Bowen et al v. McKesson Corporation et al

Filing 64

MEMORANDUM DECISION and ORDER re Defendants' Motion to Transfer or Sever 58 , signed by District Judge Lawrence J. O'Neill on 4/24/16. Case Transferred to Eastern District of Kentucky. (Gonzalez, R)[Transferred from caed on 4/26/2016.]

Download PDF
1 2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 JERALD BOWEN, et al., 6 Plaintiffs, 7 8 v. 1:12-cv-1906-LJO-SKO MEMORANDUM DECISION AND ORDER RE DEFENDANTS’ MOTION TO TRANSFER OR SEVER (Doc. 58) MCKESSON CORPORATION, et al., 9 Defendants. 10 11 I. INTRODUCTION 12 Defendants Xanodyne Pharmaceuticals, Inc., Mylan, Inc., and Mylan Pharmaceuticals, Inc. 13 (collectively, “Defendants”), move under 28 U.S.C. § 1404(a) (“§ 1404(a)”) to transfer this case to the 14 United States District Court for the Eastern District of Kentucky.1 Doc. 58. The Court took the matter 15 under submission on the papers pursuant to Local Rule 230(g). See Doc. 63. For the following reasons, 16 the Court GRANTS Defendants’ motion and TRANSFERS this case to the Eastern District of Kentucky. 17 II. FACTUAL AND PROCEDURAL BACKGROUND 18 This is one of three cases in this District (and one of many more throughout the nation) 19 concerning allegations that prescription pain medications containing propoxyphene cause various 20 injuries. Plaintiffs originally filed this case in California state court and Defendants removed it to this 21 Court under the “mass action” provision of the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 22 1332(d). Doc. 1. The Ninth Circuit ultimately concluded removal on that ground was appropriate and 23 permissible. See Corber v. Xanodyne Pharm., Inc., 771 F.3d 1218 (9th Cir. 2014) (en banc). 24 25 1 In the alternative, Defendants move to sever from this case a number of Plaintiffs and claims. Because the Court grants Defendants’ motion to transfer, Defendants’ motion to sever is DENIED AS MOOT. 1 1 This case became part of the multi-district litigation (“MDL”) established in the Eastern District 2 of Kentucky for the numerous2 claims across the country concerning propoxyphene-related injuries. See 3 In re Darvocet, Darvon & Propoyxphene Prods. Liab. Litig, No. 2:11-cv-2226 (E.D. Ky.) (“In re 4 Darvocet”). Because the proceedings of the MDL “essentially are complete,” the Judicial Panel on 5 Multidistrict Litigation (“JPML”) recently remanded the case back to this Court. Doc. 38 at 1. 6 Defendants now argue this case should be transferred back to the Eastern District of Kentucky 7 because transfer will promote efficiency, serve the interests of justice, and will be more convenient for 8 the parties and witnesses than this Court. Doc. 58 at 2. Defendants point out that two California district 9 courts recently transferred virtually identical cases to the Eastern District of Kentucky. See id. at 9 10 (citing Romo v. McKesson Corp., No. 12-2036 PSG (Ex), 2015 WL 3622620, at *1 (C.D. Cal. June 9, 11 2015); Keene v. McKesson Corp., No. 12-cv-5924-JST, 2015 WL 9257949 (N.D. Cal. Dec. 17, 2015)). Plaintiffs dispute Defendants’ contention that this case should be transferred. See Doc. 61. 12 13 Plaintiffs also claim as a threshold matter that transfer is expressly prohibited under § 1332(d)(11)(C)(i) 14 of CAFA, id. at 9,which provides that any action removed under CAFA’s mass action provision “shall 15 not thereafter be transferred to any other court pursuant [28 U.S.C.] section 1407 [(“§ 1407”)], or the 16 rules promulgated thereunder, unless a majority of the plaintiffs in the action request transfer pursuant to 17 section 1407.” 18 III. STANDARD OF DECISION 19 The Court “has discretion to adjudicate motions for transfer [under § 1404(a)] according to an 20 individualized, case-by-case consideration of convenience and fairness.” Jones v. GNC Franchising, 21 Inc., 211 F.3d 495, 498 (9th Cir. 2000) (citation and quotations omitted). “For the convenience of parties 22 and witnesses, in the interest of justice, a district court may transfer any civil action to any other district 23 where it might have been brought.” § 1404(a). The Ninth Circuit has outlined ten additional factors 24 25 2 See, e.g., Romo, 2015 WL 3622620, at *1 (“This is one of twenty-six cases pending before this Court regarding personal injuries relating to . . . propoxyphene”); see also Keene v. McKesson Corp., No. 12-cv-5924-JST, 2015 WL 9257949, at *1 (N.D. Cal. Dec. 17, 2015) (noting seven related actions in the district concerning propoxyphene). 