City of Parma v. Purdue Pharma L.P. et al

Filing 1

Notice of Removal from Cuyahoga County Common Pleas, case number CV 17 884281 with jury demand, Filing fee paid $ 400, receipt number 0647-8314264. Filer has indicated that case may be related to pending civil action 1:17-cv-1639. Filed by Endo Pharmaceuticals, Inc., Endo Health Solutions Inc. (Attachments: #1 Civil Cover Sheet, #2 Complaint, #3 State Court filings, #4 614 F.Supp.2d 868, #5 2017 WL 2843614, #6 2017 WL 3317300) (Coleman, Tera) Modified text on 9/7/2017 (S,SR).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

THE CITY OF PARMA,
Plaintiff,
v.
PURDUE PHARMA L.P.; PURDUE PHARMA
INC.; THE PURDUE FREDERICK COMPANY,
INC.; TEVA PHARMACEUTICALS USA, INC.;
CEPHALON, INC.; JOHNSON & JOHNSON;
JANSSEN PHARMACEUTICALS, INC.;
ORTHO-MCNEIL-JANSSEN
PHARMACEUTICALS, INC. N/K/A JANSSEN
PHARMACEUTICALS, INC.; JANSSEN
PHARMACEUTICA, INC. N/K/A JANSSEN
PHARMACEUTICALS, INC.; ENDO
PHARMACEUTICALS, INC.; ALLERGAN PLC
F/K/A ACTAVIS PLC; ACTAVIS, INC. F/K/A
WATSON PHARMACEUTICALS, INC.;
WATSON LABORATORIES, INC.; ACTAVIS
LLC; ACTAVIS PHARMA, INC. F/K/A WATSON
PHARMA, INC.; ENDO HEALTH SOLUTIONS
INC.; MCKESSON CORPORATION;
CARDINAL HEALTH, INC.;
AMERISOURCEBERGEN CORPORATION;
RUSSELL PORTENOY; PERRY FINE;
SCOTT FISHMAN; and LYNN WEBSTER,
Defendants.

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Case No. 1:17-cv-1872
Action Filed: August 9, 2017
Action Served: August 15, 2017

DEFENDANTS ENDO HEALTH SOLUTIONS INC. AND
ENDO PHARMACEUTICALS INC.’S NOTICE OF REMOVAL
Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, defendants Endo Health Solutions Inc. and
Endo Pharmaceuticals Inc. (collectively, “Endo”) hereby give notice of removal of this action,
captioned City of Parma v. Purdue Pharma L.P. et al., bearing civil action number CV 17 884281,
from the Court of Common Pleas for Cuyahoga County, Ohio, to the United States District Court

for the Northern District of Ohio. Pursuant to 28 U.S.C. § 1446(a), Endo provides the following
statement of the grounds for removal:
BACKGROUND
1.

On August 9, 2017, Plaintiff, the City of Parma, filed a Complaint (attached hereto,

with process papers served upon Endo, as Exhibit 1) in the Court of Common Pleas for Cuyahoga
County, Ohio, against the following defendants:
a.

“Manufacturer Defendants” — Endo Pharmaceuticals Inc.; Endo Health

Solutions Inc.; Purdue Pharma L.P.; Purdue Pharma Inc.; The Purdue Frederick Company, Inc.;
Teva Pharmaceuticals USA, Inc.; Cephalon, Inc.; Johnson & Johnson; Janssen Pharmaceuticals,
Inc.; Ortho-McNeil-Janssen Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc.; Janssen
Pharmaceutica, Inc. n/k/a Janssen Pharmaceuticals, Inc.; Allergan plc f/k/a Actavis plc; Actavis,
Inc. f/k/a Watson Pharmaceuticals, Inc.; Watson Laboratories, Inc.; Actavis LLC; and Actavis
Pharma, Inc. f/k/a Watson Pharma, Inc.
b.

“Physician Defendants” — Russell Portenoy; Perry Fine; Scott Fishman;

and Lynn Webster.
c.

“Distributor Defendants” — McKesson Corporation; Cardinal Health, Inc.

(“Cardinal”); and AmerisourceBergen Corporation.
2.

The Complaint contains allegations relating to conduct by the Manufacturer and

Physician Defendants, on the one hand, and separate alleged unlawful conduct by the Distributor
Defendants, on the other.
3.

