State of New Hampshire v. Purdue Pharma L.P. et al

Filing 1

NOTICE OF REMOVAL from Merrimack County Superior Court, NH, case number 217-2017-CV-00402 (filing fee $400, receipt number 0102-1561627) filed by The Purdue Frederick Company Inc., Purdue Pharma Inc., Purdue Pharma L.P.. Answer Follow Up on 10/6/2017. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). State Court Record Follow Up 9/29/2017. (Attachments: # 1 Exhibit A: State Court Docket and Redacted Complaint, # 2 Exhibit B: Notice of Conventional Filing, # 3 Exhibit C: Notice of Removal to Counsel, # 4 Exhibit D: Notice of Removal to State Court, # 5 Civil Cover Sheet) Complaint includes a claim under the NH Consumer Protection Act. A copy of the Complaint has been sent to the NH Attorney General via an automatic Notice of Electronic filing.(Deane, W.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
____________________________________________________
STATE OF NEW HAMPSHIRE,
Plaintiff,
v.

JURY TRIAL DEMANDED

PURDUE PHARMA L.P.; PURDUE PHARMA INC.; and
THE PURDUE FREDERICK COMPANY INC.,

Civil Action No. 1:17-cv-427

Defendants.
___________________________________________________
NOTICE OF REMOVAL
Defendants Purdue Pharma L.P., Purdue Pharma Inc., and The Purdue Frederick
Company Inc. (together “Purdue”), by their undersigned attorneys, hereby give notice of removal
of this action, pursuant to 28 U.S.C. §§ 1331, 1332, 1441, 1446, and 1453, from the Merrimack
County Superior Court of the State of New Hampshire to the United States District Court of New
Hampshire. As grounds for removal, Purdue states as follows:
PRELIMINARY STATEMENT
1.

The State of New Hampshire, through its Attorney General’s Office

(“Plaintiff”), filed this action on August 8, 2017, in Merrimack County Superior Court in the
State of New Hampshire, Case No. 217-2017-CV-00402. The Complaint alleges that Purdue
improperly and fraudulently promoted its opioid pain medications for treating chronic pain, a use
approved by the Food and Drug Administration (“FDA”). In addition to injunctive relief and
civil penalties, Plaintiff seeks restitution and compensatory damages on behalf of itself and New
Hampshire’s “cities, counties, and consumers” who have allegedly incurred costs “in paying for
the prescribing of opioids and their direct costs in abuse, addiction, … overdose, injury, and
death.” Compl. ¶ 293(d).
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2.

Plaintiff seeks restitution and damages under New Hampshire’s Consumer

Protection Act, RSA 358-A, for physical and economic injuries allegedly sustained by individual
consumers of opioid medications. See, e.g., id. ¶¶ 219, 221-22, 224, 232. It also seeks
restitution and damages under the Consumer Protection Act for New Hampshire’s “cities, towns,
and counties” for alleged “costs associated with administering first responder services and
support care for the families of individuals suffering drug overdoses.” Id. ¶ 233.1
3.

As set forth below, although Plaintiff has not labeled this matter as a class

action, this Court should look at the nature of the Complaint and determine whether it is a “class
action in all but name.” W. Va. ex rel. McGraw v. Comcast Corp., 705 F. Supp. 2d 441, 452
(E.D. Pa. 2010). The face of the Complaint establishes that Plaintiff brings this action not only
for injunctive relief as parens patriae but also to recover alleged damages on behalf of a class of
individual cities, towns, counties, and consumers who purportedly sustained damages as a result
of Purdue causing doctors to wrongfully prescribe opioid medications.
4.

Accordingly, this action is properly removable to federal court under the

Class Action Fairness Act (CAFA), 28 U.S.C. §§ 1332(d) and 1453(b), because the parties,
which include the putative class of New Hampshire cities, towns, counties, and consumers, are
diverse and the aggregate amount in controversy for the putative class exceeds $5 million.
FEDERAL DIVERSITY JURISDICTION EXISTS UNDER CAFA
5.

This Court has original jurisdiction over this case under CAFA. Under 28

U.S.C. § 1332(d), “district courts shall have original jurisdiction of any civil action in which the
matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs,
1

In addition to the Consumer Protection Act, the Complaint alleges violations of the State's
Medicaid Fraud and False Claims Act and also seeks recovery under several state law theories,
including public nuisance, unjust enrichment, and fraudulent or negligent misrepresentation.
Compl. ¶¶ 239-292.
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and is a class action in which … any member of a class of plaintiffs is a citizen of a State
different from any defendant.” There must be at least 100 class members. 28 U.S.C. §
1332(d)(5)(B).
A.

This Case Is a Putative Class Action
6.

