State of Hawaii v. Bristol-Myers Squibb Company

Filing 40

ORDER Granting 23 Plaintiff's Motion For Remand. Signed by JUDGE HELEN GILLMOR on 7/15/14. (gab, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAII, EX REL. DAVID
M. LOUIE, ATTORNEY GENERAL,
Plaintiff,
vs.
BRISTOL-MYERS SQUIBB COMPANY;
SANOFI-AVENTIS U.S. LLC;
SANOFI US SERVICES INC.,
FORMERLY KNOWN AS SANOFIAVENTIS U.S. INC.;
SANOFI-SYNTHELABO INC.;
DOE DEFENDANTS 1-100,
Defendants.

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Civ. No. 14-00180 HG-RLP

ORDER GRANTING PLAINTIFF’S MOTION FOR REMAND (ECF NO. 23)
Plaintiff State of Hawaii, by its Attorney General David M.
Louie, filed a Complaint in Hawaii state court asserting claims
against Defendants for violations of Hawaii state laws for false,
deceptive, and unfair marketing of the prescription drug Plavix.
The Attorney General of the State of Hawaii’s Complaint seeks
civil penalties, declaratory and injunctive relief, disgorgement
of Defendants’ profits, and punitive damages.
Defendants Bristol-Myers Squibb Company, Sanofi-Aventis U.S.
LLC, Sanofi US Services Inc., and Sanofi-Synthelabo Inc. removed

1

the action to federal court based on the class action provision
of the Class Action Fairness Act, the False Claims Act, and
federal question jurisdiction.

Plaintiff filed a Motion to

Remand the action to Hawaii state court.

Defendants oppose the

Motion.
Plaintiff’s Motion for Remand (ECF No. 23) is GRANTED.

PROCEDURAL HISTORY
On March 19, 2014, Plaintiff State of Hawaii, by its
Attorney General David M. Louie, filed a Complaint in the Circuit
Court of the First Circuit, State of Hawaii.

(Complaint,

attached as Ex. A. to Defendants’ Notice of Removal, ECF. No. 11).
On April 16, 2014, Defendants Bristol-Myers Squibb Company,
Sanofi-Aventis U.S. LLC, Sanofi US Services Inc., and SanofiSynthelabo Inc. removed the action to the United States District
Court, District of Hawaii.

(ECF No. 1).

On April 17, 2014, Defendants Bristol-Myers Squibb Company,
Sanofi-Aventis U.S. LLC, Sanofi US Services Inc., and SanofiSynthelabo Inc. filed a NOTICE OF POTENTIAL TAG-ALONG concerning
the removed case with the United States Judicial Panel on
Multidistrict Litigation in MDL No. 2418, IN RE: Plavix
Marketing, Sales Practices and Products Liability Litigation (No.
II).

(ECF No. 363).

2

On April 22, 2014, the United States Judicial Panel on
Multidistrict Litigation in MDL No. 2418 filed a CONDITIONAL
TRANSFER ORDER for the removed case.

(ECF No. 364).

On April 29, 2014, Plaintiff filed a NOTICE OF OPPOSITION TO
CONDITIONAL TRANSFER ORDER with the United States Judicial Panel
on Multidistrict Litigation in MDL No. 2418.

(ECF No. 366).

On April 30, 2014, the United States Judicial Panel on
Multidistrict Litigation in MDL No. 2418 issued a briefing
schedule for Plaintiff’s NOTICE OF OPPOSITION TO CONDITIONAL
TRANSFER ORDER.

(ECF No. 367).

On May 5, 2014, Plaintiff filed PLAINTIFF’S MOTION FOR
REMAND in this Court.

(ECF No. 23).

Also on May 5, 2014, Plaintiff filed an EX PARTE MOTION TO
SHORTEN TIME FOR HEARING ON PLAINTIFF’S MOTION FOR REMAND.

(ECF

No. 24).
On May 7, 2014, Defendants Bristol-Myers Squibb Company,
Sanofi-Aventis U.S. LLC, Sanofi US Services Inc., and SanofiSynthelabo Inc. filed DEFENDANTS’ CROSS-MOTION TO STAY
PROCEEDINGS.

(ECF No. 25-1).

On the same date, Bristol-Myers Squibb Company, SanofiAventis U.S. LLC, Sanofi US Services Inc., and Sanofi-Synthelabo
Inc. filed DEFENDANTS’ MEMORANDUM IN OPPOSITION TO EX PARTE
MOTION TO SHORTEN TIME FOR HEARING ON PLAINTIFF’S MOTION TO
REMAND AND MEMORANDUM IN SUPPORT OF CROSS-MOTION TO STAY

3

PROCEEDINGS.

(ECF No. 25).

On May 8, 2014, Plaintiff filed REPLY IN SUPPORT OF
PLAINTIFF’S EX PARTE MOTION TO SHORTEN TIME FOR HEARING ON
PLAINTIFF’S MOTION FOR REMAND.

(ECF No. 27).

On May 9, 2014, the Court issued a Minute Order denying
PLAINTIFF’S EX PARTE MOTION TO SHORTEN TIME FOR HEARING ON
PLAINTIFF’S MOTION FOR REMAND and denying DEFENDANTS’ CROSSMOTION TO STAY PROCEEDINGS.

(ECF No. 28).

The Minute Order set

the briefing schedule and hearing date for PLAINTIFF’S MOTION FOR
REMAND.

(Id.)

On May 22, 2014, Defendants Bristol-Myers Squibb Company,
Sanofi-Aventis U.S. LLC, Sanofi US Services Inc., and SanofiSynthelabo Inc. filed a MEMORANDUM IN OPPOSITION TO PLAINTIFF’S
MOTION FOR REMAND.

(ECF No. 32).

On June 3, 2014, Plaintiff filed a REPLY.

(ECF No. 33).

On June 16, 2014, a Hearing on PLAINTIFF’S MOTION FOR REMAND
(ECF No. 23) was held.

(ECF No. 34).

On June 18, 2014, Defendants Bristol-Myers Squibb Company,
Sanofi-Aventis U.S. LLC, Sanofi US Services Inc., and SanofiSynthelabo Inc. filed a NOTICE OF ADDITIONAL AUTHORITY IN
OPPOSITION TO PLAINTIFF’S MOTION TO REMAND.

(ECF No. 35).

On June 20, 2014, Plaintiff filed an OBJECTION TO
DEFENDANTS’ SUBMISSION OF ADDITIONAL AUTHORITY IN OPPOSITION TO
PLAINTIFF’S MOTION TO REMAND.

(ECF No. 36).

4

On July 8, 2014, the Court issued a Minute Order granting
Plaintiff’s Motion to Remand and indicating a written order would
be filed at a later date.

