Hood v. Bristol-Myers Squibb Company et al
MEMORANDUM OPINION re 62 Order on Motion to Remand to State Court. Signed by Senior Judge Glen H. Davidson on 6/27/13. (rel)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
JIM HOOD, ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI,
ex reL THE STATE OF MISSISSIPPI
CIVIL ACTION NO. I :12-CV-OOI79-GHD-DAS
BRISTOL-MYERS SQUIBB COMPANY;
SANOFI-AVENTIS U.S. L.L.C.; SANOFI-AVENTIS, U.S., INC.;
And SANOFI-SYNTHELABO, INC.
MEMORANDUM OPINION DENYING
PLAINTIFF'S MOTION TO REMAND CASE TO STATE COURT
Presently before the Court is Plaintiffs motion to remand  the case sub judice to state
court for lack of subject matter jurisdiction. Defendants oppose the motion to remand. The
parties have filed materials supporting their positions, and oral argument was held on April 4,
2013. Upon due consideration, the Court finds that the motion to remand should be denied,
because the case was properly removed on the bases of diversity jurisdiction and jurisdiction
under the Class Action Fairness Act ("CAF A").
A. Factual and Procedural Background
On June 29, 2012, Plaintiff, Attorney General of the State of Mississippi ("Plaintiff'),
filed suit in the Circuit Court of Chickasaw County, Mississippi against Defendants, BristolMyers Squibb Company; Sanofi-Aventis U.S., LLC; Sanofi-Aventis U.S., Inc.; and SanofiSynthelabo, Inc. (collectively, "Defendants"). In the original complaint, Plaintiff alleges that
Defendants unfairly, falsely, and deceptively labeled and promoted the prescription drug Plavix®
(c1opidogrel bisulfate) to consumers and healthcare providers. Specifically, Plaintiff asserts that
Defendants' marketing strategy was designed to replace aspirin with Plavix® as a treatment for
patients at risk of stroke and related ischemic events. Pl.'s Compl. 
1.1. Plaintiff alleges
that Defendants ignored, concealed, and minimized clinical data and other information showing
that Plavix® is only as effective as--or in some cases even less effective than-aspirin in
treating such patients. Id. Plaintiff further alleges that Defendants falsely marketed Plavix® as a
drug more effective than aspirin and other competitor products. Id.
1.2. Plaintiff avers that
Defendants have also falsely marketed Plavix® as a more effective and safe drug for uses for
which the drug had not been shown to be effective and safe. Id.
1.3. Plaintiff further avers that
Defendants failed to disclose that a significant percentage of the patient population is genetically
predisposed to have a substantially diminished response to Plavix® or no response at all, and that
Defendants knew that disclosure of such information would lead to a reduction in the number of
prescriptions written for Plavix® and thus a decline in Plavix®' s sales and revenue. Plaintiff
sues exclusively under the Mississippi Consumer Protection Act (the "MCPA") and seeks
several remedies, including (1) civil penalties, (2) disgorgement in equity, and (3) injunctive
On August 17, 2012, Defendants removed the suit to this Court on the claimed bases of
diversity jurisdiction, federal question jurisdiction, and/or jurisdiction under CAPA pursuant to
28 U.S.c. § 1332(d). On September 17,2012, Plaintiff filed a motion to remand  the action
to state court for lack of subject matter jurisdiction, as well as an amended complaint .
Defendants filed a response in opposition to the motion to remand. Plaintiff filed a reply in
support of its motion to remand.
Meanwhile, on October 15, 2012, Defendants notified this Court of their filing with the
United States Judicial Panel on Multidistrict Litigation (the "Panel") a renewed motion to
transfer the action to a single judge for coordinated or consolidated pretrial proceedings pursuant
to 28 U.S.C. § 1407. 1 Defendants had filed a prior motion to transfer with the Panel relating to
other P1avix® litigation; the Panel had denied that transfer motion on December 14, 2011.
Plaintiff filed an opposition to the renewed transfer motion with the Panel. Defendants filed a
motion to stay proceedings in this Court pending the Panel's transfer decision ; this Court
granted the requested stay in a memorandum opinion  and Order  dated January 2,2013.
