Lauachus et al v. McKesson Corporation et al

Filing 33


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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SANDRA LAUACHUS, et al., Plaintiffs, 8 9 10 United States District Court Northern District of California 11 Case No. 17-cv-01286-SI v. MCKESSON CORPORATION, et al., Defendants. ORDER GRANTING MOTION TO STAY AND DENYING WITHOUT PREJUDICE MOTIONS TO REMAND, SEVER, AND DISMISS Re: Dkt. Nos. 12, 15, 17, 19 12 13 Before the Court is plaintiffs’ motion to remand, Dkt. No. 12, and the motion by 14 defendants Bristol-Myers Squibb Co. (“BMS”) and Pfizer Inc. (“Pfizer”) to dismiss, stay, and 15 sever, Dkt. Nos. 15, 17, 19. Pursuant to Civil Local Rule 7-1(b), the Court determines that these 16 matters are appropriate for resolution without oral argument and VACATES the hearing set for 17 April 28, 2017. For the reasons set forth below, the Court GRANTS defendants’ motion to stay 18 and DENIES WITHOUT PREJUDICE plaintiff’s motion to remand and defendants’ motions to 19 dismiss and sever. 20 21 BACKGROUND 22 Plaintiffs filed this action on February 27, 2017 in San Francisco Superior Court, seeking 23 recovery for severe or fatal injuries allegedly suffered as a result of taking the prescription oral 24 anticoagulant Eliquis, also known as apixaban. 25 (1) negligence; (2) strict products liability; (3) breach of express warranty; (4) breach of implied 26 warranty; (5) fraudulent misrepresentation; (6) fraudulent concealment; (7) negligent 27 misrepresentation; and (8) wrongful death. See Compl., Notice of Removal Ex. Q (Dkt. No. 1-2 at 28 80). On March 10, 2017, defendants filed a notice of removal in this Court. Dkt. No. 1. Plaintiffs assert causes of action for: 1 One plaintiff, Sandra Lauachus, is a resident of California. The others are residents of 2 Tennessee, Ohio, Kentucky, Pennsylvania, Louisiana, and Arizona. Defendants Bristol-Myers 3 Squibb Co. and Pfizer, Inc. are citizens of Delaware and New York. Defendants allege that this 4 Court has diversity jurisdiction over the proceedings because McKesson Corp. (“McKesson”), a 5 citizen of California, was fraudulently joined as a defendant in this lawsuit. The parties agree that 6 if McKesson is properly named in this case, its presence defeats diversity jurisdiction. This case is one of “nearly two dozen” Eliquis cases filed in California since May 2016. 8 Kim Decl. ISO Mot. to Stay (Dkt. No. 17-1) ¶ 5. On October 13, 2016, BMS and Pfizer petitioned 9 the Judicial Panel on Multidistrict Litigation (the “JPML”) to consolidate all federal Eliquis cases 10 for pretrial purposes. Id. ¶ 6 & Ex. A, Petition. On February 7, 2017, the JPML granted the 11 United States District Court Northern District of California 7 petition and created MDL No. 2754, In re Eliquis (Apixaban) Products Liability Litigation. Id. ¶ 7 12 & Ex. C, Transfer Order. In re Eliquis proceeds in the Southern District of New York before 13 District Judge Denise Cote. 14 McKesson’s fraudulent joinder have been transferred to the MDL or have been tagged for 15 conditional transfer. See Kim Decl. ISO Mot. to Stay ¶¶ 11-12. At least one case from the 16 Northern District has been transferred, Baker v. McKesson Corp., 3:17-cv-00074-JD (N.D. Cal. 17 filed Jan 6, 2017). See id. ¶ 10. In Baker, the parties stipulated to a stay pending transfer to the 18 MDL. Id. ¶ 13. Numerous California cases raising the same issues regarding 19 This case has been tagged for conditional transfer to the In re Eliquis MDL. Kim Decl. in 20 Opp’n to Mot. to Remand (Dkt. No. 26-1) ¶ 6 & Ex. B, Conditional Transfer Order. Plaintiffs 21 oppose conditional transfer, and briefing before Judge Cote is underway involving McKesson’s 22 alleged fraudulent joinder. See In re Eliquis, MDL No. 2754, Dkt. Nos. 123, 135. Defendants’ 23 response in the MDL proceeding is due by April 20, 2017. Id., Dkt. No. 124. Other cases, 24 including cases pending transfer from this District, also raise the same jurisdictional objections. 25 See id., Dkt. No. 120, Motion to Vacate Conditional Transfer Order; see also id., Dkt. Nos. 95, 26 100, 128. 27 28 2 LEGAL STANDARD 1 The Court’s power to stay proceedings is “incidental to the power inherent in every court 3 to control the disposition of the causes on its docket with economy of time and effort for itself, for 4 counsel, and for litigants.” 