(ECF No. 38).

On July 9, 2014, Defendants filed a MOTION FOR STAY OF
MINUTE ORDER, FILED JULY 8, 2014.

(ECF No. 39).

BACKGROUND

The Attorney General of the State of Hawaii alleges in the
Complaint that from March 1998 until the present Defendants
Bristol-Myers Squibb Company, Sanofi-Aventis U.S. LLC, Sanofi US
Services Inc., and Sanofi-Synthelabo Inc. (“Defendants”) engaged
in false, deceptive, and unfair marketing and promotion of the
prescription drug Plavix.

(Complaint, attached as Ex. A. to

Defendants’ Notice of Removal, ECF. No. 1-1).
The Complaint asserts that Plavix is an anti-platelet drug
that was approved by the Food and Drug Administration (“FDA”) to
reduce heart attacks, strokes, and vascular death.
24).

(Id. at ¶¶ 1,

Plaintiff states Plavix was also approved to treat

different types of Acute Coronary Syndrome.

(Id. at ¶ 24).

Plaintiff claims that from March 1998 until March 2010,
Defendants failed to disclose that the drug has diminished or no
effect on approximately 30% of the patient population.
¶¶ 2, 25-26, 28, 39).

(Id. at

The Complaint alleges that Defendants

marketed higher doses of Plavix for patients in which Plavix has

5

diminished or no effect.

(Id. at ¶¶ 2, 30, 50).

Plaintiff

asserts Plavix presents a considerable risk of gastrointestinal
bleeding and other complications for patients in which Plavix has
diminished or no effect.

(Id. at ¶¶ 2, 35, 54, 59-61).

The Complaint alleges that Defendants marketed and promoted
Plavix as a replacement for aspirin to treat patients at risk for
restricted blood flow.

(Id. at ¶¶ 3, 44-47, 57).

Plaintiff

claims that Defendants ignored, concealed, and minimized clinical
data that found Plavix is only as effective, or less effective,
than aspirin, despite costing one hundred times more than
aspirin.

(Id.)

The Complaint alleges that Defendants falsely and
misleadingly marketed Plavix as being more effective and safer
than other competitor drugs.

(Id. at ¶¶ 3, 4, 49).

Plaintiff

alleges Defendants marketed Plavix for uses for which the drug
had not been shown to be effective or safe.

(Id. at ¶ 4, 48, 51,

66).
The Complaint states that the action is brought “exclusively
under the law of the State of Hawaii.”

(Id. at ¶ 7).

The

Complaint seeks relief pursuant to:
Count I:

Section 480-1, et seq. of the Hawaii Revised
Statutes (“HRS”) for Unfair or Deceptive Acts
or Practices, (Complaint, Ex. A at ¶¶ 78-97,
ECF No. 1-1);

Count II:

HRS § 480-13.5 for Consumer Frauds Against
Elders, (id. at ¶¶ 98-101);

6

Count III:

HRS § 661-21, et seq. for the Hawaii False
Claims Act, (id. at ¶¶ 102-116);

Count IV:

Unjust Enrichment, (id. at ¶¶ 117-121); and,

Count V:

Punitive Damages, (id. at 122-125).

The Complaint seeks civil penalties, “disgorgement of
Defendants’ wrongfully acquired profits from the sale of Plavix
in the State or Hawaii on or after March 17, 1998 through the
present, and punitive damages.”

(Id. at p. 31).

seeks declaratory and injunctive relief.

Plaintiff also

(Id.)

The Complaint states the suit is a parens patriae action
brought by the State through Attorney General David M. Louie.
(Id. at ¶ 9).

Plaintiff asserts the action is brought “solely by

the State and wholly independent of any claims that individual
users of Plavix may have against Defendants.”

(Id. at ¶ 8).

STANDARD OF REVIEW
A motion to remand may be brought to challenge the removal
of an action from state to federal court.

28 U.S.C. § 1447(c);

Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th
Cir. 2009).

Removal of a civil action is permissible if the

district courts of the United States have original jurisdiction
over the action.

28 U.S.C. § 1441.

There is a “strong presumption” against removal, and
“[f]ederal jurisdiction must be rejected if there is any doubt as
7

to the right of removal in the first instance.”

Gaus v. Miles,

Inc., 980 F.2d 564, 566 (9th Cir. 1992) (internal citations
omitted).

The “strong presumption” against removal jurisdiction

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

Id.
ANALYSIS

I.

DEFENDANTS ALLEGE THE DISTRICT COURT HAS JURISDICTION
PURSUANT TO THE CLASS ACTION PROVISION OF THE CLASS ACTION
FAIRNESS ACT

Defendants assert that the class action provision of the
Class Action Fairness Act (“CAFA”) provides the Court with
jurisdiction over Plaintiff’s Complaint.

Defendants do not seek

removal of Plaintiff’s Complaint based on the mass action
provision of CAFA.
CAFA vests federal district courts with original
jurisdiction over certain class and mass actions.
§ 1332(d).

28 U.S.C.

The burden of establishing removal jurisdiction under

CAFA remains on the proponent of federal jurisdiction.

Abrego v.

Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006) (per curiam).
The class action provision of CAFA provides the federal
district courts with original jurisdiction over class actions if:
(1) the class has more than 100 members: (2) the parties are
minimally diverse; and, (3) the matter in controversy exceeds the

8

sum or value of $5,000,000.

Standard Fire Ins. Co. v. Knowles,

133 S.Ct. 1345, 1348 (2013).
The term “class action” means any civil action filed under
Rule 23 of the Federal Rules of Civil Procedure or a similar
State statute or rule of judicial procedure authorizing an action
to be brought by one or more representative persons as a class
action.

28 U.S.C. § 1332(d)(1).

The mass action provision of CAFA is not at issue here.1
Here, Defendants attempt to invoke the class action
provision of CAFA to remove Plaintiff’s action from state court
to federal court.
plaintiff.

The State of Hawaii is the only named

(Complaint at ¶ 9, ECF No. 1-1).

The State did not

file suit as a class action.
The United States Supreme Court in January 2014 clearly
stated that the purpose of CAFA legislation was to modify the
diversity requirements for class actions in order to allow class
actions of national importance to be removed to federal court.
State of Mississippi ex rel. Hood v. AU Optronics Corp., 134

1

A mass action requires one hundred or more persons who
are proposed to be tried jointly on the ground that the
plaintiffs’ claims involve common questions of law or fact. 28
U.S.C. § 1332(d)(11)(B)(i); Romo v. Teva Pharmaceuticals USA,
Inc., 731 F.3d 918, 920 (9th Cir. 2013). The mass action
provision requires minimal diversity between the parties. 28
U.S.C. §§ 1332(d)(2)(A), 11(A). Federal jurisdiction over a mass
action exists only over those plaintiffs’ whose claims
individually satisfy a minimum $75,000 amount in controversy. 28
U.S.C. §§ 1332(a), (d)(11)(B)(i).
9

S.Ct. 736, 739 (2014).