Subsequently, the Panel entered a Transfer Order denying the request for transfer to the United
States District Court for the District of New Jersey. However, the Panel stated in the Order that
the Panel was in agreement with Defendants that the litigation had expanded dramatically since
the initial denial of the transfer request and denied without prejudice the transfer request, to await
rulings on the motions to remand pending in several transferor courts, including this Court.
On April 4, 2013, this Court held a hearing on the pending motion to remand. On June 7,
2013, the Panel entered a Conditional Transfer Order ("CTO") stating that the case sub judice,
along with several others, would be transferred to MDL, because the cases "involve questions of
fact that are common to the actions previously transferred" to the MDL court. While the CTO
was stayed the customary seven days from entry, Plaintiff timely filed a notice of opposition to
MDL transfer with the Clerk ofthe Panel. Due to the notice of opposition, the stay will continue
until further order of the Panel, during which time this Court's jurisdiction continues over the
pending motion for remand. With this factual and procedural background in mind, the Court
now turns to the merits of the motion to remand.
B. Standard ofReview
The removal statute provides in pertinent part:
Except as otherwise expressly provided by Act of Congress, any
civil action brought in a State court of which the district courts of
I The matter pending before the Panel is MDL Docket No. 2418, In Re Plavix® Marketing, Sales
Practices and Prods. Liab. Litig. (No. II).
the United States have original jurisdiction, may be removed by
the defendant or the defendants, to the district court of the United
States for the district and division embracing the place where such
action is pending.
28 U.S.C. § 1441(a). A case may be remanded upon a motion filed within thirty days after the
filing of the notice of removal on any defect except subject matter jurisdiction, which can be
raised at any time by any party or sua sponte by the court. See Wachovia Bank, NA. v. PICC
Prop. & Cas. Co., 328 F. App'x 946, 947 (5th Cir. 2009). "If at any time before final judgment
it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28
U.S.C. § 1447(c). Any "doubts regarding whether removal jurisdiction is proper should be
resolved against federal jurisdiction." Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir.
As stated above, the case sub judice was removed to this Court on the purported grounds
of (1) diversity jurisdiction, (2) federal question jurisdiction, and (3) jurisdiction under CAFA
pursuant to 28 U.S.C. § 1332(d). The Court will examine each purported ground for removal in
1. Diversity Jurisdiction
First, Defendants argue that the action is removable based on diversity jurisdiction. At
the outset, the Court addresses a threshold issue in the case: when considering whether the case
is removable based on diversity, should this Court look to the original complaint or the amended
complaint, which was filed the same day as the motion to remand? A plethora of case law
demonstrates that the Court should look to the complaint at the time the petition for removal was
filed. See, e.g., Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S. Ct. 347,348--49,83 LEd. 334
(1939) ("The second amended complaint should not have been considered in determining the
right to remove, which in a case like the present one [removal based on diverse defendant's
claim that controversy as to it was separable from claims against nondiverse defendants] was to
be determined according to the plaintiffs' pleading at the time of the petition for removal.")
(citations omitted); Richey v. Wal-Mart Stores, Inc., 390 F. App'x 375, 377 (5th Cir. 2010) (per
curiam) (quoting Tex. Beef Grp. v. Winfrey, 201 F.3d 680, 686 (5th Cir. 2000) ("When removal
is based on diversity of citizenship, diversity must exist at the time of removal."»; Caval/ini v.
State Farm Mut. Auto Ins. Co., 44 F.3d 256,264 (5th Cir. 1995) ("[A] complaint amended post-
removal cannot divest a federal court ofjurisdiction."). The Fifth Circuit explained in Cavallini:
The rationale for determining removal jurisdiction on the basis of
claims in the state court complaint as it exists at the time of
removal is obvious. Without such a rule, disposition of the issue
would never be final, but would instead have to be revisited every
time the plaintiff sought to amend the complaint to assert a new
cause of action against the nondiverse defendant, all at
considerable expense and delay to the parties and the state and
federal courts involved. Limiting the removal jurisdiction question
to the claims in the state court complaint avoids that unacceptable
result, and permits early resolution of which court has jurisdiction,
so that the parties and the court can proceed with, and
expeditiously conclude, the litigation.
44 F.3d at 264 (footnote omitted). Based on the foregoing, this Court will look to the whole of
Plaintiff s original complaint, which was the current complaint at the time the removal petition
was filed, to determine whether the case is removable based on diversity jurisdiction.
