Fishman et al v. Amylin Pharmaceuticals, LLC et al

Filing 13

ORDER granting Plaintiffs' Unopposed 9 Motion to Remand to State Court(Certified copy sent to State Court via US Mail Service.). Signed by Judge Anthony J. Battaglia on 10/15/13. (cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IN RE: INCRETIN MIMETICS
PRODUCTS LIABILITY
11 LITIGATION,
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NORMA FISHMAN, et al.,

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v.

Plaintiff,

AMYLIN PHARMACEUTICALS,
LLC f/k/a AMYLIN
16 PHARMACEUTICALS, INC.;
McKESSON CORPORATION;
17 CARDINAL HEALTH, INC.;
AMERISOURCEBERGEN
18 CORPORATION; ELI LILLY; AND
DOES 1 THROUGH 100,
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Defendants.

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Civil Case No.13cv1927 AJB (MDD)
Lead Case:
MDL Case No.13md2452 AJB (MDD)
ORDER GRANTING PLAINTIFFS’
UNOPPOSED MOTION TO
REMAND
(Doc. No. 9)

On August 19, 2013, Defendants Amylin Pharmaceuticals, LLC f/k/a Amylin

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Pharmaceuticals, Inc. (“Amylin”) and Eli Lilly and Company (“Eli Lilly”) removed this

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action from San Diego Superior Court. (Doc. No. 1.) Defendants Amylin and Eli Lilly

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asserted removal was proper, even though McKesson Corporation (“McKesson”),

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Cardinal Health, Inc. (“Cardinal Health”), and AmerisourceBergen Corporation

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(“Amerisource”) did not consent to the removal, because McKesson, Cardinal Health,

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and Amerisource were fraudulently joined. (Id. at ¶ 17.) On September 18, 2013,

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Plaintiffs filed a motion to remand for lack of subject matter jurisdiction. (Doc. No. 9.)
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13cv1927 AJB (MDD), Lead MDL Case:13md2452 AJB (MDD)

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In accordance with the Court’s scheduling order, On October 2, 2013, Defendants

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Amylin and Eli Lilly filed a response to Plaintiffs’ motion, thereby consenting to the

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remand of this action. (Doc. No. 12.) However, as of the date of this order, Defendants

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McKesson, Cardinal Health, and Amerisource have not filed an opposition, or otherwise

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responded to Plaintiffs’ motion to remand. The Ninth Circuit has held that pursuant to a

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local rule, a district court may properly grant a motion for failure to respond. See Ghazali

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v. Moran, 46 F.3d 52, 53 (9th Cir.1995) (per curiam) (affirming dismissal for failure to

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timely file opposition papers in accordance with local rules). Civil Local Rule 7.1.f.3.c

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expressly provides that “[i]f an opposing party fails to file the papers in the manner

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required by Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a

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motion or other request for ruling by the court.” Accordingly, for the reasons set forth

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above, the Court GRANTS Plaintiffs’ unopposed motion to remand. (Doc. No. 9.) The

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Clerk of Court is instructed to remand the action to San Diego Superior Court.

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IT IS SO ORDERED.

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DATED: October 15, 2013

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Hon. Anthony J. Battaglia
U.S. District Judge

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13cv1927 AJB (MDD), Lead MDL Case:13md2452 AJB (MDD)