The Supreme Court explained that a

representative action filed by the attorney general of a State as
the sole named plaintiff was not the type of case Congress
intended to be removable pursuant to CAFA.

Id. at 774-76.

The parens patriae representative action filed by the
Attorney General of the State of Hawaii is not removable pursuant
to the class action provision of CAFA.

A.

Plaintiff’s Suit is Not a Class Action

CAFA provides for the removal of a state court proceeding to
federal court if the suit was filed as a class action pursuant to
a rule similar to Federal Rule of Civil Procedure 23.

28 U.S.C.

§ 1332(d)(1); Washington v. Chimei Innolux Corp., 659 F.3d 842,
849 (9th Cir. 2011).
1.

The Complaint Does Not Rely on Any State Statute
or Rule of Judicial Procedure That is Similar to
Federal Rule of Civil Procedure 23

A state statute or rule is similar to Federal Rule of Civil
Procedure 23 if it closely resembles Rule 23 or is like Rule 23
in substance.

Baumann v. Chase Inv. Services Corp., 747 F.3d

1117, 1121-22 (9th Cir. 2014).

Federal Rule of Civil Procedure

23 allows for class actions “only if”:
(1)

the class is so numerous that joinder of all members is
impracticable;
10

(2)

there are questions of law or fact common to the class;

(3)

the claims or defenses of the representative parties
are typical of the claims or defenses of the class; and

(4)

the representative parties will fairly and adequately
protect the interests of the class.

Fed. R. Civ. P. 23(a).

“A class action cannot be maintained

unless one of the three requirements of Rule 23(b) is also met.”
Baumann, 747 F.3d at 1122.

Certification of the class is subject

to the detailed notice requirements of Rule 23(c).

Id.

The action filed here by the Attorney General of the State
of Hawaii is not brought pursuant to any State statute or rule
that is similar to Rule 23, triggering CAFA jurisdiction.

The

Complaint relies on Sections 480-2(d), 660-10, and 661-21 in the
Hawaii Revised Statutes (“HRS”) for the Attorney General of
Hawaii’s authority to bring the civil action.

(Complaint at ¶¶

9, 82, 104, ECF No. 1-1).
Review of the Hawaii Revised Statutes the Attorney General
relies upon produces no similarity to Federal Rule of Civil
Procedure 23.

HRS § 480-2(d) provides the Attorney General of

Hawaii with the authority to bring a civil action for a violation
of Hawaii’s Unfair and Deceptive Practices Act.

Section 480-2(d)

states:
No person other than a consumer, the attorney general
or the director of the office of consumer protection
may bring an action based upon unfair or deceptive acts
or practices declared unlawful by this section.
11

HRS § 660-10 provides broad authority for the Attorney
General of Hawaii to act on behalf of the State to bring a civil
action.

HRS § 660-10 states:

Whenever it is necessary or desirable for the State in
order to collect or recover any money or penalty, or to
recover or obtain the possession of any specific
property, real or personal, or to enforce any other
right (except in respect to criminal prosecutions) to
institute judicial proceedings, except as otherwise
expressly provided by law, the attorney general may
bring and maintain an action or actions for any such
purpose in any appropriate court or courts. All such
actions shall be entitled in the name of the State by
the attorney general, against the party or parties or
thing sued, as defendants.
The Complaint also relies on HRS § 661-22, which authorizes
the Attorney General of Hawaii to bring a civil action pursuant
to the Hawaii False Claims Act.

HRS § 661-22 provides that if

“the attorney general finds that a person has violated or is
violating [the Hawaii False Claims Act], the attorney general may
bring a civil action under this subsection.”
The Complaint cites two additional state statutes for the
Attorney General’s authority to obtain specific types of relief
for violations of Hawaii’s Unfair and Deceptive Practices Act.
Plaintiff relies on HRS § 480-3.1 for the Attorney General’s
authority to recover fines.

(Complaint at ¶ 9, ECF No. 1-1).

The Complaint invokes HRS § 480-15 for the Attorney General’s
authority to seek an injunction.

Id.

Federal Rule of Civil Procedure 23 requires a plaintiff to

12

demonstrate numerosity, commonality, typicality, and adequate
representation of the class interest in order to bring a class
action.

Marlo v. United Parcel Servic., Inc., 639 F.3d 942, 946

(9th Cir. 2011).

None of the sections of the Hawaii Revised

Statutes relied on by the Attorney General in the Complaint
contain similar requirements.

2.

A Parens Patriae Action

The Complaint states that the suit is a parens patriae
action.

The Ninth Circuit Court of Appeals has distinguished

parens patriae actions brought by state attorneys general from
class actions.

Chimei Innolux Corp., 659 F.3d at 847; Nevada v.

Bank of America Corp., 672 F.3d 661, 667 (9th Cir. 2012).

The

doctrine of parens patriae allows a state to bring suit on behalf
its citizens when the state:
(1)

alleges injury to a substantial portion of its
population;

(2)

articulates an interest separate from the interests of
particular private parties; and

(3)

expresses a quasi-sovereign interest.

Chimei Innolux Corp., 659 F.3d at 847.

In Alfred L. Snapp &

Son, Inc. v. Puerto Rico, the United States Supreme Court
reviewed the purpose of the parens patriae doctrine, which allows
the State to bring an action to protect its “quasi-sovereign
13

interest in the health and well-being-both physical and economicof its residents in general.”

458 U.S. 592, 607 (1982).

The Ninth Circuit Court of Appeals has found that parens
patriae suits brought by state attorneys general to protect their
citizens from unfair and deceptive practices are not class
actions removable pursuant to CAFA.

In Chimei Innolux Corp., 659

F.3d at 847, the attorneys general of the States of California
and Washington filed actions in their state courts alleging
violations of state antitrust laws against manufacturers and
distributors of liquid crystal display panels.

Id. at 846.

The

defendants removed the cases to federal court on the basis that
the States’ parens patriae suits were class actions removable
pursuant to CAFA.

Id.

The district court found removal was

improper and granted the States’ motions to remand.
defendants appealed.

Id.

The

Id.

The Ninth Circuit Court of Appeals affirmed the district
court’s decision to remand the States’ parens patriae suits.

Id.

The appellate court held the parens patriae suits brought by the
state attorneys general were not class actions.

Id.

The

appellate court explained the suits were not removable because
they were not brought pursuant to either Federal Rule of Civil
Procedure 23 or a similar state statute.

Id. at 850.