To satisfy their burden to establish federal diversity jurisdiction, Defendants must show
that (1) a dispute has arisen between citizens of different states, and (2) the sum or value in
controversy exceeds $75,000, exclusive of interest and costs. See 28 U.S.c. § 1332(a). The
parties do not dispute that the amount in controversy is satisfied by Plaintiff's allegations in the
original complaint, as Plaintiff seeks to recover civil penalties not to exceed $10,000 per
statutory violation, disgorgement under the doctrine of unjust enrichment in the amount of
"hundreds of millions of dollars," interest, attorney's fees, and costs. See PL's CompI. "5.1,
5.35, 9.1. The parties dispute whether the parties are completely diverse. Plaintiff argues that it
is bringing a parens patriae suit on behalf of the State of Mississippi under the MCPA, not a suit
on behalf of the individual users of Plavix® under the MCP A, and that because the State is not a
citizen for purposes of diversity jurisdiction, diversity is not a valid basis for removaL
Defendants maintain that complete diversity of citizenship exists between the parties, because
the real parties in interest to the suit are Mississippi citizens, who are all completely diverse from
the Defendants, who are all non-Mississippi citizens.
To detennine whether diversity exists, courts must examine the citizenship of the real
parties to the controversy, and not the citizenship of nominal or fonnal parties. Navarro Sav.
Ass'n v. Lee, 446 U.S. 458, 460-61,100 S. Ct. 1779,64 L. Ed. 2d 425 (1980). Importantly, and
for present purposes, "a State is not a 'citizen' for purposes of the diversity jurisdiction." Moor
v. Alameda County, 411 U.S. 693, 717, 93 S. Ct. 1785,36 L. Ed. 2d 596 (1973). Thus, "[a]s the
government is not a citizen of any state, it is not considered in the complete diversity calculus."
Hussain v. Boston Old Colony Ins. Co., 311 F.3d 626,635 n.46 (5th Cir. 1985). If the face of
Plaintiffs complaint as a whole demonstrates that the State is the sole party in interest, it follows
that diversity jurisdiction cannot exist as a basis for removaL See Mississippi v. AU Optronics
Corp., 701 F.3d 796, 800 (5th Cir. 2012); see also Nevada v. Bank ofAm. Corp., 672 F.3d 661,
670 (9th Cir. 2012); LG Display Co. v. Madigan, 665 F.3d 768, 774 (7th Cir. 2011). Real parties
in interest are those who "by substantive law, possess[ ] the right sought to be enforced, and not
necessarily the person who will ultimately benefit from the recovery." Richards v. Reed, 611
F.2d 545, 546 n.2 (5th Cir. 1980) (inset quotations omitted); CHARLES ALAN WRIGHT & MARY
KAy LANE, LAW OF FEDERAL COURTS 492 (6th ed. 2002).
Only suits brought by the attorney general involving a quasi-sovereign interest of the
State and vindicating the State's own status within the federal system are properly brought as
parens patriae suits.
"Two non-sovereign interests, which would not provide a state with
standing for a parens patriae action, are proprietary interests and private interests pursued by the
state, where the state is only acting as a nominal party." Louisiana ex reI. Caldwell v. Allstate
Ins. Co., 536 F.3d 418,425-26 (5th Cir. 2008) (citing Alfred L. Snapp & Son v. Puerto Rico, ex
reI. Barez, 458 U.S. 592, 601-02, 102 S. Ct. 3260, 73 L. Ed. 2d 995 (1982)). In Snapp, the
United States Supreme Court explained:
[A] State may, for a variety of reasons, attempt to pursue the
interests of a private party, and pursue those interests only for the
sake of the real party in interest. Interests of private parties are
obviously not in themselves sovereign interests, and they do not
become such simply by virtue of the State's aiding in their
achievement. In such situations, the State is no more than a
/d. at 602, 102 S. Ct. 3260. In Snapp, the Court identified some interests which would justify a
parens patriae suit on behalf ofthe State. For example, the Court stated that a State may bring a
parens patriae action in "exercise of sovereign power over individuals and entities within the
relevant jurisdiction-this involves the power to create and enforce a legal code, both civil and
criminal ...." Id. at 601, 102 S. Ct. 3260. A State may also bring a parens patriae action to
vindicate a "quasi-sovereign interest in the health and well-being-both physical and
economic-of its residents in general." /d. at 607, 102 S. Ct. 3260. "One helpful indication in
determining whether an alleged injury to the health and welfare of its citizens suffices to give the
State standing to sue as parens patriae is whether the injury is one that the State, if it could,
would likely attempt to address through its sovereign lawmaking powers." Id. at 607, 102 S. Ct.