The thrust of the Complaint is that the Manufacturer and Physician Defendants

engaged in a campaign of misrepresentations about the risks of FDA-approved opioid
medications. (Compl. ¶¶ 1-51.) Plaintiff alleges that, as part of this campaign, the Manufacturer

2

Defendants paid physicians and others to promote the Manufacturer Defendants’ opioid products.
(Id. ¶ 13.) Plaintiff further alleges that the Physician Defendants participated in those promotional
activities. (See, e.g., id. ¶¶ 124-127, 226-232, 414-415.) Plaintiff asserts that the Manufacturer
and Physician Defendants’ alleged conduct has caused Plaintiff to incur “health care costs,
criminal justice and victimization costs, social costs, and lost productivity costs.” (Id. ¶ 51.) All
of the Manufacturer and Physician Defendants are citizens of states other than Ohio.
4.

Unlike the allegations against the Manufacturer and Physician Defendants, none of

Plaintiff’s allegations against the Distributor Defendants relates to purported misrepresentations
about opioid medications. Instead, Plaintiff alleges that the Distributor Defendants “failed in
their duty to take any action to prevent or reduce the distribution of [opioids]” or to notice and
report “suspicious or alarming orders of opioid pharmaceuticals to the proper authorities and
governing bodies,” as required by “Ohio State Board of Pharmacy rules, codes and regulations.”
(Id. ¶¶ 96, 100, 121.) The Complaint further alleges that the Distributor Defendants failed to
“prevent the flow of prescription opioids . . . into the City of Parma.” (Id. ¶ 111.) One
Distributor Defendant, Cardinal, is an Ohio citizen. The other Distributor Defendants are citizens
of states other than Ohio.
5.

The Complaint asserts five causes of action against “all Defendants” (although

virtually all of the alleged conduct underlying all of those claims involves only the Manufacturer
and Physician Defendants): (1) unfair consumer sales practices under chapter 1345 of the Ohio
revised code; (2) deceptive trade practices under chapter 4165 of the Ohio revised code; (3)
nuisance and product liability; (4) fraud; and (5) unjust enrichment. (Id. ¶¶ 699-736.) In
addition, the Complaint asserts a negligence claim solely against the Distributor Defendants. (Id.
¶¶ 737-751.)

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6.

Counsel for Endo accepted service of the Complaint on August 15, 2017.

Pursuant to 28 U.S.C. § 1446(a), a copy of all process, pleadings, and orders served on Endo is
attached hereto as Exhibit 1 (Complaint and service papers) and Exhibit 2 (orders).
VENUE AND JURISDICTION
7.

Venue is proper in this Court pursuant to 28 U.S.C. §§ 115, 1391, 1441(a), and

1446(a) because the Court of Common Pleas for Cuyahoga County, Ohio, where the Complaint
was filed, is a state court within the Northern District of Ohio.
8.

This Court has subject matter jurisdiction under 28 U.S.C. § 1332(a) because

(1) there is complete diversity of citizenship between Plaintiff and all properly joined defendants;
(2) the amount in controversy exceeds $75,000, exclusive of interests and costs; and (3) all other
requirements for removal have been satisfied.
I.

THERE IS COMPLETE DIVERSITY OF CITIZENSHIP BETWEEN PLAINTIFF
AND ALL PROPERLY JOINED DEFENDANTS
9.

There is complete diversity of citizenship here because Plaintiff is an Ohio citizen

and all of the Manufacturer Defendants and Physician Defendants are citizens of states other than
Ohio, see Part I.A infra, and the citizenship of the Distributor Defendants (one of which is
non-diverse) is irrelevant for purposes of determining diversity jurisdiction because they were
improperly joined, see Part I.B infra. This is because the Distributor Defendants are dispensable
parties subject to severance under the Federal Rules of Civil Procedure and are also fraudulently
misjoined.1

1

While only one of the Distributor Defendants (Cardinal) is non-diverse, the Court should sever
all of the Distributor Defendants because of the common factual allegations underlying the claims
against those defendants.

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A.

Plaintiff Is Diverse from the Manufacturer and Physician Defendants
1. Plaintiff Is a Citizen of Ohio

10.