The Ninth

Circuit Court of Appeals found the state statutes in California
and Washington that provided the attorneys general with parens

14

patriae authority to bring a civil suit lacked the defining
attributes of class actions.

Id. at 850.

Here, the Attorney General of the State of Hawaii filed a
parens patriae suit.

Parens patriae suits “resemble” class

actions in the sense that they are representative suits.
Innolux Corp., 659 F.3d at 847.
however, are class actions.

Chimei

Not all representative suits,

Parens patriae suits lack the

defining attributes of true class actions.

Id.

The parens

patriae suit brought by the Attorney General of Hawaii is not a
class action.
3.

The Complaint Was Not Filed As a Class Action
Pursuant to HRS § 480-14(b)

Defendants argue that Plaintiff is required to bring the
present parens patriae action pursuant to HRS § 480-14(b).
Defendants assert that HRS § 480-14(b) requires the Attorney
General of Hawaii to bring any suit for unfair and deceptive
practices as a class action.

(Opposition at p. 5, ECF No. 32).

The Hawaii Supreme Court has held that nothing in the Hawaii
Unfair and Deceptive Practices Act indicates that the remedies
available in HRS § 480 are exclusive.

Villon v. Marriott Hotel

Services, Inc., 306 P.3d 175, 187 (Haw. 2013).

In Villon, the

Hawaii Supreme Court found that there is not an exclusivity
provision in HRS § 480 that precludes enforcement of violations
of unfair or deceptive practices through another Chapter of the
15

Hawaii Revised Statutes.

Id. at 188.

In Villon, hotel food and beverage service employees alleged
that their employers billed service charges to customers and did
not distribute the full services charges directly to the
employees.

Id. at 178-79.

The employees also claimed that the

hotels did not disclose this practice to the customers.

Id.

The

employees filed a class action asserting that the hotels violated
HRS § 481B of the Hawaii Unfair and Deceptive Practices Act and
sought remedies pursuant to Hawaii’s wage payment statutes in HRS
§ 388.

Id. at 178-79.

The Hawaii Supreme Court accepted a

certified question on whether the employees could bring a claim
against the hotels pursuant to HRS § 388 or whether HRS § 481B-14
of the Hawaii Unfair and Deceptive Practices Act was the
exclusive means for bringing their claim.

Id. at 177-78.

The Hawaii Supreme Court concluded that employees could
bring an action pursuant to HRS § 388 for violations of HRS §
481B-14.

Id. at 186.

The Hawaii Supreme Court determined that

the hotel employees were not limited to the rights and remedies
in HRS § 481B-14 of the Hawaii Unfair and Deceptive Practices
Act.

Id. at 186-87.

The Court explained that the “plain

language of Chapters 480 and 481B does not indicate that remedies
therein are exclusive.

The legislature knows how to craft an

exclusivity provision....No such exclusivity provision appears in
the relevant enforcement statues in the consumer protection

16

area.”

Id. at 187.

The Complaint here does not rely on HRS § 480-14(b).

HRS §

480-14(b) expressly permits the Attorney General of the State of
Hawaii to bring a parens patriae action to recover damages on
behalf of Hawaii consumers.2

HRS § 480-14(b), however, is not

the exclusive means for the Attorney General to bring an unfair
or deceptive practices claim.
In Hawaii ex rel. Louie v. JP Morgan Chase & Co., 907
F.Supp.2d 1188, 1204-07 (D. Haw. 2012), the district court
considered a nearly identical argument regarding whether HRS §
480-14(b) is the exclusive means for the Attorney General of the
State of Hawaii to bring an unfair and deceptive practices claim.
The Attorney General filed complaints in state court against a
number of banks alleging they engaged in deceptive and predatory
practices in marketing and selling credit card products to Hawaii
residents.

Id. at 1192.

The defendants removed the actions to

2

HRS § 480-14(b) provides:

The attorney general of the State shall be authorized
to being a class action for indirect purchasers
asserting claims under this chapter. The attorney
general or the director of the office of consumer
protection may bring a class action on behalf of
consumers based on unfair or deceptive acts or
practices declared unlawful by section 480-2. Actions
brought under this subsection shall be brought as
parens patriae on behalf of natural persons residing in
the State to secure threefold damages for injuries
sustained by the natural persons to their property by
reason of any violation of this chapter.
17

the federal district court pursuant to the class action provision
in CAFA.

Id. at 1192-93.

The defendants took the position that

the Attorney General of Hawaii was required to bring a class
action pursuant to HRS § 480-14(b), claiming 480-14(b) is the
only provision which authorizes the Attorney General to bring a
claim on behalf of consumers pursuant to the Hawaii Unfair and
Deceptive Practices Act.

Id. at 1197.

The Attorney General of Hawaii filed motions to remand.
at 1193-95.

Id.

The Attorney General pointed out that the actions

were not filed as class actions and that CAFA did not apply
because the complaints did not rely on HRS § 480-14(b).

Id. at

1193-95.
The district court in JP Morgan Chase & Co. held that the
proceedings were not removable pursuant to CAFA.

Id. at 1207.

The district court acknowledged that Section 480-14(b) does
provide the Attorney General with the authority to bring a class
action claim on behalf of consumers.

Id. at 1204.

The Court,

however, relied upon the Attorney General’s statement that he was
not bringing the actions on behalf of a class and “interpret[ed]
the Complaints as bringing the Attorney General’s parens patriae
claims pursuant to either Hawaii state common law regarding
parens patriae actions or the Attorney General’s general powers
under § 661-10.”

Id. at 1205.

The district court judge did not

review the issue of CAFA jurisdiction any further as the motions

18

to remand were denied on the basis that there was federal
question jurisdiction based on preemption.

Id. at 1212-14.

The Complaint here cites HRS §§ 480-2(d), 660-10, and 661-21
for the Attorney General of the State of Hawaii’s authority to
bring the civil action.
1).

(Complaint at ¶¶ 9, 82, 104, ECF No. 1-

The Complaint here does not seek relief on behalf of

individual consumers.

Just as in Hawaii v. JP Morgan Chase &

Co., the Attorney General of the State of Hawaii has expressly
stated in the Complaint that the suit is not a class action.
(Complaint at ¶ 8, ECF No. 1-1).
The Hawaii Supreme Court has found that the remedies
available in HRS § 480 are not exclusive.
187-88.

Villon, 306 P.3d at

HRS § 480-14(b) is not the exclusive means for the

Attorney General to bring a claim for unfair or deceptive
practices.

B.

Plaintiff’s Suit is Not Removable Pursuant to CAFA
Because There is Not Minimal Diversity

A State that is a real party in interest is not a “citizen
of a State” and cannot sue or be sued in federal court on the
basis of diversity jurisdiction.