Obviously, a State might make use of "private bills" in order to use
its legislative power to aid particular individuals. If the analogy
spoken of above is to this form of legislative action, then the State
remains merely a nominal party from the perspective of a federal
court; it has failed to articulate any general interest, apart from that
of the individual involved.
Id. at 607 n.14, 102 S. Ct. 3260. A suit in which the State is seeking only the remedy of
injunctive relief presents a compelling argument that the State is the only real party in interest in
a suit. See Caldwell, 536 F.3d at 430. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 519-20,
127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007) (state had special solicitude to bring parens patriae
action against EPA to regulate greenhouse gas emissions from motor vehicles causing damage to
its coastline and could endanger public health and welfare); Hawaii v. Standard Oil Co. of Ca.,
405 U.S. 251, 263-65, 92 S. Ct. 885,31 L. Ed. 2d 184 (1972) (Clayton Act did not authorize
state to sue for damages for an injury to its economy allegedly attributable to a violation of
antitrust laws); Caldwell, 536 F.3d at 429-30 (state attorney general's antitrust suit seeking
damages suffered by individual policyholders was not a parens patriae suit because the real
parties in interest were the policyholders); Sierra Club v. City ofSan Antonio, 115 F.3d 311, 315
(5th Cir. 1997), cert. denied, 522 U.S. 1089, 118 S. Ct. 879, 139 L. Ed. 2d 868 (1998) (state
allowed to intervene in case brought by environmental group against city and other governmental
and private entities, because state, as parens patriae, had interest in physical and economic
health and well-being of its citizens directly affected by changes in the water level draw-downs
In the case sub judice, Plaintiff's original complaint alleges that Defendants engaged in
unfair, false, and deceptive labeling and marketing ofPlavix®, as well as a cover-up of mounting
adverse efficacy of the drug and safety evidence, and that such conduct increased Plavix®'s sales
and market share and in the process "bilked" purchasers, insurers, public healthcare providers,
public entities, and government payors, including the State of Mississippi, out of hundreds of
millions of dollars-all in violation of the MCPA. Pl.'s Compl. [2J ~ 5.35. It is helpful to look
to the language of the MCP A to determine whether the State is the sole real party in interest in
The MCP A provides that the Attorney General may bring a suit in chancery or county
court to obtain injunctive relief in the name of the State against a defendant for "the use of such
method, act[,J or practice [as violates the MCPA]". MISS. CODE ANN. § 75-24-9. The MCPA
further provides that an individual consumer may also bring an action under the MCPA, but
"every private action must be maintained in the name of and for the sole use and benefit of the
individual person." MISS. CODE ANN. § 75-24-15(4). With respect to monetary recovery for
civil violations and penalties, the MCPA provides:
[1Jf the court finds from clear and convincing evidence, that a
person knowingly and willfully used any unfair or deceptive trade
practice, method or act prohibited by Section 75-24-5, the Attorney
General, upon petition to the court, may recover on behalf of the
state a civil penalty in a sum not to exceed Ten Thousand Dollars
($10,000.00) per violation. One-half (1/2) of said penalty shall be
payable to the Office of Consumer Protection to be deposited into
the Attorney General's special fund. All monies collected under
this section shall be used by the Attorney General for consumer
fraud education and investigative and enforcement operations of
the Office of Consumer Protection. The other one-half (1/2) shall
be payable to the General Fund of the State of Mississippi. The
Attorney General may also recover, in addition to any other relief
that may be provided in this section, investigative costs[,] and a
reasonable attorney's fee.
MISS. CODE ANN. § 75-24-19(1)(b). From the language of the MCPA, it appears that Plaintiff's
claims for injunctive relief and recovery of civil penalties, investigative costs, and a reasonable
attorney's fee are properly brought in a parens patriae suit by the Attorney General on behalf of
the State. However, Plaintiffs request for disgorgement in equity, coupled with the series of
different statements about the nature of the injury involved in the original complaint, lead the
Court to conclude that this suit is one brought by Plaintiff on behalf of the State, as well as the
individual Mississippi users or purchaser consumers ofPlavix®.