The City of Parma is an Ohio citizen for purposes of diversity jurisdiction. See

Moor v. Alameda Cty., 411 U.S. 693, 717 (1973) (“[A] political subdivision of a State, unless it is
simply ‘the arm or alter ego of the State,’ is a citizen of the State for diversity purposes.”) (citation
omitted); Saginaw Hous. Comm’n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009) (city and
school district are citizens of the state in which they are situated); Herold v. ASII, Inc., No.
1:11-CV-1690, 2012 WL 243303, at *1 (N.D. Ohio Jan. 23, 2012) (City of Cleveland is a citizen
of Ohio).
2. None of the Manufacturer Defendants or Physician Defendants Are Citizens
of Ohio
11.

For purposes of diversity jurisdiction, a corporation is “a citizen of every State and

foreign state by which it has been incorporated and of the State or foreign state 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); Hooper v. Wolfe, 396 F.3d 744, 748 (6th Cir. 2005).
12.

Applying these principles, none of the Manufacturer Defendants or Physician

Defendants is a citizen of Ohio.
13.

Defendant Endo Health Solutions Inc. is a corporation organized under the laws of

Delaware with its principal place of business in Malvern, Pennsylvania. (Compl. ¶ 67.)
14.

Defendant Endo Pharmaceuticals Inc. is a corporation organized under the laws of

Delaware with its principal place of business in Malvern, Pennsylvania. (Id.)
15.

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

Delaware, none of whose partners are residents of Ohio. (See id. ¶ 56.)

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16.

Defendant Purdue Pharma Inc. is a corporation organized under the laws of

Delaware with its principal place of business in Stamford, Connecticut. (Id.)
17.

Defendant The Purdue Frederick Company, Inc. is a corporation organized under

the laws of Delaware with its principal place of business in Stamford, Connecticut. (Id.)
18.

Defendant Teva Pharmaceuticals USA, Inc. is a corporation organized under the

laws of Delaware with its principal place of business in North Wales, Pennsylvania. (Id. ¶ 56.)
19.

Defendant Cephalon, Inc. is a corporation organized under the laws of Delaware

with its principal place of business in Frazer, Pennsylvania. (Id. ¶ 57.)
20.

Defendant Johnson & Johnson is a corporation organized under the laws of New

Jersey with its principal place of business in New Brunswick, New Jersey. (Id. ¶ 63.)
21.

Defendant Janssen Pharmaceuticals, Inc. is a corporation organized under the laws

of Pennsylvania with its principal place of business in Titusville, New Jersey. (Id.)
22.

Defendant Ortho-McNeil-Janssen Pharmaceuticals, Inc. is a corporation organized

under the laws of Pennsylvania with its principal place of business in Titusville, New Jersey. (Id.)
23.

Defendant Janssen Pharmaceutica, Inc. is a corporation organized under the laws of

Pennsylvania with its principal place of business in Titusville, New Jersey. (Id.)
24.

Defendant Allergan plc is a public limited company incorporated in Ireland with its

principal place of business in Dublin, Ireland. (Id. ¶ 70.)
25.

Defendant Actavis, Inc. f/k/a Watson Pharmaceuticals, Inc. is now known as

Allergan Finance LLC, a Nevada limited liability company with its principal place of business in
Parsippany, New Jersey. (See id.)
26.

Defendant Actavis LLC is a Delaware limited liability company with its principal

place of business in Parsippany, New Jersey. (Id.) Actavis LLC’s sole member is Actavis US

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Holdco LLC, a limited liability company organized under the laws of Delaware. Actavis US
Holdco LLC’s sole member is Watson Laboratories, Inc., a Nevada corporation with its principal
place of business in Parsippany, New Jersey. (See id.)
27.

Defendant Watson Laboratories, Inc. is a Nevada corporation with its principal

place of business in Parsippany, New Jersey. (See id.)
28.

Defendant Actavis Pharma, Inc., f/k/a Watson Pharma, Inc., is a Delaware

corporation with its principal place of business in Parsippany, New Jersey. (Id.)
29.

Defendant Dr. Russell Portenoy is a citizen of New York. (Id. ¶ 124.)

30.

Defendant Dr. Perry Fine is a citizen of Utah. (Id. ¶ 125.)

31.

Defendant Dr. Scott Fishman is a citizen of California. (Id. ¶ 126.)

32.

Defendant Dr. Lynn Webster is a citizen of Utah. (Id. ¶ 127.)

33.

Accordingly, all of the Manufacturer Defendants and Physician Defendants are

citizens of a state or foreign state other than Ohio.
B.

The Citizenship of the Distributor Defendants Should Be Ignored
1.

34.