Moor v. Cnty of Alameda, 411

U.S. 693, 717 (1973); Urbino v. Okin Services of Calif., Inc.,
726 F.3d 1118, 1123 (9th Cir. 2013).

The presence of the State

on the record as a nominal party will not defeat diversity
jurisdiction if the State has no real interest in the
19

controversy.

Dep’t of Fair Employment & Housing v. Lucent

Technologies, Inc., 642 F.3d 728, 737 (9th Cir. 2011).
CAFA replaced the ordinary requirement of complete diversity
of citizenship among all plaintiffs and defendants with a
requirement of minimal diversity.

Hood, 134 S.Ct. at 740.

Pursuant to CAFA, a federal court may exercise jurisdiction over
a class action or a mass action if any plaintiff is a citizen of
a State different from any defendant.

28 U.S.C. § 1332(d)(2)(A).

In Hood, the United States Supreme Court explained that the realparty-in-interest inquiry may be used “in certain contexts to
look behind the pleadings to ensure the parties are not
improperly creating or destroying diversity jurisdiction.”

134

S.Ct. at 745.
Defendant Bristol-Myers Squibb Company is a Delaware
corporation with its principal corporate offices in New York.
(Complaint at ¶ 10, ECF No. 1-1).

Defendant Sanofi-Aventis U.S.

LLC is a Delaware limited liability company with its headquarters
in New Jersey.

(Id. at ¶ 11).

Defendant Sanofi US Services

Inc., formerly known as Sanofi-Aventis U.S. Inc., is a Delaware
corporation with its corporate offices in New Jersey.
12).

(Id. at ¶

Defendant Sanofi-Synthelabo Inc. is a Delaware corporation.

(Id. at ¶ 13).
The only Plaintiff is the State of Hawaii.

(Id. at ¶ 9).

Defendants argue the State is not a real party in interest.

20

Defendants claim individual consumers in the State are citizens
of Hawaii for diversity purposes.

(Opposition at p. 11, ECF No.

32).
In Nevada v. Bank of America Corp., the Ninth Circuit Court
of Appeals held there was not minimal diversity pursuant to CAFA
in a parens patriae suit brought by the State of Nevada.
F.3d at 670-672.

672

The appellate court explained that the State of

Nevada was the real party in interest and could not serve as “a
citizen of a State” for diversity purposes.

Id.

The district court judge held there was no diversity because
the State of Nevada was a real party in interest, despite its
claim for restitution on behalf of individual consumers.
670.

Id. at

The district court determined that “the fact that a

discrete class of individuals will receive restitution does not
defeat the fact that the gravamen of the action is protection of
the public welfare.”

Id. at 670.

The Ninth Circuit Court of Appeals affirmed the district
court’s determination.

Id. at 670-72.

The appellate court

explained that the examination of the “essential nature and
effect of the proceeding as it appears from the entire record” is
necessary to determine the real party in interest.
(citing Lucent, 642 F.3d at 740).

Id. at 670

The Court rejected the attempt

to examine each individual claim to determine the real party in
interest.

Id.

The Court found that Nevada’s complaint as a

21

whole demonstrated that the State had brought suit to protect the
integrity of mortgage loan servicing in the State.
Bank of America Corp., 672 F.3d at 670.

Nevada v.

The appellate court held

that the State of Nevada was a real party in interest because it
had a specific, concrete interest in eliminating any deceptive
practices that may have contributed to the State’s mortgage
crisis.

Id.

The Nevada v. Bank of America Corp. court found the relief
sought by the State of Nevada supported the finding that it was a
real party in interest.

Id. at 671-72.

Nevada sought civil

penalties that were not available to individual consumers.
at 672.

Id.

The Court explained that “Nevada’s sovereign interest in

protecting its citizens and economy from deceptive mortgage
practices is not diminished merely because it has tacked on a
claim for restitution.”

Id. at 671.

Here, the “essential nature and effect of the proceeding as
it appears from the entire record” demonstrates the State of
Hawaii is a real party in interest.

Lucent, 642 F.3d at 740.

The suit was filed on behalf of the State’s interests.

The State

has a specific, concrete interest in protecting its citizens and
economy from false, unfair and deceptive practices related to
prescription drugs.

Nevada v. Bank of America Corp., 672 F.3d

at 671.
The forms of relief sought by the State of Hawaii support

22

the finding that it is the real party in interest.

Just as the

plaintiff in Nevada v. Bank of America Corp., the State seeks
civil penalties that are not available for individual consumers.
Both HRS §§ 480-3.1 and 480-15.1 provide for fines “which sum
shall be collected in a civil action brought by the attorney
general or the director of the office of consumer protection on
behalf of the State.”
The Complaint’s pleading for disgorgement does not alter the
essential nature of the proceeding as a whole.
not a claim for restitution.

Disgorgement is

Texas American Oil Corp. V. U.S.

Dept. Of Energy, 44 F.3d 1557, 1570 (Fed. Cir. 1995); see United
States v. Fu Sheng Kuo, 620 F.3d 1158, 1160 (9th Cir. 2010).
Disgorgement to obtain ill-gotten gains is separate and apart
from the interests of particular consumers in obtaining
restitution for their payments.

West Virginia ex rel. McGraw v.

CVS Pharmacy, Inc., 646 F.3d 169, 175-76 (4th Cir. 2011).

The

United States Court of Appeals for the Fourth Circuit has found
that a State’s claim for disgorgement does not transform the
proceeding into an action removable pursuant to CAFA.

Id.

The Complaint, read as a whole, demonstrates that the State
of Hawaii is the real party in interest in this action.
State of Hawaii is the only Plaintiff.

The State is not “a

citizen of a State” for diversity purposes.
717.

The

Moor, 411 U.S. at

Minimal diversity between the Parties is not present as

23

required pursuant to CAFA.

28 U.S.C. § 1332(d)(2)(A).

Defendants have failed to establish Plaintiff’s suit is
removable to federal court pursuant to CAFA.

Abrego, 443 F.3d at

685; Hood, 134 S.Ct. at 744.

II.

FEDERAL QUESTION JURISDICTION

A defendant may remove an action from State court to federal
district court if the federal court has original subject matter
jurisdiction over the case.

28 U.S.C. § 1441(a).

Removal is proper if a federal question is apparent on the
face of the plaintiff’s well-pleaded complaint.
Inc. v. Williams, 482 U.S. 386, 392 (1987).

Caterpillar,

The well-pleaded

complaint rule makes the plaintiff the master of the claim, able
to avoid federal jurisdiction by relying exclusively on state
law.

Id.

A.