Several statements throughout the complaint refer to the injury as a generalized harm to
the State as a whole. See Pl.'s Compi. 
1.7 ("The claims asserted herein are brought solely
by the State and are wholly independent of any claims that individual users of Plavix® may have
against Defendants."); id.
("The Attorney General brings this action on the State's behalf ..
. pursuant to the positive statutory, common, and decisional law of the State, including ... his
parens patriae authority, which vests in him the right to [bring] all suits necessary for the
enforcement of the laws of the State, preservation of order, and protection of public rights."); id.
6.4 ("Defendants are directly and jointly and severally liable to the State for penalties for which
recovery is sought herein."); id.
8.2 ("[T]he State has suffered, and will continue to suffer,
immediate and irreparable injury, loss, and damage.").
However, numerous other statements in the complaint indicate that the injury complained
of was suffered by the user or purchaser consumer, as well as the State of Mississippi. See id.
1.6 ("Defendants' acts ... disseminated and/or communicated to consumers and/or healthcare
providers throughout Mississippi ...."); id.
5.22 ("At all relevant times, Defendants ...
purported to warn or . . . inform users throughout . . . Mississippi, regarding the benefits and
risks associated with [Plavix®]."); id.
5.32 ("Defendants ... continue to choose to put their
corporate profits ahead of patients' safety . . . . "); id.
5.35 ("In short, Defendants bilked
purchasers, including Mississippi patients, their insurers, public healthcare providers, public
entities, and government payors, including Plaintiff, out of hundreds of millions of dollars ...
5.39 ("Defendants failed to disclose to the scientific community and the general public
facts sufficient to arouse suspicion. . .. Defendants' ... scheme ... deprived Mississippi
patients, their insurers, public healthcare providers, public entities, and government payors,
including Plaintiff, of ... facts sufficient to put them on notice of potential claims."); id.
("Defendants disseminated false and misleading information to the public, including Mississippi
doctors and citizens, regarding the health risks associated with Plavix®."); id.
6.6 ("Those false
and misleading representations and omissions tended to mislead or deceive Mississippi doctors
and citizens, and ... directly or indirectly affect[ed] the people of the State."); id.
6.9 ("false or
misleading representation or material omission about the benefits and risks of Plavix®
disseminated or communicated to Mississippi doctors, citizens, or the State ... communicated to
the State or its doctors and citizens"); id.
7.2 ("causing Defendants to receive a financial
windfall from the State and from Mississippi consumers"); id.
Mississippi consumers conferred a benefit on Defendants."); id.
7.3 ("[T]he State and
7.5 ("benefits conferred upon
[Defendants] by the State and Mississippi consumers ... [T]he State and consumers within the
State should be made whole by application of the doctrine of unjust enrichment ...."). Also
pertinent is the allegation that the Attorney General brings the action on the State's behalf in his
capacity as the State's chief legal officer pursuant to the law of the State, "including but not
limited to his parens patriae authority." [d.
In viewing the original complaint as a whole, the Court finds that the variety of
allegations pled demonstrate that the real parties in interest include not only the State, but also
individual consumers residing in Mississippi. Both the State, as a purchaser of Plavix®, and the
individual citizens who purchased Plavix® within Mississippi, have rights sought to be enforced.
Further, although the State brings this suit pursuant to the MCPA, the MCP A does not
give the State sole authority to recover for particularized injuries suffered by consumers. The
MCPA allows suit by the Attorney General on behalf of the State of Mississippi, Miss. Code
Ann. § 75-24-9, but also allows suits on behalf of an individual consumer brought by the
individual consumer, id. § 75-24-15(4). "In other words, the statute does not authorize public
collection of private damages." AU Optronics Corp., 701 F.3d at 801. For these reasons, the
Court finds that the case sub judice is removable on the basis of diversity jurisdiction. Although
the case is removable based on diversity, for the sake of thoroughness, the Court will also
examine the other two purported bases of removal to federal court: federal question jurisdiction
and jurisdiction under CAFA.
