Gutowski v. McKesson Corporation et al

Filing 20

ORDER by Judge Claudia Wilken granting 17 Motion to Remand and awarding costs (cwlc3, COURT STAFF) (Filed on 2/25/2013)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4

JASON T. GUTOWSKI,

5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13

Plaintiff,

16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER GRANTING
MOTION TO REMAND
AND AWARDING COSTS
(Docket No. 17)

v.
MCKESSON CORP. and ELI LILLY &
CO.,
Defendants.
________________________________/

Plaintiff Jason Gutowski moves to remand this action to state
court.

Defendant Eli Lilly & Company opposes the motion.

The

Court takes the matter under submission on the papers and grants
the motion.

14
15

No. C 12-6056 CW

BACKGROUND
This is one of more than forty cases currently pending in
California state and federal courts alleging harm from the
ingestion of pharmaceutical drugs containing propoxyphene.

On

October 23, 2012, the plaintiffs in one of those pending actions
filed a petition with the California Judicial Council seeking to
coordinate all current and future cases raising similar claims.
See Cal. Civ. Proc. Code § 404.

The petition requested the

appointment of a “coordination motion judge” for the seven
propoxyphene cases that had been filed in California Superior
Court at that time “as well as other such cases that may be filed
before this Petition is decided.”

Docket No. 1, Petition at 7.

As of this date, the Judicial Council has yet to decide the
coordination petition.

1

On November 19, 2012, roughly one month after the

2

coordination petition was filed, Plaintiff brought this action in

3

Marin County Superior Court.

4

mother suffered fatal “cardiac injuries” in 2003 after taking a

5

propoxyphene-based drug manufactured by Defendant.

6

Compl. at 2-3.

7

has not asserted any class claims.

8
9

His complaint asserts that his

Docket No. 1,

He is the only plaintiff named in this lawsuit and

Defendant removed this action on November 29, 2012.
No. 1, Notice at 1-9.

Docket

In its notice of removal, it asserted that,

United States District Court
For the Northern District of California

10

because this case is likely to be consolidated with the other

11

California propoxyphene cases, it is removable as part of a “mass

12

action” under the Class Action Fairness Act (CAFA), 28 U.S.C.

13

§ 1332(d)(11).

14

2013.
LEGAL STANDARD

15
16

Plaintiff filed a motion to remand on January 24,

A defendant may remove a civil action filed in state court to

17

federal district court so long as the district court could have

18

exercised original jurisdiction over the matter.

19

§ 1441(a).

20

time before judgment, it appears that the district court lacks

21

subject matter jurisdiction over a case previously removed from

22

state court, the case must be remanded.

23

the scope of the removal statute must be strictly construed.

24

v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

25

presumption’ against removal jurisdiction means that the defendant

26

always has the burden of establishing that removal is proper.”

27

Id.; see also Wash. State v. Chimei Innolux Corp., 659 F.3d 842,

28

847 (9th Cir. 2011) (“The burden of establishing removal

28 U.S.C.

Title 28 U.S.C. § 1447(c) provides that if, at any

2

On a motion to remand,
Gaus

“The ‘strong

1

jurisdiction, even in CAFA cases, lies with the defendant seeking

2

removal.”)).

3

favor of remanding the case to state court.

4

566.

Courts should resolve doubts as to removability in

DISCUSSION

5
6

Gaus, 980 F.2d at

CAFA gives federal courts jurisdiction over any “mass action”

7

in which (1) the amount in controversy exceeds five million

8

dollars; (2) at least one plaintiff is diverse from one defendant;

9

and (3) at least one plaintiff’s claim exceeds seventy-five

United States District Court
For the Northern District of California

10

thousand dollars.

11

443 F.3d 676, 689 (9th Cir. 2006).

12

the term “mass action.”

13

28 U.S.C. § 1332(d); Abrego v. Dow Chem. Co.,
At issue here is the scope of

Under CAFA, “mass action” is defined as “any civil action

14

. . . in which monetary relief claims of 100 or more persons are

15

proposed to be tried jointly on the ground that the plaintiffs’

16

claims involve common questions of law or fact.”

17

§ 1332(d)(11).

18

this definition because it is likely to be coordinated with the

19

other propoxyphene lawsuits currently pending in California state

20

courts.

21

total number of plaintiffs in all of the propoxyphene cases will

22

exceed one hundred and thus satisfy CAFA’s “mass action”

23

definition.

24

28 U.S.C.

Defendant contends that the present case satisfies

Once that coordination occurs, Defendant argues, the

Defendant’s argument fails for two reasons.

First, the

25

October 2012 coordination petition does not propose a joint trial

26

and, thus, cannot satisfy CAFA’s “mass action” definition.