The Distributor Defendants Are Dispensable Parties Subject to
Severance

Even where the face of a complaint shows a lack of complete diversity, removal

based on diversity jurisdiction is nonetheless proper if the claims against the non-diverse
defendants are severable under Federal Rules of Civil Procedure 19 and 21. Under those rules,
parties are severable if they are either unnecessary or dispensable.
35.

This Court’s decision in Joseph v. Baxter International, Inc., 614 F. Supp. 2d 868

(N.D. Ohio 2009) (attached hereto as Exhibit 3), is instructive. There, the plaintiffs, citizens of
Louisiana, brought a products liability action against Baxter, the manufacturer of the drug Heparin
and a citizen of Delaware and Illinois. Id. at 870. Before the case was removed, the plaintiffs

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amended their complaint to add as defendants various healthcare provider companies, which were
citizens of Louisiana and therefore non-diverse, alleging that they engaged in “negligent acts and
omissions in the administration of Heparin.”

Id. at 871.

Despite the addition of these

non-diverse healthcare provider defendants, the district court denied remand.
36.

Following Sixth Circuit precedent, the court explained that “it is appropriate to

drop a nondiverse and dispensable party from litigation in order to achieve diversity.” Id. at 872
(quoting Soberay Mach. & Equip. Co. v. MRF Ltd., 181 F.3d 759, 763 (6th Cir. 1999)). As the
court explained, Rule 21 “permits a district court to retain diversity jurisdiction over a case by
dropping a nondiverse party if that party’s presence in the action is not required under Federal Rule
of Civil Procedure 19.” Id. (quoting Safeco Ins. Co. v. City of White House, 36 F.3d 540, 545 (6th
Cir. 1994)); see also id. (“[U]nder Rule 21 of the Federal Rules of Civil Procedure, [courts] can
retain jurisdiction by severing claims against nondiverse dispensable defendants.”). Applying
these principles, the Baxter court concluded that the healthcare-provider defendants were
dispensable parties subject to severance and thus declined to remand the entire case. Id. at
872-74. The court reasoned that the healthcare-provider defendants were “not necessary parties
as the resolution of a claim against them would not necessarily resolve the [plaintiffs’] claim
against Baxter”; the medical malpractice claims against the healthcare providers “differ from the
[plaintiffs’] products liability claim” against the manufacturer. Id. at 872. And, the court
explained, the healthcare-provider defendants were dispensable because the plaintiffs “retain an
adequate remedy against the Healthcare Defendants as they can proceed with their claims in state
court.” Id. at 873. Given the separate questions raised by plaintiffs’ medical malpractice claims
against the healthcare providers, the court found that it could “sever them from the claims against

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[the manufacturer], and in doing so, perfect diversity jurisdiction over [the manufacturer].” Id. at
874.
37.

The Baxter court cited numerous other decisions that followed the same approach

to retain diversity jurisdiction over diverse defendants after a motion to remand. See id. at 873-74
(citing Phillips v. Knoll Pharm. Co., No. 03-8044 (N.D. Ohio Sept. 4, 2003); Williams v. Knoll
Pharm. Co., No. 03-8030 (N.D. Ohio July 11, 2003); Lucas v. Springhill Hosps., Inc., No.
1:09HC60016, 2009 WL 1652155, at *2 (N.D. Ohio June 11, 2009); Jolly v. Baxter Healthcare
Corp., No. 9:09-cv-00038 (E.D. Tex. Apr. 16, 2009)).
38.

The same outcome is warranted here because the Distributor Defendants are both

unnecessary and dispensable.

As no more than alleged joint tortfeasors, the Distributor

Defendants are unnecessary parties as a matter of settled law. Boggs v. Landmark 4 LLC, No.
1:12 CV 614, 2012 WL 3485288, at *3 (N.D. Ohio Aug. 13, 2012) (“[T]he Supreme Court has
held that, as a matter of law, joint tortfeasors are not necessary parties under Rule 19.” (citing
Temple v. Synthes Corp., 498 U.S. 5, 7-8 (1990)).
39.