5 determining whether a stay is warranted pending a potential transfer by the JPML, courts consider 6 “(1) potential prejudice to the non-moving party; (2) hardship and inequity to the moving party if 7 the action is not stayed; and (3) the judicial resources that would be saved by avoiding duplicative 8 litigation if the cases are in fact consolidated.” Couture v. Hoffman-La Roche, Inc., No. 12-2657- 9 PJH, 2012 WL 3042994, at *2 (N.D. Cal. July 25, 2012) (internal citation and quotation marks 10 omitted). “[D]eference to the MDL court for resolution of a motion to remand often provides ‘the 11 United States District Court Northern District of California 2 opportunity for the uniformity, consistency, and predictability in litigation that underlies the MDL 12 system.’” Id. (quoting Nielsen v. Merck & Co., 2007 WL 806510, at *1 (N.D. Cal. Mar. 15, 13 2007)). Landis v. North Am. Co., 299 U.S. 248, 254 (1936). When 14 DISCUSSION 15 16 This Court has ample authority to remand or to stay in cases such as this one. In this 17 instance, the Court will stay the case pending transfer to MDL in the Southern District of New 18 York. If the case is not transferred to the MDL, plaintiffs may renew their motion to remand in 19 this Court. 20 The relevant factors weigh in favor of a stay. First, plaintiffs are not likely to be 21 prejudiced by a brief stay of this matter. The issue of McKesson’s fraudulent joinder presents 22 itself across numerous cases in front of the MDL and, according to defendants, will likely be 23 resolved by June. Kim Decl. ISO Mot. to Stay ¶ 18; Kim Decl. ISO Reply (Dkt. No. 32-1) ¶ 6. 24 Second, defendants face hardship in having to litigate parallel motions on the same issues in 25 numerous jurisdictions, and they risk inconsistent rulings on questions of law and fact. This is a 26 major reason for the JPML’s establishment of In re Eliquis to coordinate pretrial proceedings. 27 Finally, judicial resources are best utilized by having Judge Cote resolve these overarching 28 jurisdictional issues on a consolidated basis. See Couture, 2012 WL 3042994, at *2 (citation 3 1 omitted) (“[D]eference to the MDL court for resolution of a motion to remand often provides ‘the 2 opportunity for the uniformity, consistency, and predictability in litigation that underlies the MDL 3 system.’”). Plaintiff urges the Court to follow Judge Wilken and Judge Cousins who, last December, 5 remanded two Eliquis actions to California state court. See Rizkalla Decl. (Dkt. No. 27) ¶¶ 2-3 & 6 Exs. A-B, Remand Orders. 7 Wilken’s decision to remand appears to have been based, in part, on uncertainty surrounding the 8 JPML petition. Rizkalla Decl. Ex. A (Dkt. No. 27-1), Dec. 29, 2016 Remand Order of District 9 Judge Claudia Wilken, at 3 (“[I]t is not clear whether the JPMDL will transfer and consolidate the 10 cases . . . . Moreover, even if it does, it has not set a date to consider whether additional cases, 11 United States District Court Northern District of California 4 including the instant case, should be transferred.”); see also id., Ex. B, Dec. 30, 2016 Remand 12 Order of Magistrate Judge Nathanael Cousins at 2 (“[T]he Court follows the reasoning of District 13 Court Judge Claudia Wilken in her order yesterday remanding a nearly identical case . . . .”). 14 Since Judge Wilken’s and Judge Cousins’s decisions, the JPML created In re Eliquis, and now 15 numerous cases pending before Judge Cote present identical jurisdictional issues. Since that time, however, circumstances have changed. Judge 16 In the interest of judicial economy and consistent determination of issues, Judge Cote 17 should resolve outstanding jurisdictional questions in In re Eliquis. See Rifenbery v. Organon 18 USA, Inc., No. 13-5463-JST, 2014 WL 296955, at *2 (N.D. Cal. Jan. 26, 2014) (discussing 19 creation of NuvaRing MDL as supporting a stay); Garza v. Organon USA, Inc., No. 13-4988-RS, 20 2013 WL 6443433, at *2 (N.D. Cal. Dec. 9, 2013) (same). If Judge Cote decides not to transfer 21 this case, the parties may renew their outstanding motions. Accordingly, the Court GRANTS 22 defendants’ motion to stay. 23 24 25 26 27 /// 28 /// 4 CONCLUSION 1 2 For the foregoing reasons, defendants’ motion to stay is GRANTED. Defendants’ motions 3 to sever and dismiss are DENIED WITHOUT PREJUDICE. Plaintiffs’ motion to remand is 4 DENIED WITHOUT PREJUDICE. The parties are hereby ORDERED to provide a written 5 update within ten (10) days of Judge Cote’s decision on conditional transfer. 6 7 This order resolves Dkt. Nos. 12, 15, 17, 19. 8 IT IS SO ORDERED. 9 10 United States District Court Northern District of California 11 Dated: April 10, 2017 ______________________________________ SUSAN ILLSTON United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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