27

Second, even if it did propose a joint trial, removal is still

28

premature because the petition remains pending and Plaintiff has
3

1

not attempted to coordinate this case with the other propoxyphene

2

actions.

3

I.

4

Mass Actions Must Be “Tried Jointly” Under CAFA
Two courts in this district have expressly rejected

Defendant’s argument that the October 2012 coordination petition

6

renders all of the pending propoxyphene cases part of a single

7

“mass action.”

8

(N.D. Cal.), appeal docketed [no case number assigned] (9th Cir.

9

Feb. 7, 2013); Rice v. McKesson Corp., 2013 WL 97738, at *2 (N.D.

10
United States District Court
For the Northern District of California

5

Cal.), appeal docketed No. 13-80007 (9th Cir. Jan. 28, 2013); see

11

also L.B.F.R. v. Eli Lilly & Co., Case No. 12-10025-ODW, Docket

12

No. 8, Remand Order, at 3 (C.D. Cal. Dec. 6, 2012) (“Despite

13

Defendants’ [sic] obtuse reasoning concerning a pending state

14

court motion for the coordination of cases, this case does not yet

15

involve 100 or more plaintiffs.”).

16

reasoned that, because the “‘petition for coordination . . . is

17

bereft of any explicit proposal that the claims of these

18

plaintiffs be tried jointly,’” as required by CAFA, the cases do

19

not constitute a “mass action.”

20

(quoting Rice, 2013 WL 97738, at *2) (emphasis in original).

21

Despite these rulings, Defendant contends that the

22

coordination petition does, in fact, propose a joint trial.

23

relies on In re Abbott Labs., Inc., 698 F.3d 568, 571-72 (7th Cir.

24

2012), for support.

25

district court’s order remanding a case to state court because the

26

plaintiffs had moved to consolidate their case with ten similar

27

actions involving several hundred plaintiffs.

28

that the motion to consolidate proposed a joint trial, thus making

Posey v. McKesson Corp., 2013 WL 361168, at *2-*3

Both courts in this district

Posey, 2013 WL 361168, at *2

It

There, the Seventh Circuit reversed a

4

Id.

The court held

1

it removable under CAFA.

2

the motion requesting consolidation “through trial” and “not

3

solely for pretrial proceedings.”

4

contends that the petition to coordinate the propoxyphene cases

5

similarly proposes a joint trial because it seeks coordination

6

“for all purposes.”

7

Id.

The court highlighted language in

Id. at 571.

Defendant here

Docket No. 1, Petition at 8.

Defendant’s reliance on Abbott Labs is unavailing.

The

8

decision is not binding on this Court and, even if it was, it is

9

inapposite.

As the courts in Rice and Posey each noted, the

United States District Court
For the Northern District of California

10

October 2012 coordination petition does not propose or even refer

11

to a joint trial.

12

of coordination during pretrial proceedings, noting that

13

coordination would avoid “duplicative discovery” and protect

14

“judicial resources.”

15

the petition’s use of the phrase “for all purposes” appears simply

16

to reflect the language of California’s coordination statute; it

17

is not a proposal for joint trial.

18

§ 404.1 (“Coordination of civil actions sharing a common question

19

of fact or law is appropriate if one judge hearing all of the

20

actions for all purposes in a selected site or sites will promote

21

the ends of justice . . . .” (emphasis added)).

22

offers little guidance here.

It focuses, instead, on the potential benefits

Docket No. 1, Petition at 6.

Furthermore,

See Cal. Civ. Proc. Code

Abbott Labs thus

23

In contrast, the Ninth Circuit’s decision in Tanoh v. Dow

24

Chemical Co., 561 F.3d 945, 954 (9th Cir. 2009), does provide some

25

direction.

26

individual state court actions, each with fewer than one hundred

27

plaintiffs, should be treated as one ‘mass action’ eligible for

28

removal to federal court under the Class Action Fairness Act.”

In Tanoh, the court considered “whether seven

5

1

Id. at 945.

2

removable under CAFA, reasoning that the statute’s “mass action”

3

provision was “fairly narrow” in scope.

4

The court held that the seven actions were not

Id. at 953.

In reaching this conclusion, the Tanoh court relied on
another CAFA provision, which expressly excludes from the

6

definition of “mass action” cases that “have been consolidated or

7

coordinated solely for pretrial proceedings.”

8

28 U.S.C. § 1332(d)(11)(B)(ii)(IV)).

9

explained, “reinforces our conclusion that Congress intended to

10
United States District Court
For the Northern District of California

5

limit the numerosity component of mass actions quite severely by

11

including only actions in which the trial itself would address the

12

claims of at least one hundred plaintiffs.”

13

Although there was no coordination petition pending in Tanoh, the

14

Ninth Circuit’s narrow interpretation of the “mass action”

15

provision still counsels in favor of remand here.