2 1 courts may consider in deciding a § 1404(a) transfer motion: 5 (1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff’s choice of forum, (4) the respective parties’ contacts with the forum, (5) the contacts relating to the plaintiff’s cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, (8) the ease of access to sources of proof . . . [(9)] the presence of a forum selection clause . . . [and (10)] the relevant public policy of the forum state, if any. 6 Id. at 498-99 (footnote omitted). The moving party bears the burden of establishing that a case should be 7 transferred. Id. at 498. 2 3 4 IV. ANALYSIS 8 9 Defendants stress that Romo, 2015 WL 3622620, and Keene, 2015 WL 9257949, are entirely on- 10 point and urge the Court to follow their lead. See Doc. 58 at 9. Notably, Plaintiffs do not argue 11 otherwise; their only argument concerning these cases is that Judge Gutierrez wrongly decided in Romo 12 that CAFA does not bar a § 1404(a) transfer. See Doc. 61 at 11. The Court has thoroughly reviewed 13 Romo, Keene, and the record in this case, and agrees with Defendants that Romo and Keene are entirely 14 applicable here. Further, the Court agrees with their reasoning, which rejected largely the same 15 arguments Plaintiffs put forth in their opposition to Defendants’ motion. The Court therefore follows the 16 analysis of Romo and Keene here. 17 18 A. CAFA Does Not Bar a § 1404(a) Transfer. As both Judges Tigar and Gutierrez noted, by its plain language, § 1332(d)(11)(C)(i) of CAFA 19 applies only to § 1407 transfers. See Romo, 2015 WL 3622620, at *2-3; Keene, 2015 WL 9257949, at 20 *2-3. Section 1407, in turn, applies only to MDL transfers ordered by the JPML. Simply put, 21 § 1332(d)(11)(C)(i) has no bearing on a district court’s ability to transfer a case under § 1404(a). 22 B. Transfer Under § 1404 Is Appropriate. 23 a. This Case Could Have Been Brought in the Eastern District of Kentucky. 24 Under § 1404(a), a case may be transferred only to a district court “where it might have been 25 brought.” Plaintiffs do not dispute that this case could have been brought in the Eastern District of 3 1 Kentucky because Defendant Xanodyne Pharmaceuticals, Inc., maintains its principal place of business 2 within that District. 3 b. The Interests of Justice Strongly Support Transfer. 4 The thrust of Defendants’ argument in support of transfer is that the Eastern District of Kentucky 5 (specifically, Judge Danny Reeves3) has become familiar with the propoxyphene litigation through its 6 presiding over the years-long proceedings in In re Darvocet and its ongoing involvement in other 7 numerous cases that are substantially similar (or virtually identical) to this case, such as Romo and 8 Keene. See Doc. 58 at 13. Plaintiffs do not and cannot dispute that Judge Reeves has been intimately involved with 9 10 propoxyphene litigation for years and, as a result, is undoubtedly far more familiar with the issues this 11 case presents than is this Court. Plaintiffs also do not and cannot dispute that Judge Reeves has 12 developed numerous case management procedures and protocols for these cases and has made numerous 13 pertinent rulings. As Judge Gutierrez observed, Judge Reeves “has become familiar with the issues at 14 stake in this litigation and would, consequently, resolve them more efficiently.” Romo, 2015 WL 15 3622620, at *4. This is particularly true given that the Eastern District of Kentucky has a per-judge 4 16 weighted caseload of 283, whereas this Court has a per-judge weighted caseload of 930. The Court agrees with Judge Tigar that “[c]ombining the various propoxyphene cases in a single 17 18 district would avoid inefficient duplication of efforts in judicial proceedings as well as the danger of 19 inconsistent results.” Keene, 2015 WL 9257949, at *4. “To permit a situation in which two cases 20 involving precisely the same issues are simultaneously pending in different District Courts leads to the 21 wastefulness of time, energy and money that [§] 1404(a) was designed to prevent.” Cont’l Grain Co. v. 22 23 24 25 3 Defendants correctly observe that, if transferred to the Eastern District of Kentucky, this case would be assigned to Judge Reeves pursuant to that court’s Local Rules. See Keene, 2015 WL 9257949, at *3 n.3. 