2. Federal Question Jurisdiction
Defendants further argue that the action is removable based on federal question
District courts have subject matter jurisdiction over cases involving federal
questions-I.e., "all civil actions arising under the Constitution, laws, or treatises of the United
28 U.S.C. § 1331.
Under the "well-pleaded complaint rule," federal question
jurisdiction is present "when a federal question is presented on the face of the plaintiffs properly
pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425,96 L. Ed.
2d 318 (1987). "The rule makes the plaintiff the master of the claim; he or she may avoid federal
jurisdiction by exclusive reliance on state law. Id., 107 S. Ct. 2425.
A federal court also has federal question jurisdiction when the complaint presents "claims
recognized under state law that nonetheless turn on substantial questions of federal law" which
are "actually disputed and substantial" and "which a federal forum may entertain without
disturbing any congressionally approved balance of federal and state judicial responsibilities."
Grable & Sons Metal Prods., Inc. v. Darue Eng'g and Mig" 545 U.S. 308, 312, 314, 125 S. Ct.
2363, 162 L. Ed. 2d 257 (2005). The type of federal question jurisdiction created by Grable only
applies to a "special and small category" of cases. See Empire Healthchoice Assur. v. Mc Veigh,
547 U.S. 677, 699, 126 S. Ct. 2121, 165 L. Ed. 2d 131 (2006).
Plaintiff maintains that the case sub judice does not fall within the purview of federal
question jurisdiction, as it exclusively seeks remedies under MCPA which "are founded upon the
positive statutory, common, and decisional laws of the State." PI. 's Compi.  , 3.2. Plaintiff
further maintains that federal jurisdiction would disturb state judicial responsibilities and that this
case is best handled by the state court.
Defendants argue that the case sub judice presents a substantial and actually disputed
federal question pertaining to federal Medicaid law and the Federal Food, Drug, and Cosmetic
Act (the "FDCA") that must be answered to resolve the case.
Defendants first argue that
Plaintiffs MCPA claim necessarily implicates and will require the interpretation and application
of federal Medicaid law, because Plaintiff seeks recovery for monies that government payors
including the State-paid for Plavix® through the State's Medicaid program that Plaintiff alleges
government payors would not have incurred had they known the true and complete information
pertaining to Plavix®. See PL's Compi.  , 5.6 (Defendants' alleged "false and misleading
marketing messages primarily at healthcare profession[ aIls whose patients relied upon public
assistance programs such as Medicaid and Medicare"). Defendants maintain that Plaintiff is
essentially alleging that government entities paid more in Medicaid funds for Plavix® than they
should have paid, an allegation that turns on whether federal Medicaid laws would have
permitted the State and counties to refuse to pay for Plavix® prescriptions, and, if so, under what
circumstances. Defendants contend that Plaintiff can succeed on its claim only if it can prove
that federal law would have permitted the State's Medicaid program to refuse to pay for Plavix®.
Defendants further argue that Plaintiff s false advertising and labeling claim is also
implicitly premised on alleged violations of the FDCA, which will require a determination of
whether Defendants engaged in practices prohibited under the FDCA, an issue that presents a
Finally, Defendants argue that federal jurisdiction would not disturb state
judicial responsibilities, because there is a significant federal interest in the resolution of the
issues raised in Plaintiffs complaint, because they involve an interpretation and application of
the FDCA as well as Medicaid laws, and because the claims in the suit implicate primarily
federal funds, as most of Mississippi's Medicaid Program's funds are dispensed by the federal
In looking to Plaintiffs well-pleaded complaint, the Court finds that the primary issue
raised in the complaint is whether Plavix® was marketed through false, fraudulent, and
misleading practices. This issue does not hang on whether Defendants violated the FDCA and/or
FDA regulations in their promotion and marketing of Plavix@, but whether Defendants violated
Mississippi law in their promotion and marketing of Plavix®. This case does not present a
federal question cloaked as state-law claims; instead, the case presents clear state-law claims for
violations of the MCP A. Thus, in order to prevail in this litigation, Plaintiff will have to prove
the elements of its state-law claims, but will not necessarily have to prove that any violation of
federal laws occurred to prove the elements of its state-law claims. Therefore, Defendants'
arguments that federal law controls the issue of whether the State could have avoided paying for
Plavix® prescriptions that were the result of Defendants' marketing and promotion of Plavix®
are unavailing. Such arguments merely create a defense, and defenses do not form a basis for
federal question jurisdiction. See Elam v. Kansas City Southern Ry. Co., 635 F.3d 796,803 (5th
Cir. 2011) ("[t]hat federal law might provide a defense to a state law cause of action does not
create federal question jurisdiction"), citing Merrell Dow Pharms., Inc. v. Thompson, 478 U.S.
