Lauachus et al v. McKesson Corporation et al

Filing 33

ORDER GRANTING MOTION TO STAY, AND DENYING WITHOUT PREJUDICE MOTIONS TO REMAND, SEVER AND DISMISS 12 15 17 19 . (Illston, Susan) (Filed on 4/10/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SANDRA LAUACHUS, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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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

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Before the Court is plaintiffs’ motion to remand, Dkt. No. 12, and the motion by

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defendants Bristol-Myers Squibb Co. (“BMS”) and Pfizer Inc. (“Pfizer”) to dismiss, stay, and

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sever, Dkt. Nos. 15, 17, 19. Pursuant to Civil Local Rule 7-1(b), the Court determines that these

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matters are appropriate for resolution without oral argument and VACATES the hearing set for

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April 28, 2017. For the reasons set forth below, the Court GRANTS defendants’ motion to stay

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and DENIES WITHOUT PREJUDICE plaintiff’s motion to remand and defendants’ motions to

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dismiss and sever.

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BACKGROUND

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Plaintiffs filed this action on February 27, 2017 in San Francisco Superior Court, seeking

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recovery for severe or fatal injuries allegedly suffered as a result of taking the prescription oral

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anticoagulant Eliquis, also known as apixaban.

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(1) negligence; (2) strict products liability; (3) breach of express warranty; (4) breach of implied

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warranty; (5) fraudulent misrepresentation; (6) fraudulent concealment; (7) negligent

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misrepresentation; and (8) wrongful death. See Compl., Notice of Removal Ex. Q (Dkt. No. 1-2 at

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80). On March 10, 2017, defendants filed a notice of removal in this Court. Dkt. No. 1.

Plaintiffs assert causes of action for:

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One plaintiff, Sandra Lauachus, is a resident of California. The others are residents of

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Tennessee, Ohio, Kentucky, Pennsylvania, Louisiana, and Arizona. Defendants Bristol-Myers

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Squibb Co. and Pfizer, Inc. are citizens of Delaware and New York. Defendants allege that this

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Court has diversity jurisdiction over the proceedings because McKesson Corp. (“McKesson”), a

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citizen of California, was fraudulently joined as a defendant in this lawsuit. The parties agree that

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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.

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Kim Decl. ISO Mot. to Stay (Dkt. No. 17-1) ¶ 5. On October 13, 2016, BMS and Pfizer petitioned

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the Judicial Panel on Multidistrict Litigation (the “JPML”) to consolidate all federal Eliquis cases

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for pretrial purposes. Id. ¶ 6 & Ex. A, Petition. On February 7, 2017, the JPML granted the

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United States District Court
Northern District of California

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petition and created MDL No. 2754, In re Eliquis (Apixaban) Products Liability Litigation. Id. ¶ 7

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& Ex. C, Transfer Order. In re Eliquis proceeds in the Southern District of New York before

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District Judge Denise Cote.

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McKesson’s fraudulent joinder have been transferred to the MDL or have been tagged for

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conditional transfer. See Kim Decl. ISO Mot. to Stay ¶¶ 11-12. At least one case from the

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Northern District has been transferred, Baker v. McKesson Corp., 3:17-cv-00074-JD (N.D. Cal.

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filed Jan 6, 2017). See id. ¶ 10. In Baker, the parties stipulated to a stay pending transfer to the

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MDL. Id. ¶ 13.

Numerous California cases raising the same issues regarding

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This case has been tagged for conditional transfer to the In re Eliquis MDL. Kim Decl. in

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Opp’n to Mot. to Remand (Dkt. No. 26-1) ¶ 6 & Ex. B, Conditional Transfer Order. Plaintiffs

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oppose conditional transfer, and briefing before Judge Cote is underway involving McKesson’s

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alleged fraudulent joinder. See In re Eliquis, MDL No. 2754, Dkt. Nos. 123, 135. Defendants’

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response in the MDL proceeding is due by April 20, 2017. Id., Dkt. No. 124. Other cases,

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including cases pending transfer from this District, also raise the same jurisdictional objections.

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See id., Dkt. No. 120, Motion to Vacate Conditional Transfer Order; see also id., Dkt. Nos. 95,

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100, 128.

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LEGAL STANDARD

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The Court’s power to stay proceedings is “incidental to the power inherent in every court

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to control the disposition of the causes on its docket with economy of time and effort for itself, for

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counsel, and for litigants.”