4 See Administrative Office of the United States Courts, Table, Combined Civil and Criminal Federal Court Management Statistics (June 30, 2015), available at (last visited Apr. 19, 2016). 4 1 The FBL-585, 364 U.S. 19, 26 (1960). Accordingly, the Court finds that the interests of justice strongly 2 favor transfer. See Romo, 2015 WL 3622620, at *3 (“Of the over a dozen factors that courts consider 3 [when assessing whether the interests of justice favor transfer], only one could arguably weigh in favor 4 of the Central District of California—Plaintiffs’ choice of forum.”). 5 c. The Eastern District of Kentucky Is a More Convenient Forum. 6 The final requirement for transfer under § 1404(a) is that the transferee court is more convenient 7 for the witnesses and parties than the transferor court. Although Plaintiffs are correct that Defendants do 8 not provide much specific information or evidence concerning potential witnesses, there are at least 9 three reasons why the Eastern District of Kentucky is a more convenient forum than this Court. First, when transferring In re Darvocet to that forum, the JPML noted: 10 11 12 Because potential plaintiffs and putative class members will reside in every corner of the country and defendants are located in several states, the location of the currently filed cases is not a particularly significant factor in our decision. 13 In re Darvocet, 780 F. Supp. 2d 1379, 1381-82 (J.P.M.L. 2011). That the JPML established the Eastern 14 District of Kentucky was a convenient forum for the MDL strongly suggests it remains a convenient 15 forum for this case because, as Plaintiffs note, a “large number” of Plaintiffs are “located in the central 16 and eastern regions on the United States.” Doc. 61 at 18. Although the Eastern District of Kentucky may 17 not be ideal for all parties, it appears more convenient than California for many of them. The same can 18 be said of Defendants because only one of nineteen Defendants (McKesson Corporation) is California19 based. 20 Second, Judge Tigar found—and Plaintiffs do not now dispute—that “Xanodyne is the most 21 significant Defendant” in this litigation and “much of the testimony and evidence will likely be related 22 to it.” Keene, 2015 WL 9257949, at *5. Conversely, Plaintiffs do not dispute Defendants’ assertion that 23 McKesson Corporation—the only California defendant—is a “tangentially related” distributor and 24 relatively insignificant Defendant. Therefore, more “[r]elevant documents and witnesses likely are 25 5 1 located within the Eastern District of Kentucky at defendant Xanodyne’s Newport[, Kentucky] 2 headquarters” than in California. In re Darvocet, 780 F. Supp. 2d at 1382. Third, it appears that the substantially similar (or virtually identical) propoxyphene-related 3 4 claims of over 1,000 plaintiffs from across the country are currently pending in the Eastern District of 5 Kentucky.5 Plaintiffs do not “suggest any inconvenience that would be caused by transfer, or that could 6 offset eliminating the inconvenience of requiring key witnesses to travel to both Kentucky and 7 California rather than a single forum for all of the propoxyphene cases.” Keene, 2015 WL 9257949, at 8 *5; see also Puri v. Hearthside Food Solutions, LLC, No. 11-cv-8675-JFW (SSx), 2011 WL 6257182, at 9 *3 (C.D. Cal. 2011) (“[L]itigation of related claims in the same tribunal is strongly favored because it 10 facilitates efficient, economical and expeditious pre-trial proceedings and discovery and avoid[s] 11 duplicitous litigation and inconsistent results.”) (internal quotations omitted). The Court therefore finds 12 transferring this case to the Eastern District of Kentucky would be more convenient for the parties and 13 witnesses. 14 V. CONCLUSION AND ORDER 15 For the foregoing reasons, the Court GRANTS Defendants’ motion to transfer this case to the 16 Eastern District of Kentucky. Defendants’ motion to sever is DENIED AS MOOT. 17 IT IS SO ORDERED. 18 Dated: /s/ Lawrence J. O’Neill April 24, 2016 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 5 For instance, according to Defendants, Romo and Keene involve the claims of approximately 1,300 Plaintiffs. See Doc. 62 at 7 n.2. In addition, the Court is transferring to the Eastern District of Kentucky this case and two other propoxyphenerelated cases, which involve the claims of dozens of plaintiffs. 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?