804,808, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986) ("[a] defense that raises a federal question is
inadequate to confer federal jurisdiction."). It is not necessary to resolve an issue of federal law
in order to resolve Plaintiff s claims.
Further, there is no private right of action in the Federal Medicaid Act, and there is no
private cause of action for FDCA violations. The fact that Congress provided no private right of
action in the Federal Medicaid Act or in the FDCA presents compelling evidence that a finding
of federal jurisdiction in this case would not be consistent with Congress's judgment regarding
the sound division of labor between the state and federal courts. Also, a finding of federal
jurisdiction over any state cause of action implicating provisions of the Federal Medicaid Act
and its accompanying regulations could "attract [ ] a horde of original filings and removal cases
raising other state claims with embedded federal issues." Grable, 545 U.S. at 318, 125 S. Ct.
2363. Under these circumstances, the fact that Congress provided no private right of action in
the Federal Medicaid Act presents compelling evidence that a finding of federal jurisdiction in
the instant case would not be "consistent with congressional judgment about the sound division
oflabor between state and federal courts." Id. at 313, 125 S. Ct. 2363.
In sum, Defendants have failed to meet their burden of establishing the existence of
federal question jurisdiction. Plaintiff's complaint alleges only state-law claims, and Defendants
have failed to demonstrate that the complaint alleges claims involving actually disputed and
substantial federal issues that a federal court may entertain without disturbing the
congressionally approved balance of federal and state judicial responsibilities. Accordingly,
federal question jurisdiction is not a basis for removal in this action. However, as stated above,
the Court finds that the case is removable on diversity grounds, and as stated below, the case is
also removable as a "mass action" under CAFA. Thus, despite the lack of a federal question, the
case is properly in federal court.
3. CAFA Jurisdiction
Lastly, Defendants argue that the action is removable under CAF A as a "class action"
under 28 U.S.C. § 1332(d)(I)(B) or a "mass action" under 28 U.S.C. § 1332(d)(l1)(B).
Defendants argue the case is removable under CAFA because (l) the Attorney General has
effectively brought this representative suit as a mass or class action on behalf of the real parties
in interest: more than 100 Mississippi citizens who purchased Plavix®, including Mississippi
patients, their insurers, public health care providers, public entities, and government payors; (2)
the claims involve common questions of law and fact that apply broadly to the case as a whole;
(3) minimal diversity as required by CAF A exists here, because all of the individual consumers
on whose behalf the action is brought are citizens of Mississippi, while Defendants are citizens
of Delaware, New York, and New Jersey; and (4) the amount of controversy requirement under
CAFA is met because the individual citizens' claims, when aggregated, seek recovery for
"hundreds of millions of dollars," an amount that well exceeds the CAFA requirement.
Defendants also argue that the "general public" exception does not apply in the case sub judice,
because the "general public" exception applies only when all of the claims in the action are
asserted on behalf of the general public (and not on behalf of individual claimants or members of
a purported class). In particular, Defendants maintain that Plaintiffs unjust enrichment claim in
the original complaint seeks recovery on behalf of a discrete group of claimants and entities who
paid for or were prescribed Plavix®--not on behalf of the public as a whole. !d. at 12.
Plaintiff maintains that CAFA does not support jurisdiction because the case is not a
"mass action" as defined by CAFA and/or that the "general public" exception under CAFA
applies. Plaintiff further maintains that the case is not a "class action" as defined by CAFA
because the statutory pleading requirements for a class action have not been, and cannot be,
satisfied, as Mississippi law does not authorize class actions, and MCPA actions may not be
brought as class actions under Mississippi law. See MISS. CODE ANN. § 75-24-15(4).