There Is No Federal Jurisdiction Pursuant to Section
3732(b) of the False Claims Act

Defendants are subject to a qui tam action brought against
them by the United States and a number of other state and local
governments, including the State of Hawaii, in the United States
District Court for the District of New Jersey, In re Plavix
Product Liability and Marketing Litigation, MDL No. 2418, Civ.
No. 13-cv-1039FLW-TJB.

The action alleges Defendants violated
24

the Federal False Claims Act, 31 U.S.C. §§ 3729-3733.
Defendants assert that 31 U.S.C. § 3732(b) of the Federal
False Claims Act provides this Court with original subject matter
jurisdiction over the State’s Complaint.

Section 3732(b)

provides:
Claims Under State Law. The district courts shall have
jurisdiction over any action brought under the laws of
any State for the recovery of funds paid by a State or
local government if the actions arises from the same
transaction or occurrence as an action brought under
section 3730.
District courts have consistently held that Section 3732(b)
does not provide federal district courts with original
jurisdiction.

Hawaii v. Abbott Labs., Inc., Civ. No. 06-0437

DAE-BMK, 469 F.Supp.2d 835, 840-42 (D. Haw. 2006), aff’d, Hawaii
v. Abbott Labs., Inc., 469 F.Supp.2d 842, 849-51 (D. Haw. 2006);
Alaska v. Abbott Labs., Inc., 2007 WL 7538021, *3 (D. Alaska Jan.
22, 2007); In re Pharmaceutical Industry Average Wholesale Price
Litigation, 509 F.Supp.2d 82, 92 (D. Mass. 2007); United States
ex rel. New Mexico v. Deming Hosp. Corp., 2013 WL 7046410 *24 (D.
N.M. Nov. 21, 2013).
In Hawaii v. Abbot Labs., Inc., the district court
determined that “a state-initiated case founded on state law may
be removed to federal court under 31 U.S.C. § 3732(b) only when
the case may attach to a federal case that ‘arises from the same
transaction or occurrence.’

In other words, the state case could

not be removed on its own merit, independent of the federal
25

action, because removal of the state case ‘depends’ on the
existence of and the attachment to a similar federal case.”

469

F.Supp.2d at 849.
Section 3732(b) provides a State with the discretion to
intervene in a Federal Claims Act action for recovery of state
funds.

Id. at 849-50.

Section 3732(b) does not allow a

defendant to force a State into a federal forum.

Id.

Congress

did not intend for Section 3732(b) to “strip states of their
ability to bring state law claims in state court.”

In re

Pharmaceutical Industry Average Wholesale Price Litigation, 509
F.Supp.2d at 93.
Section 3732(b) provides for supplemental jurisdiction but
it does not provide a basis to remove a state court action to
federal court.
34 (2002).

Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28,

Here, the State chose to bring its action in state

court and not to join the current action with the qui tam
proceeding filed by the United States.

Section 3732(b) does not

permit Defendants to remove the State of Hawaii’s state court
action to federal court.

B.

There Is No Federal Jurisdiction Based On a Significant
Federal Interest

28 U.S.C. § 1331 provides federal courts with original
jurisdiction over all civil actions “arising under the
Constitution, laws, or treaties of the United States.”
26

Although

the statute is usually invoked for violations of federal law, it
can provide federal jurisdiction over certain state law claims.
Grable & Sons Metal Prod, Inc. v. Darue Eng’g & Mfg., 545 U.S.
308, 312 (2005).
Federal jurisdiction will lie over state law claims that
implicate a significant federal interest, if federal jurisdiction
would not disturb a congressionally approved balance of federal
and state judicial responsibilities.

This type of jurisdiction

has come to be known as “arising under” jurisdiction.

Grable,

545 U.S. at 312.
In Grable, the United States Supreme Court found there was
necessary, disputed, and substantial questions of federal law
involved in a plaintiff’s state law claim alleging the Internal
Revenue Service had seized his property without proper notice.
545 U.S. at 315.

The Supreme Court held there was federal

question jurisdiction because an integral element of the
plaintiff’s state law claim was that the IRS had not satisfied
the notice provisions required by a federal statute.

Id.

meaning of the federal statute was actually in dispute.

The

Id.

The

Supreme Court explained that the federal government had a strong
and particular interest in ensuring a correct interpretation of
its tax laws.

Id.

The Supreme Court held that federal

jurisdiction over the plaintiff’s state law claim would not
significantly disturb the division of labor between state and

27

federal courts because other state title actions would rarely
raise similar federal issues.

Id.

The Ninth Circuit Court of Appeals has cautioned that
jurisdiction over federal issues embedded in state law claims
applies to a “special and small category of cases.”

Nevada v.

Bank of America Corp., 672 F.3d at 674 (citing Empire
Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 698
(2006)).

A state statute’s “glancing reference to federal law”

is insufficient to confer federal jurisdiction over the state law
claim.

Nevada, 672 F.3d at 676.

Plaintiff’s Complaint raises only state law claims.

The

Complaint claims “[t]he State brings this action exclusively
under the law of the State of Hawaii.”
No. 1-1).

(Complaint at ¶ 7, ECF

“No federal claims are being asserted, and to the

extent that any claim or factual assertion set forth herein may
be construed to have stated any claim under federal law, such
claim is expressly and undeniably disavowed by the State.” (Id.)
Several federal district courts have previously found that
there was no federal jurisdiction for state law claims alleging
that Plavix was marketed in a false, unfair, or deceptive way.
Cnty of Santa Clara ex rel. Marquez v. Bristol Myers Squibb Co.,
2012 WL 4189126, *5-7 (N.D. Cal. Sept. 17, 2012); Caldwell v.
Bristol Myers Squibb Co., 2012 WL 3862454, *7-12 (W.D. La. June
12, 2012); Caldwell v. Bristol Myers Squibb Co., 2012 WL 3866493,

28

*3 (W. D. La. Sept. 4, 2012); West Virginia ex rel. McGraw v.
Bristol Myers Squibb Co., 2014 WL 793569, *7-9 (D. N.J. Feb. 26,
2014).

1.

Plaintiff’s Complaint Does Not Involve Necessary
and Substantial Questions of Federal Medicaid Law

Defendants attempt to distinguish the State of Hawaii’s
Complaint by arguing that the Hawaii False Claims Act implicates
substantial and necessary federal issues relating to the federal
Medicaid regulations and the federal Food, Drug, and Cosmetics
Act.
Medicaid is a cooperative state-federal program in which the
federal government approves a state plan to fund medical services
for low-income residents and then reimburses a portion of the
state’s expenses.
2014).

Korab v. Fink, 748 F.3d 875, 879 (9th Cir.

A state’s participation in Medicaid is voluntary but

states must comply both with the statutory requirements of the
Medicaid Act and with regulations promulgated by the Secretary of
Health and Human Services in order to receive federal funds.
The Complaint does not explicitly refer to Medicaid.