Moreover, just like the claims against the manufacturer and the non-diverse

healthcare provider defendants in Baxter, Plaintiff’s claims and factual allegations against the
Manufacturer and Physician Defendants are sufficiently distinct from those against the Distributor
Defendants to merit severance. The claims against the Manufacturer and Physician Defendants
involve alleged misrepresentations regarding the risks of opioid medications. (Compl. ¶¶ 6-18.)
By contrast, Plaintiff’s claims against the Distributor Defendants focus exclusively on allegations
that the Distributor Defendants negligently distributed opioid medications. (Id. ¶¶ 89-123.)
Severance is thus particularly appropriate because “the claims ‘involve different legal standards
and different factual allegations.’” Kelly v. Aultman Physician Ctr., No. 5:13CV0994, 2013 WL

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2358583, at *3 (N.D. Ohio May 29, 2013) (citing DeGidio v. Centocor, Inc., No. 3:09CV721,
2009 WL 1867676, at *2 (N.D. Ohio July 8, 2009)).
40.

Beyond Rule 19, the claims against the Distributor Defendants are also misjoined

because they do not “aris[e] out of the same transaction, occurrence, or series of transactions or
occurrences” as the claims against the Manufacturer and Physician Defendants. Fed. R. Civ. P.
20(a)(1)(A). In these circumstances, these two sets of claims cannot properly be joined together.
41.

Aramouni v. Cook Medical, No. 1:15 CV 1116, 2015 WL 5661040 (N.D. Ohio

Sept. 24, 2015), is readily distinguishable. There, the court found severance unnecessary in part
because all claims arose from “the same basic operative facts” and severance would not promote
“judicial and economic efficiency” absent the ability to consolidate with other federal lawsuits.
Id. at *3. This case is entirely different. As described above, Plaintiff’s claims against the
Distributor Defendants involve different operative facts, and severance could promote efficiency
here, given that there is already one other similar suit pending in this District and another pending
in the Southern District of Ohio.

See City of Lorain v. Purdue Pharma L.P. et al., No.

1:17-cv-01639-DAP (N.D. Ohio) (motion to remand pending); City of Dayton v. Purdue Pharma
L.P. et al., No. 3:17-cv-00229-TMR (S.D. Ohio) (same).
42.

That Plaintiff asserts some causes of action against “all Defendants” changes

nothing. Because the factual basis for Plaintiff’s claims against the Manufacturer and Physician
Defendants (alleged misrepresentations), on the one hand, is separate and distinct from the factual
basis giving rise to Plaintiff’s claims against the Distributor Defendants (alleged failure to prevent
or reduce the distribution of opioid products or to report suspicious orders), severance is
appropriate. See Nelson v. Aim Advisors, Inc., No. 01-CV-0282-MJR, 2002 WL 442189, at *3
(S.D. Ill. Mar. 8, 2002) (“Although Plaintiffs’ claims against all Defendants are pled under the

10

same legal theory, it is only in this abstract sense that Plaintiffs’ claims share anything in common
. . . [and] does not mean that there are common issues of law and fact sufficient to satisfy Rule
20(a).”); Smith v. Hendricks, 140 F. Supp. 3d 66, 75-76 (D.D.C. 2015) (severing non-diverse
healthcare-provider defendants even though the plaintiff asserted some of the same causes of
action against both those defendants and the diverse manufacturer defendant because the “factual
basis” for the claims against the manufacturer and the healthcare providers were distinct and arose
out of different occurrences). And, as in Baxter, if Plaintiff truly wants to pursue claims against
the Distributor Defendants, Plaintiff has an “adequate remedy . . . in state court.” 614 F. Supp. 2d
at 872.
2.
43.

The Distributor Defendants Are Also Fraudulently Misjoined

The citizenship of the Distributor Defendants alternatively should be ignored

because the claims against them are fraudulently misjoined in this action. “Fraudulent misjoinder
occurs when a plaintiff attempts to defeat removal by misjoining the unrelated claims of
non-diverse party plaintiffs against a defendant, or . . . by misjoining the unrelated claims of a
plaintiff against non-diverse party defendants.” Baxter, 614 F. Supp. 2d at 874 (quoting Tapscott
v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), abrogated on another ground in
Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000)). As explained above, Plaintiff’s
claims against the Manufacturer and Physician Defendants are separate and distinct from
Plaintiff’s claims against the Distributor Defendants, including Cardinal. There is no plausible
basis for their inclusion in this lawsuit other than to defeat diversity.
44.