Removal to federal court is proper if the suit is a "class action" or "mass action" under
CAFA. 28 U.S.C. §§ 1453(b), 1332(d)(lI)(A). Under CAFA, "class action" is defined as "any
civil action filed under [R]ule 23 of the Federal Rules of Civil Procedure or 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)(I)(B). Plaintiff did not bring this suit under
Rule 23 of the Federal Rules of Civil Procedure or a rule of judicial procedure, and Mississippi
law precludes class actions, see Am. Bankers Ins. Co. of Fla. v. Booth, 830 So. 2d 1205, 1214
(Miss. 2002). Thus, the only question is whether the suit is brought under a state statute similar
to Rule 23. The suit was brought under the MCP A, which forbids class actions, see Miss. Code
Ann. § 75-24-15(4), and thus cannot be viewed as "similar" to Rule 23. Therefore, the Court
finds that the suit does not qualify as a "class action" under CAFA. The Court now turns to the
question of whether the suit qualifies as a "mass action" under CAFA.
CAFA defines a "mass action" as "any civil action . . . in which  monetary relief
claims of  100 or more persons  are proposed to be tried jointly on the ground that the
plaintiffs' claims involve common questions of law or fact" and  include an amount in
controversy exceeding $75,000. 28 U.S.C. § 1332(d)(1l)(B)(i). As stated above, the original
complaint sought monetary relief in the fonn of civil penalties, disgorgement due to unjust
enrichment, interest, attorney's fees, and costs. As also stated above, it is undisputed that the
relief sought satisfies the amount in controversy requirement. Thus, to detennine whether this
case is removable as a "mass action" under CAFA, the suit must present the claims of 100 or
more persons. The Court has already found that the State and citizens of Mississippi are the real
parties in interest to the suit and that the number of the citizens exceeds 100. But one thorny
issue remains-whether even if the suit otherwise fits the criteria of a "mass action" under
CAFA, it nonetheless is not a mass action because it falls within the "general public" exception
of CAFA, which provides:
[T]he term "mass action" shall not include any civil action in
which ... all of the claims in the action are asserted on behalf of
the general public (and not on behalf of individual claimants or
members of a purported class) pursuant to a State statute
specifically authorizing such action.
See 28 U.S.C. § 1332(d)(11)(B)(ii)(III). The Fifth Circuit recently stated in AU Optronics that
"[t ]he requirement that 'all of the claims' be asserted on behalf of the public is not met [where]
individual consumers, in addition to the State, are real parties in interest, so there is no way that
'all of the claims' are 'asserted on behalf of the general public.''' 701 F.3d at 802; but see id. at
807, 808 (Elrod, J., concurring in judgment) ("If we deny the applicability of the general public
exception when individual consumers are parties in interest, then, as a practical matter, we will
have eliminated the exception in this circuit. . .. Under this framework, it is difficult to imagine
a case that could be a mass action that also falls within the general public exception. .. In
essence, our precedent has created a situation in which a case cannot satisfy the criteria of both
the mass action provision and the general public exception. . .. [W]e should reconsider that
precedent and adopt a different approach for analyzing the removal of parens patriae suits under
CAFA."). The Court is mindful that on May 28,2013, the United States Supreme Court granted
certiorari to resolve a circuit split on the question of whether a state's parens patriae action is
removable as a "mass action" under CAFA when the state is the sole plaintiff and the claims
'arise under state law. See AU Optronics Corp., _
S. Ct. _ _, 2013 WL 655204. Because
this issue has not been resolved, this Court must follow current controlling precedent in the Fifth
Circuit. In so doing, the Court holds that the case sub judice is properly removed to federal court
pursuant to CAFA because it is a "mass action": the civil action involves the monetary claims of
100 or more Mississippi citizens; the claims involve common questions of law or fact; and the
amount in controversy is stated to be in the hundreds of millions of dollars. See 28 U.S.C. §
1332(d)(II)(B)(i); AU Optronics Corp., 701 F.3d at 801--D2; Caldwell, 546 F.3d at 430. The
"general public" exception does not apply, because the case is brought on behalf of the State and
the users or purchaser consumers ofPlavix®, not the general public. Thus, the case sub judice is
removable as a mass action under CAFA.
In sum, the Court finds that the Plaintiffs motion to remand  shall be DENIED. The
case is removable on the basis of diversity jurisdiction and as a "mass action" under CAFA.
An order in acc~ance with this opinion shall issue this day.
THIS, the ::),
day of June, 2013.
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