16

WL 97738, at *2 (“Construing plaintiffs’ petition for coordination

17

as the functional equivalent of an express request for a joint

18

trial would conflict with both the guidance proved by our court of

19

appeals in Tanoh, as well as with the general canon of strict

20

construction of removal statues.”); Posey, 2013 WL 361168, at *3

21

(same) (quoting Rice, 2013 WL 97738, at *2).

22

Id. at 954 (citing

This provision, the court

Id. (emphasis added).

See Rice, 2013

Defendant’s final argument against remand, which was not

23

raised in Rice or Posey, is that CAFA’s legislative history

24

reveals Congress’s intent to give federal courts jurisdiction over

25

cases like this one.

26

statements made during House floor debates about CAFA’s general

27

purpose.

28

addresses the scope of CAFA’s “mass action” provision.

For support, Defendant cites a handful of

None of these statements, however, specifically

6

The

1

legislative proceedings that do address this provision suggest, if

2

anything, that Congress actually intended to exclude consolidated

3

mass tort cases -- such as the present case -- from the definition

4

of “mass action.”

5

Trent Lott, a co-sponsor of the bill, responded specifically to

6

concerns that consolidated mass tort cases might be removed as

7

“mass actions” under CAFA.

8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17

During one Senate debate, for instance, Senator

He made clear:

Mass torts and mass actions are not the same. The
phrase “mass torts” refers to a situation in which many
persons are injured by the same underlying cause, such
as a single explosion, a series of events, or exposure
to a particular product. In contrast, the phrase “mass
action” refers to a specific type of lawsuit in which a
large number of plaintiffs seek to have all their claims
adjudicated in one combined trial.
151 Cong. Rec. S1076-01, 2005 WL 292034 (daily ed. Feb. 8, 2005).
Representative Bob Goodlatte, who helped author the legislation,
expanded on this distinction.

In his comments on the final bill,

he stated that CAFA “will have absolutely no effect” on a group of
then-pending lawsuits filed in New Jersey state courts against the
prescription drug manufacturer, Merck.

As he explained,

18
19
20
21
22
23
24
25
26
27

the majority of personal injury cases brought against
Merck are individual cases that would not be affected by
the bill in any manner whatsoever. These include more
than 400 personal injury cases that are part of a
coordinated proceeding in New Jersey State court. None
of these cases will be affected by the bill because they
are neither class actions nor mass actions.
151 Cong Rec. H723-01, 2005 WL 387992 (daily ed. Feb. 17, 2005)
(emphasis added); see also id. (“[N]ot a single Vioxx case has
been brought against Merck in State court by more than 100
plaintiffs, one of the requirements for removal to Federal Court
under the class action legislation.

Thus, there is no reason to

believe that the mass action provision would affect any Vioxx-

28
7

1

related cases whatsoever.”).

Thus, according to one of CAFA’s

2

principal drafters, individual lawsuits do not become removable

3

simply because they have been coordinated with other lawsuits in

4

state court.

5

support Defendant’s reading of the “mass action” provision.

CAFA’s legislative history, therefore, does not

Nevertheless, while removal is premature at this stage, this

6
7

action may become removable in the future if Plaintiff seeks to

8

coordinate this case with other propoxyphene cases for trial at

9

some later date.

Tanoh, 561 F.3d at 956.

Until then, however,

United States District Court
For the Northern District of California

10

this Court lacks subject matter jurisdiction over the case.

11

II.

12

Plaintiff Did Not Seek Coordination
Even if coordinated cases constituted a “mass action” under

13

CAFA, removal would still be premature at this stage because none

14

of the propoxyphene cases have actually been coordinated.

15

coordination petition remains pending before the Judicial Council

16

and Plaintiff has not made any independent effort to join that

17

petition.

18

Court indicates that he wishes to coordinate this case with any

19

other case.

20

The

Indeed, none of his filings in state court or in this

Nevertheless, Defendant contends that Plaintiff’s counsel

21

“tacitly approved” of coordination here “by not objecting” to a

22

statement made in an e-mail that Plaintiff’s counsel received the

23

day after Plaintiff filed his complaint.

24

sent to Defendant’s counsel by Matthew Sill -- one of the

25

attorneys who filed the coordination petition -- and merely

26

confirms that his petition sought to include later-filed cases

27

such as this one.

28

Although Sill does not represent Plaintiff here, Defendant argues

Opp. 2.

The e-mail was

Declaration of Rachel B. Passaretti-Wu, Ex. 1.

8

1

that “there is a strong basis in fact to impute Mr. Sill’s

2

statements (and therefore the Coordination Petition) to

3

Plaintiff’s attorney” because Plaintiff’s attorney was copied on

4

Sill’s e-mail.