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determining whether a stay is warranted pending a potential transfer by the JPML, courts consider

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“(1) potential prejudice to the non-moving party; (2) hardship and inequity to the moving party if

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the action is not stayed; and (3) the judicial resources that would be saved by avoiding duplicative

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litigation if the cases are in fact consolidated.” Couture v. Hoffman-La Roche, Inc., No. 12-2657-

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PJH, 2012 WL 3042994, at *2 (N.D. Cal. July 25, 2012) (internal citation and quotation marks

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omitted). “[D]eference to the MDL court for resolution of a motion to remand often provides ‘the

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United States District Court
Northern District of California

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opportunity for the uniformity, consistency, and predictability in litigation that underlies the MDL

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system.’” Id. (quoting Nielsen v. Merck & Co., 2007 WL 806510, at *1 (N.D. Cal. Mar. 15,

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2007)).

Landis v. North Am. Co., 299 U.S. 248, 254 (1936).

When

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DISCUSSION

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This Court has ample authority to remand or to stay in cases such as this one. In this

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instance, the Court will stay the case pending transfer to MDL in the Southern District of New

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York. If the case is not transferred to the MDL, plaintiffs may renew their motion to remand in

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this Court.

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The relevant factors weigh in favor of a stay.

First, plaintiffs are not likely to be

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prejudiced by a brief stay of this matter. The issue of McKesson’s fraudulent joinder presents

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itself across numerous cases in front of the MDL and, according to defendants, will likely be

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resolved by June. Kim Decl. ISO Mot. to Stay ¶ 18; Kim Decl. ISO Reply (Dkt. No. 32-1) ¶ 6.

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Second, defendants face hardship in having to litigate parallel motions on the same issues in

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numerous jurisdictions, and they risk inconsistent rulings on questions of law and fact. This is a

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major reason for the JPML’s establishment of In re Eliquis to coordinate pretrial proceedings.

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Finally, judicial resources are best utilized by having Judge Cote resolve these overarching

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jurisdictional issues on a consolidated basis. See Couture, 2012 WL 3042994, at *2 (citation
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omitted) (“[D]eference to the MDL court for resolution of a motion to remand often provides ‘the

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opportunity for the uniformity, consistency, and predictability in litigation that underlies the MDL

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system.’”).
Plaintiff urges the Court to follow Judge Wilken and Judge Cousins who, last December,

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remanded two Eliquis actions to California state court. See Rizkalla Decl. (Dkt. No. 27) ¶¶ 2-3 &

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Exs. A-B, Remand Orders.

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Wilken’s decision to remand appears to have been based, in part, on uncertainty surrounding the

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JPML petition. Rizkalla Decl. Ex. A (Dkt. No. 27-1), Dec. 29, 2016 Remand Order of District

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Judge Claudia Wilken, at 3 (“[I]t is not clear whether the JPMDL will transfer and consolidate the

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cases . . . . Moreover, even if it does, it has not set a date to consider whether additional cases,

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United States District Court
Northern District of California

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including the instant case, should be transferred.”); see also id., Ex. B, Dec. 30, 2016 Remand

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Order of Magistrate Judge Nathanael Cousins at 2 (“[T]he Court follows the reasoning of District

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Court Judge Claudia Wilken in her order yesterday remanding a nearly identical case . . . .”).

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Since Judge Wilken’s and Judge Cousins’s decisions, the JPML created In re Eliquis, and now

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numerous cases pending before Judge Cote present identical jurisdictional issues.

Since that time, however, circumstances have changed.

Judge

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In the interest of judicial economy and consistent determination of issues, Judge Cote

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should resolve outstanding jurisdictional questions in In re Eliquis. See Rifenbery v. Organon

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USA, Inc., No. 13-5463-JST, 2014 WL 296955, at *2 (N.D. Cal. Jan. 26, 2014) (discussing

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creation of NuvaRing MDL as supporting a stay); Garza v. Organon USA, Inc., No. 13-4988-RS,

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2013 WL 6443433, at *2 (N.D. Cal. Dec. 9, 2013) (same). If Judge Cote decides not to transfer

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this case, the parties may renew their outstanding motions. Accordingly, the Court GRANTS

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defendants’ motion to stay.

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CONCLUSION

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For the foregoing reasons, defendants’ motion to stay is GRANTED. Defendants’ motions

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to sever and dismiss are DENIED WITHOUT PREJUDICE. Plaintiffs’ motion to remand is

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DENIED WITHOUT PREJUDICE. The parties are hereby ORDERED to provide a written

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update within ten (10) days of Judge Cote’s decision on conditional transfer.

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This order resolves Dkt. Nos. 12, 15, 17, 19.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: April 10, 2017
______________________________________
SUSAN ILLSTON
United States District Judge

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