Under 28 U.S.C. § 1453(b), a class action may be removed to federal

court. CAFA defines a “class action” as “any civil action filed under Rule 23 of the Federal
Rules of Civil Procedure or similar state statute or rule of judicial procedure authorizing an
action to be bought by 1 or more representative persons as a class action.” 28 U.S.C. §
1332(d)(1)(B).
7.

In enacting CAFA, Congress stated that the “overall intent” of Section

1332(d) is “[t]o strongly favor the exercise of federal diversity jurisdiction over class actions
with interstate ramifications.” S. Rep. No. 109-14, at 35 (2005), reprinted in 2005 U.S.C.C.A.N.
3. Consistent with that objective, “the definition of ‘class action’ is to be interpreted liberally.
Its application should not be confined solely to lawsuits that are labeled ‘class actions’ ….
Generally speaking, lawsuits that resemble a purported class action should be considered class
actions for the purpose of applying these provisions.” Id.
8.

Here, Plaintiff’s Complaint asserts claims and seeks restitution and

damages under the Consumer Protection Act on behalf of a class or classes of consumers of
opioids in New Hampshire who have allegedly paid for medications and the New Hampshire
cities, towns, and counties that have allegedly provided “first responder services and support care
for the families of individuals suffering drug overdoses.” Compl. ¶ 233; see also id. ¶¶ 232,
293(d). New Hampshire’s Consumer Protection Act expressly permits such a request for
restitution on behalf of a “class of persons,” including by the Attorney General. RSA 358-

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A:4(III)(a); id. at 358-A:10-a. The statutory requirements for a class action under RSA 358A:10-a are “similar” to those of Federal Rule 23. 28 U.S.C. § 1332(d)(1)(B).
B.

The Diversity and Numerosity Requirements Are Satisfied
9.

Because the restitution and compensatory relief the Complaint requests

inure principally to the benefit of a class or classes of consumers and municipalities, it is those
individuals, and not the State of New Hampshire, who are the real parties in interest. See Alfred
L. Snapp & Son v. Puerto Rico, ex rel Barez, 458 U.S. 592, 602 (1982) (“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 achievements.”); see also In re Avandia Mktg., Sales
Practices & Prod. Liab. Litig., 238 F. Supp. 3d 723, 730 (E.D. Pa. 2017) (county was real party
in interest in action by state seeking restitution and other damages on behalf of county under
consumer protection law because “relief sought would not inure to the benefit of the state
alone”).
10.

When the State is properly disregarded as a nominal party in favor of the

real parties in interest, CAFA’s diversity and numerosity requirements are satisfied.
11.

To determine whether minimal diversity exists, the citizenship of all class

members, both named and unnamed, is considered. 28 U.S.C. § 1332(d)(1)(D). For purposes of
diversity jurisdiction, a corporation is a citizen of both the state of incorporation and where it has
its principal place of business. 28 U.S.C. § 1332(c)(1). A partnership is a citizen of every state
in which its partners are citizens. See Americold Realty Tr. v. Conagra Foods, Inc., 136 S. Ct.
1012, 1015 (2016); American Fiber & Finishing, Inc. v Tyco Healthcare Group, LP, 362 F.3d
136, 138 (1st Cir. 2004).
12.

Purdue Pharma L.P. is a limited partnership organized under the laws of

Delaware, none of whose partners are citizens of New Hampshire. Purdue Pharma Inc. is a New
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York corporation with its principal place of business in Stamford, Connecticut. The Purdue
Frederick Company Inc. is a New York corporation with its principle place of business in
Stamford, Connecticut. Thus, none of the defendants is a citizen of New Hampshire for purposes
of diversity jurisdiction.
13.

Purdue is thus diverse from the real parties in interest – the New

Hampshire consumers of opioid prescriptions and the cities, towns, and counties in New
Hampshire that have allegedly incurred costs relating to first responder services and support care
related to opioid overdoses. Minimal diversity is satisfied pursuant to 28 U.S.C. § 1332(d)(2)(A).
14.

In addition, based on the allegations in the Complaint that millions of

doses of opioid medications were prescribed in New Hampshire and that there have been
hundreds of overdoses, it is clear that this putative class of consumers and municipalities
numbers more than 100 members. See, e.g., Compl. ¶¶ 11, 16, 170, 185.
C.

The Amount in Controversy Requirement Is Satisfied
15.

The remaining requirement for CAFA jurisdiction is that the amount in

controversy must exceed $5,000,000 in the aggregate for the class. 28 U.S.C. § 1332(d). “[A]
defendant’s notice of removal need include only a plausible allegation that the amount in
controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co., LLC v.
Owens, 135 S. Ct. 547, 554 (2014).
16.