Id.

The

Complaint states a number of allegations pursuant to the Hawaii
False Claims Act.

The Hawaii False Claims Act is nearly

identical to the federal False Claims Act.

The essential

elements of liability pursuant to the Hawaii False Claims Act
are: (1) a false statement or fraudulent course of conduct, (2)
29

made with scienter, (3) that was material, causing (4) the
government to pay money or forfeit moneys due.

United States ex

rel. Woodruff v. Hawaii Pacific Health, 560 F.Supp.2d 988, 997
(D. Haw. 2008).
The Complaint alleges that the Defendants violated the
Hawaii False Claims Act by knowingly causing false claims for
payment to be presented to the State.
ECF No. 1-1).

(Complaint at ¶¶ 106-114,

Plaintiff asserts that the Defendants caused false

claims to be made to the State through their alleged false and
misleading marketing of Plavix.

(Id.)

Plaintiff also claims the

Defendants’ are liable because of their alleged failure to
disclose information about Plavix’s safety and efficacy.

(Id.)

Federal district courts have found a State’s suit seeking
recovery for fraudulent payments for prescription drugs does not
involve necessary and substantial federal issues.

Hood ex rel.

Mississippi v. AstraZeneca Pharms, LP, 744 F.Supp.2d 590, 600-02
(N.D. Miss. 2010) (listing a number actions brought by states
against pharmaceutical companies for recovery of Medicaid funds
paid by the states that have been remanded);

Pennsylvania v. Eli

Lilly & Co., Inc., 511 F.Supp.2d 576, 582 (E.D. Pa. 2007); Hawaii
v. Abbott Laboratories, Inc., 469 F.Supp.2d 842, 855-56 (D. Haw.
2006).
In Pennsylvania v. Eli Lilly & Co., Inc., 511 F.Supp.2d at
582, the district court found a state action for fraud against

30

pharmaceutical companies did not involve necessary federal
questions related to the Medicaid laws.

Id.

The district court

explained that the central questions in the state law causes of
action were factual and not legal.

Id.

The state law causes of

action involved whether the defendants’ advertising and promotion
methods violated Pennsylvania tort law, not Medicaid regulations.
Id. at 581.

The district court explained that liability “does

not depend on the violation of any federal standard or statute.”
Id.

The district court found that the State needed to

demonstrate that the defendants caused “the submission of a false
or fraudulent claim” pursuant to state law, not federal law.

Id.

at 582.
The district court judge in Pennsylvania v. Eli Lilly & Co.,
Inc. concluded that the issue of whether the State could have
refused to pay for the prescriptions under its Medicaid program
did not involve a substantial federal issue.

Id. at 584.

The

judge found that the “mere presence of a federal standard in a
state law cause of action is not sufficient to warrant federal
subject matter jurisdiction where there is no federal remedy for
a violation of a federal statute.”

Id. at 584-85.

The district

court concluded that “the fact that a federally created program,
Medicaid, serves as the initial source of the funds the
Commonwealth seeks to recover, does not, without more, confer
federal jurisdiction.”

Id. at 585.

31

The cause of action pursuant to the Hawaii False Claims Act
requires that Plaintiff demonstrate the Defendants caused a false
claim to be submitted pursuant to Hawaii state law, not pursuant
to any federal laws or regulations.
The Northern District of California considered the
involvement of Medicaid regulations as part of a State’s
complaint in Cnty of Sanata Clara v. Bristol Myers Squibb Co.,
2012 WL 4189126, at *6-7.

The district court rejected

Defendants’ assertion that Medicaid laws were necessary for
interpretation of the State’s pleadings for violations of
California’s False Advertising Law.

Id.

The district court

explained that Medicaid laws were not necessary to interpret the
state law cause of action.

Id.

The district court considered

the Defendants’ argument that the State was required to
demonstrate that it could have refused reimbursement for Plavix
pursuant to Medicaid laws.

The district court rejected the

argument, explaining that the Defendants attempted to look beyond
the scope of the well-pleaded Complaint.

Id. at *6.

Just as in Eli Lilly and Cnty of Santa Clara v. Bristol
Myers Squibb Co., Defendants have not established that the state
law cause of action requires the interpretation of a necessary
federal law.

The Complaint’s allegations that Defendants’

conduct was false will be interpreted based on Hawaii state law.
Defendants’ attempts to involve Medicaid laws go beyond the scope

32

of the well-pleaded Complaint.

Cnty of Sanata Clara v. Bristol

Myers Squibb Co., 2012 WL 4189126, at *6-7; Caldwell v. Bristol
Myers Squibb Co., 2012 WL 3862454, at *9-11.

The Complaint does

not demonstrate that federal Medicaid laws must be interpreted in
order to determine whether the Defendants’ actions violated the
relevant Hawaii state statutes.
Defendants’ attempt to rely on the Vioxx case is also not
persuasive.

The Vioxx litigation involved a defective drug, not

a drug that was claimed to have been marketed falsely and
unfairly.

As explained by the district court in Cnty of Santa

Clara v. Bristol Myers Squibb Co., the attorney general in the
Vioxx case pled a cause of action unique to Louisiana called
“redhibition” that is not at issue in this case.
at *6-7.

2012 WL 4189126

The attorney general in Vioxx sought to satisfy an

element of the redhibition cause of action by proving that he
would not have bought a prescription drug had he known of its
defect.

In re Vioxx Prods. Liability Litigation, MDL No. 1657,

2010 WL 2649513, *21 (E.D. La. June 29, 2010).

The district

court determined that necessary issues of federal Medicaid law
were involved because the attorney general was required to show
that he could have caused the state Medicaid program to stop
reimbursing prescriptions for it.

Id.

Here, unlike the Vioxx case, there is no cause of action for
redhibition.

The causes of action pled in the Complaint do not

33

require interpretation of Medicaid regulations.

Pennsylvania v.

Eli Lilly & Co., Inc., 511 F.Supp2d. at 582.
The Defendants’ reliance on the decision involving the
prescription drug Zyprexa in West Virginia v. Eli Lilly & Co.,
Inc., 476 F.Supp.2d 230, 233-34 (E.D. N.Y. Mar. 6, 2007) is also
unpersuasive.

The district court judge found that the pleadings

in the Zyprexa case made specific references to federal law and
sought relief for a violation of the “Fraud and Abuse in the
Medicaid Program Act.”

Id. at 231.

In an earlier Zyprexa case,

the district court explained federal question jurisdiction would
depend on the “specific allegations and subtle distinctions in
pleadings among pharmaceutical cases.”

In re: Zyprexa Prods.

Liability Litigation, 375 F.Supp.2d 170, 172 (E.D. N.Y. 2005).
The Complaint here does not contain pleadings that refer to
federal law or the federal Medicaid program.

