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)

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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

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