The relief Plaintiff seeks includes “restitution and damages, including

enhanced compensatory damages, as appropriate, for the costs incurred by the State, cities,
counties, and consumers in paying for the prescribing of opioids and their direct cost in abuse,
addiction, . . . overdose, injury, and death.” Compl. ¶ 293(d). Plaintiff seeks such relief for the
period “[f]rom 2011 to the present,” id. ¶ 8, on behalf of the putative class of well over 100
consumers and municipalities described above. Given the nature of the claims and the alleged
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number of consumers, prescriptions, and incidents potentially at issue, the amount in controversy
exceeds $5 million.
17.

Accordingly, the amount-in-controversy requirement is satisfied.2
PROCEDURAL REQUIREMENTS FOR REMOVAL

18.

Purdue has satisfied or will satisfy all of the procedural requirements for

removal under 28 U.S.C. § 1446 and District of New Hampshire Local Rule 81.1.
19.

In accordance with 28 U.S.C. § 1446(a), this is the appropriate court for

removal because the state court in which the action was commenced, Merrimack County
Superior Court, is within the Court’s district and division. True and correct copies of all process,
pleadings, and orders served upon Purdue in this action, including the Complaint,3 are attached
as Removal Exhibit A.
20.

This Notice of Removal is signed on behalf of all defendants pursuant to

Fed. R. Civ. P. 11.
21.

In accordance with 28 U.S.C. § 1446(b), this Notice of Removal is being

timely filed within 30 days of the receipt of the Summons and Complaint on August 16, 2017.
See Return of Service (Removal Exhibit A).
22.

In accordance with 28 U.S.C. § 1446(d), Purdue is promptly notifying

Plaintiff in writing that this case has been removed to this Court pursuant to this Notice of
Removal. A true and correct copy of the Notice of Filing Notice of Removal that is being served
2

Purdue notes that the inquiry at this stage concerns only the amount of damages requested by
the Plaintiff. Purdue need not, and does not, concede that Plaintiff is entitled to recover any
damages. See Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 945 (8th Cir. 2012).
3
Plaintiff filed two versions of the Complaint with the Superior Court, a public version with
redactions and a non-redacted version under seal. A true and correct copy of the redacted version
of the Complaint is included as part of Removal Exhibit A, and a true and correct copy of the
non-redacted version is Removal Exhibit B. Pursuant to District of New Hampshire Local Rule
83.12, Purdue is conventionally filing Exhibit B together with a motion to seal at Level I.
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on Plaintiff is attached as Removal Exhibit C. Plaintiff is also being served with copies of this
Notice of Removal and all exhibits.
23.

Purdue is filing, contemporaneously with the filing of this Notice of

Removal, a Notice of Filing Notice of Removal, which attaches a copy of this Notice of
Removal, with the Clerk of the Merrimack County Superior Court. A true and correct copy of the
Notice of Filing Notice of Removal that will be filed with the Superior Court is attached as
Removal Exhibit D.
24.

In accordance with Local Rule 81.1(c), Purdue will contemporaneously

request a certified copy of the Merrimack County Superior Court record in Case No. 217-2017CV-00402, and Purdue will file that certified state court record with this Court within 14 days.
25.

Purdue reserves any and all rights to assert any and all defenses and/or

objections to the Complaint. Purdue further reserves the right to amend or supplement this
Notice of Removal.
26.

If any questions arise as to the propriety of the removal of this action,

Purdue requests the opportunity to present briefing, argument, and further evidence necessary to
support their position that this case is removable.
WHEREFORE, Purdue hereby removes this action from the Merrimack County
Superior Court to this Court.
Purdue Pharma L.P.;
Purdue Pharma Inc.; and
The Purdue Frederick Company Inc.
By and Through Their Attorneys,
NIXON PEABODY LLP
Dated: September 15, 2017

/s/ W. Daniel Deane
W. Daniel Deane, Esq.
-7-

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NH Bar No. 18700
David A. Vicinanzo, Esq.
NH Bar No. 9403
Nixon Peabody LLP
900 Elm Street, 14th Floor
Manchester, NH 03101
T: [phone]
[e-mail]
[e-mail]
CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of September, 2017, a copy of the foregoing Notice
of Removal, with exhibits, was served via e-mail and by United States first-class mail, postage
prepaid, to the following counsel of record:
James T. Boffetti, Esq.
Senior Assistant Attorney General
Chief, Consumer Protection
and Antitrust Bureau
Department of Justice
33 Capitol Street
Concord, NH 03301
[e-mail]

Linda J. Singer, Esq.
Motley Rice LLC
401 9th Street NW, Suite 1001
Washington, D.C. 20004
[e-mail]

/s/ W. Daniel Deane
W. Daniel Deane, Esq.

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