one

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reference to coordination for “all purposes” – first it stated “The following factors, catalogued in

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section 404.1 and discussed in more detail below, all demonstrates that coordination of these

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included actions is appropriate: One judge hearing all of the actions for all purposes in a selected site

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. . . will promote the ends of justice.” See Corber v. Xanodyne Pharm., Inc., No. 13-56306 (9th
Cir.), Excerpts of Record (“ER”) 119. The Joint Petition in this case contains the same paragraph,

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United States District Court

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verbatim. See Docket No. 32-2, at 11. The statement in the Corber petition was sufficient for the

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Court to conclude that the plaintiffs had “propose[d] a joint trial, triggering federal jurisdiction as a

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mass action under CAFA.” Corber, 771 F.3d at 1225. Insofar the Joint Petition here contains the

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same language, it would appear that the Plaintiffs have likewise included a joint trial request.

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Further, just like the Corber petition, the Joint Petition in this action identified the risk of

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inconsistent rulings and conflicting determinations of liability. In fact, the memorandum in support

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of the Joint Petition is identical to the coordination petition on this point. Compare:

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Corber Petition

Joint Petition

“Failure to coordinate these actions will result
in the disadvantage of duplicate and
inconsistent rulings, orders, or judgments. The
inevitability of realizing the inconsistency and
duplication factor of California Code of Civil
Procedure Section 404.1, weighs heavily in
favor of coordination. Indeed, issues likely to
be raised in this action include issues pertaining
to liability, allocation of fault and contribution,
as well as the same wrongful conduct of
Defendants. Such difficult issues may
ultimately be addressed by the California Court
of Appeal. Coordination is required in order to
avoid duplicative efforts and inconsistent
rulings.” ER 121.

“Failure to coordinate these actions will result
in the disadvantage of duplicate and
inconsistent rulings, orders, or judgments. The
inevitability of realizing the inconsistency and
duplication factor of California Code of Civil
Procedure Section 404.1, weighs heavily in
favor of coordination. Indeed, issues likely to
be raised in this action include issues pertaining
to liability, allocation of fault and contribution,
as well as the same wrongful conduct of
Defendants. Such difficult issues may
ultimately be addressed by the California Court
of Appeal. Coordination is required in order to
avoid duplicative efforts and inconsistent
rulings.” Docket No. 32-2, at 14.

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Accordingly, language the Ninth Circuit found to be indicative of a proposal for joint trials is found

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in the Joint Petition herein.

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On the other hand, the Joint Petition differs from the Corber Petition in one material respect.

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As discussed above, the Joint Petition here contains no less than four references to coordination

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being sought “for pre-trial purposes only.” See Docket No. 32-1, at 8. The memorandum in support

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of the petition contains further references. See, e.g., Docket No. 32-2, at 15 (“As set forth above, all

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factors to be considered demonstrate that coordination of these included actions for pre-trial

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purposes only is appropriate as it is in the interest of judicial economy and the parties.” (emphasis

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added)).
This difference between the Joint Petition and the Corber Petition is dispositive. In Corber,

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For the Northern District of California

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after finding that the coordination petition before it had, in substance, proposed a joint trial, the

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Court stated:

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This is not to say that all petitions for coordination under section 404
are per se proposals to try cases jointly for the purposes of CAFA’s
mass action provision. We can envision a section 404 petition that
expressly seeks to limit its request for coordination to pre-trial matters,
and thereby align with the mass action provision’s exception for “any
civil action in which . . . the claims have been consolidated or
coordinated solely for pretrial proceedings.”

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Corber, 771 F.3d at 1224 (footnote omitted) (quoting 28 U.S.C. § 1332(d)(11)(B)(ii)(IV)). While

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recognizing that it was unclear if the California Judicial Council would actually grant coordination

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for only pre-trial purposes, the Corber court stated that “if Plaintiffs had qualified their coordination

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request by saying that it was intended to be solely for pre-trial purposes, then it would be difficult to

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suggest that Plaintiffs had proposed a joint trial.” Id at 1224-25.1

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Of course, immediately after this statement, the Ninth Circuit stated:
But where, as here, plaintiffs petition for coordination by arguing that
“hearing all of the actions” together “for all purposes” would promote
the ends of justice, they propose a joint trial, triggering federal
jurisdiction as a mass action under CAFA.

Id. at 1225. As detailed above, the Joint Petition includes the same, single reference to coordination
for “all purposes” as the Corber petition did. However, as Corber commands, this Court must
carefully assess both the language and the substance of the petition. Here, the single, apparently
boilerplate, reference to consolidation for “all purposes” is substantially outweighed by the repeated
and express limitations of consolidation being sought only for pre-trial purposes. In this

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Here, the plaintiffs in the separate Mirena action who filed the request for Joint

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Consolidation did expressly (and repeatedly) limit their request for coordination to pre-trial purposes

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only. In light of Corber’s clear statements that it would be “difficult to suggest that Plaintiffs had

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proposed a joint trial” in such a circumstance, the Court concludes that the parties who moved for

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Joint Consolidation did not propose joint trials, only consolidation of pre-trial proceedings. As a

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result, the included actions do not qualify as a removable “mass action” under CAFA.

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For the foregoing reasons, the Court finds that removal of this action under CAFA was
improper. Plaintiff’s motion to remand is GRANTED and this action is remanded to the Superior

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Court of California for the County of San Francisco.

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This order disposes of Docket No. 12.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: January 20, 2015

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_________________________
EDWARD M. CHEN
United States District Judge

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circumstance, the Court declines to find that Plaintiffs proposed joint trials. Cf. Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction must be rejected if there is any doubt as to
the right of removal in the first instance.”).

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