Unlike the

allegations pled in the Zyprexa cases, the state law causes of
action pled here do no require a detailed interpretation of the
federal Medicaid regulatory scheme.
Plaintiff’s state law claims do not necessarily involve the
interpretation of a disputed, substantial federal question of
Medicaid law.

2.

Plaintiff’s Complaint Does Not Involve Necessary
and Substantial Questions of the Federal Food,
Drug, and Cosmetics Act

34

A substantial federal issue is “a serious federal interest
in claiming the advantages thought to be inherent in a federal
forum,” and one that justifies resorting “to the experience,
solicitude, and hope of uniformity that a federal forum offers.”
Grable, 545 U.S. at 312-13.
The mere presence of a federal issue in a state suit does
not necessarily give rise to federal question jurisdiction.
Empire Healthchoice Assurance, Inc., 547 U.S. at 700; Nevada v.
Bank of America Corp., 672 F.3d at 675-76.
The United States Supreme Court has found that the
application of the federal Food, Drug, and Cosmetic Act (“FDCA”)
is not a federal interest that requires the experience,
solicitude, or uniformity provided by federal courts.
Levine, 555 U.S. 555, 574-75 (2009).

Wyeth v.

The Supreme Court has found

that even a novel issue in the FDCA raised as part of a state
cause of action would not typically justify the exercise of
federal jurisdiction.

Merrell Dow Pharmeceuticals Inc. v.

Thompson, 478 U.S. 804, 808 (1986).
The United States Supreme Court has provided two main
reasons in support of its findings that the FDCA does not
typically involve substantial issues of federal law.

First, the

Supreme Court has emphasized that Congress did not create a
federal remedy for violations of the FDCA.
at 814.

Merrell Dow, 478 U.S.

Second, the Supreme Court has held that Congress

35

selectively declined to pre-empt state causes of action based on
FDCA standards.

Wyeth, 555 U.S. at 574-75.

The Supreme Court

has concluded “that the presence of a claimed violation of the
[FDCA] statute as an element of a state cause of action is
insufficiently ‘substantial’ to confer federal-question
jurisdiction.”

Merrell Dow, 478 U.S. at 814.

In Merrell, the plaintiffs alleged that the defendant had
misbranded its drug in violation of the FDCA and that this
violation created a rebuttable presumption of negligence in a
state tort action.

478 U.S. at 805-06.

The United States

Supreme Court held that reliance on the FDCA standard to prove an
element of a state cause of action did not confer federal
jurisdiction.

Id. at 817.

Congress’s determination that there

was no need for a private, federal remedy for FDCA violations
indicated that FDCA issues embedded within state claims are
insufficiently “substantial” to necessitate federal jurisdiction.
Id. at 814.
Districts courts have consistently relied on the United
States Supreme Court decisions in Wyeth and Merrell Dow to find
that state law causes of action for unfair trade practices
related to pharmaceutical drugs do not raise substantial
questions of FDCA regulations.

Oregon ex rel. Kroger v. Johnson

& Johnson, 832 F.Supp.2d 1250, 1256-60 (D. Or. 2011); Caldwell v.
Bristol Myers Squibb Co., 2012 WL 3862454, at *11-12;

36

Pennsylvania v. Eli Lilly & Co., Inc., 511 F.Supp.2d at 584-87.
Defendants’ argument related to the FDCA was recently
rejected by the district court overseeing the Multi-District
Litigation in In Re Plavix Prods. Liability Litigation in West
Virginia ex rel. McGraw v. Bristol Myers Squibb Co., 2014 WL
793569, *7-10 (D. N.J. Feb. 26, 2014).

The district court found

that the fact that Plaintiff’s claims may implicate the FDCA does
not support federal question jurisdiction.

Id.

The district

court stated that “this case represents the very type of action
the Supreme Court in Merrell Dow has cautioned against finding
federal question jurisdiction.”

Id.

The district court also held that the Defendants failed to
show that “this case would not disrupt the balance struck by
Congress between state and federal judicial responsibilities.”
Id.

The district court held that finding federal question

jurisdiction in this type of action would “open the federal
courthouse door to a tremendous number of cases, and could
therefore upset the congressionally intended division between
state and federal courts.”

Id.

Defendants’ position here is not distinguishable from the
decisions remanding proceedings in similar actions.

Cnty of

Santa Clara, 2012 WL 4189126, at *6-7; Oregon ex rel. Kroger, 832
F.Supp.2d at 1256-60; Caldwell, 2012 WL 3862454, at *11-12;
Pennsylvania, 511 F.Supp.2d at 584-87; West Virginia ex rel.

37

McGraw, 2014 WL 793569 at *10.
Plaintiff’s Complaint does not involve “substantial” federal
questions related to the FDCA.

A claimed violation of the FDCA

as a element of a state law cause of action is insufficient to
confer federal question jurisdiction.
814; Oregon, 832 F.Supp.2d at 1257.

Merrell Dow, 478 U.S. at
Finding federal question

jurisdiction in this instance may upset issues related to the
congressionally intended division between state and federal
courts.

The FDCA does not provide for a federal cause of action

and it does not pre-empt state causes of action.

Merrell Dow,

478 U.S. at 814; Wyeth, 555 U.S. at 574-75.
Defendants have failed to establish that necessary,
disputed, substantial federal questions require federal
jurisdiction over Plaintiff’s Complaint.

CONCLUSION

Plaintiff’s MOTION FOR REMAND (ECF No. 23) is GRANTED.
Defendants have filed a MOTION TO STAY (ECF No. 39)
requesting that the Court stay the REMAND to the Circuit Court of
the First Circuit, State of Hawaii.

Defendants seek the stay to

allow review of the decision to REMAND by appeal to the Ninth
Circuit Court of Appeals.
Plaintiff has until July 21, 2014, to respond to Defendants’
38

Motion to Stay (ECF No. 39).
Defendants have until July 28, 2014, to file a Reply.
Pursuant to Local Rule 7.2(e), the Court will decide
Defendants’ Motion to Stay (ECF No. 39) without a hearing.

IT IS SO ORDERED.
Dated: July 15, 2014, Honolulu, Hawaii.

/s/ Helen Gillmor
Helen Gillmor
United States District Judge

State of Hawaii, ex rel. David M. Louie, Attorney General, v.
Bristol-Myers Squibb Company; Sanofi-Aventis U.S. LLC; Sanofi US
Services Inc., formerly known as Sanofi-Aventis U.S. Inc.;
Sanofi-Synthelabo Inc.; Doe Defendants 1-100; Civ. No. 14-00180
HG-RLP; ORDER GRANTING PLAINTIFF’S MOTION FOR REMAND (ECF No.
23).
39