5

Opp. 2.

This argument is unpersuasive.

Defendant has failed to

6

identify a single affirmative step that Plaintiff has taken to

7

coordinate this case with the other propxyphene cases.

8

attorney’s failure to respond to Sill’s e-mail -- an e-mail from a

9

non-party -- to Defendant’s counsel cannot plausibly be read as

His

United States District Court
For the Northern District of California

10

such a step.

11

attorneys who were copied on Sill’s e-mail.

12

Ex. 1.

13

another case -- a multidistrict action currently pending against

14

Defendant in the Eastern District of Kentucky.

15

attorney was likely copied on Sill’s e-mail because he is working

16

with Sill in the multidistrict action, not because he represents

17

Plaintiff in the present case.

18

would be particularly unreasonable to impute his failure to

19

respond to the e-mail as an affirmative expression of his client’s

20

intentions in this case.

21

III. Attorney’s Fees

22

Moreover, Plaintiff’s attorney was one of five
Passaretti-Wu Decl.,

All of these attorneys serve as Sill’s co-counsel in

Thus, Plaintiff’s

Under these circumstances, it

Plaintiff seeks an order compelling Defendants to reimburse

23

him for his attorney’s fees and costs incurred in seeking to

24

remand this case.

25

“require payment of just costs and any actual expenses, including

26

attorney fees, incurred as a result of the removal.”

27

the Supreme Court, the “standard for awarding fees should turn on

28

the reasonableness of the removal.”

Title 28 U.S.C. § 1447(c) allows courts to

9

According to

Martin v. Franklin Capital

1

Corp., 546 U.S. 132, 141 (2005).

“Absent unusual circumstances,

2

courts may award attorney’s fees . . . only where the removing

3

party lacked an objectively reasonable basis for seeking removal.”

4

Id.
Here, Defendant lacks an “objectively reasonable basis” for

5
6

seeking removal.

The Judicial Council has not yet decided whether

7

to coordinate the seven original propoxyphene cases filed in

8

California, let alone later-filed actions such as this one.

9

Defendant should have recognized that this fact would preclude

United States District Court
For the Northern District of California

10

removal.

11

three other district courts had already held that it was premature

12

to remove any propoxyphene case while the coordination petition

13

remains pending.

14

361168, at *3; L.B.F.R., Case No. 12-10025-ODW, Docket No. 8, at

15

3.

16

case; Defendant’s assertion that Plaintiff’s counsel consented to

17

coordination “by not objecting” to an e-mail addressed to a non-

18

party is untenable for reasons outlined above.

19

Defendant’s interpretation of CAFA’s “mass action” provision

20

presented a close legal question, Defendant still lacked a

21

reasonable basis for seeking to remove this case when it did.

22

Accordingly, Plaintiff’s request for fees and costs is granted.

23

Indeed, by the time Defendant filed its opposition here,

Rice, 2013 WL 97738, at *3; Posey, 2013 WL

Plaintiff himself has not made any effort to coordinate this

In sum, even if

In this circuit, courts calculate an award of attorneys’ fees

24

using the lodestar method, whereby the court multiplies “the

25

number of hours the prevailing party reasonably expended on the

26

litigation by a reasonable hourly rate.”

27

Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008).

28

an award of attorney’s fees bears the burden of producing
10

Camacho v. Bridgeport
The party seeking

1

“satisfactory evidence -- in addition to the attorney’s own

2

affidavits -- that the requested rates are in line with those

3

prevailing in the community for similar services by lawyers of

4

reasonably comparable skill, experience and reputation.”

5

980.

6

records, affidavits, or other documentation supporting his motion

7

for fees and costs.

8
9

Id. at

In the present case, Plaintiff failed to produce any billing

Thus, within seven days of this order, Plaintiff may submit a
supplemental brief, not to exceed three pages, with supporting

United States District Court
For the Northern District of California

10

documentation to address his request for fees and costs.

11

Defendant may oppose the request in a brief, not to exceed three

12

pages, which shall be submitted no more than seven days after

13

Plaintiff files his brief.

14

within two days of Defendant’s opposition.

15

decided on the papers.

The matter will be

CONCLUSION

16
17

Plaintiff may file a two-page reply

For the reasons set forth above, Plaintiff’s motion to remand

18

(Docket No. 17) is GRANTED.

19

dates and remand this case to Marin County Superior Court.

20

The Clerk shall vacate all future

Plaintiff’s motion for attorney’s fees and costs is GRANTED.

21

The Court will determine the amount of the award based on the

22

parties’ supplemental briefing.

23

IT IS SO ORDERED.

24
25
26

Dated: February 25, 2013

CLAUDIA WILKEN
United States District Judge

27
28
11