Indeed, in opioid-related cases like this one, federal district courts recently relied

on the fraudulent misjoinder doctrine to ignore the citizenship of non-diverse defendants and deny
remand based on diversity jurisdiction. See Cty. Comm’n of McDowell Cty. v. McKesson Corp.,

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No. 1:17-00946, 2017 WL 2843614, at *5 (S.D. W. Va. July 3, 2017) (attached hereto as Exhibit
4); City of Huntington v. AmerisourceBergen Drug Corp., No. 3:17-01362, 2017 WL 3317300, at
*4-5 (S.D. W. Va. Aug. 3, 2017) (attached hereto as Exhibit 5). In McKesson Corp., the plaintiff
filed suit in state court against diverse distributors of opioid products for allegedly “flood[ing]
McDowell County with opioids well beyond what was necessary to address pain and other
[legitimate] reasons,” and also against a non-diverse doctor for allegedly “provid[ing] written
opioid prescriptions for patients, knowing that the drugs were likely to be abused, diverted or
misused.” 2017 WL 2843614, at *1. The court found that these claims were fraudulently
misjoined and accordingly denied remand because “plaintiff’s claims against the [distributors] and
the claims against [the doctor]” lacked “common questions of law or fact” and were “separate and
distinct.” Id. at *5. In AmerisourceBergen Drug Corporation, the court reached the same
conclusion for substantially the same reasons. 2017 WL 3317300, at *5 (claims against diverse
and non-diverse defendants were “separate and distinct”).
45.

To be sure, as the court in Baxter noted, the Sixth Circuit has not yet adopted the

fraudulent misjoinder doctrine, and certain judges in the Northern District of Ohio have declined to
apply the doctrine. Baxter, 614 F. Supp. 2d at 874; Geffen v. Gen. Elec. Co., 575 F. Supp. 2d 865,
871 (N.D. Ohio 2008); Rodriguez v. Tyco Healthcare Grp., LP, No. 1:08 GD 50327, 2008 WL
4683294, at *2 (N.D. Ohio Oct. 21, 2008).
46.

Nevertheless, at least one other court within the Sixth Circuit has applied the

doctrine. Asher v. Minn. Mining & Mfg. Co., No. 04-CV-522, 2005 WL 1593941, at *7 (E.D. Ky.
June 30, 2005) (adopting fraudulent misjoinder doctrine and articulating a standard that requires
no “reasonable basis for finding the Plaintiff’s claims were properly joined”). Even if the Court

12

finds that the Distributor Defendants are not dispensable parties subject to severance, it should find
the claims against them misjoined under the procedural misjoinder doctrine.
47.

In sum, because Plaintiff is an Ohio citizen, and because none of the properly

joined defendants are Ohio citizens, there is complete diversity of citizenship. See 28 U.S.C.
§ 1332(a).
II.

THE AMOUNT IN CONTROVERSY EXCEEDS $75,000
48.

“[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). “[W]hen a defendant seeks federal-court
adjudication, the defendant’s amount-in-controversy allegation should be accepted when not
contested by the plaintiff or questioned by the court.” Id. at 553. In determining whether the
amount in controversy is satisfied, the Court may consider compensatory and statutory damages,
as well as punitive damages. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 572-73 (6th Cir.
2001).
49.

Here, Plaintiff asserts that it has suffered “millions of dollars” in losses “[a]s a

direct and foreseeable consequence of [Manufacturer] Defendants’ wrongful conduct.” (Compl.
¶ 51.)

Plaintiff seeks “[c]ompensatory damages in an amount sufficient to . . . completely

compensate Plaintiff for all damages” as well as treble damages and punitive damages. (Id.
Prayer for Relief ¶¶ i–iii.) It is thus clear that the alleged amount in controversy exceeds $75,000.
III.

ALL OTHER REMOVAL REQUIREMENTS ARE SATISFIED
A.

This Notice of Removal Is Timely

50.

This Notice of Removal is timely filed. Endo accepted service of the Complaint

on August 15, 2017. The last day to file the Notice of Removal is September 14, 2017.

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28 U.S.C. § 1446(b)(1). Because Endo filed the Notice of Removal on September 6, 2017,
removal is timely.
B.

All Properly Joined And Served Defendants Consent to Removal

51.

For purposes of removal based on diversity jurisdiction under 28 U.S.C. § 1332(a)

and pursuant to 28 U.S.C. § 1446(b), all defendants who have been properly joined and served
must consent to removal.
52.

The following properly joined and served Defendants consent to removal, as

indicated by their signing below:

Purdue Pharma L.P.; Purdue Pharma Inc.; The Purdue

Frederick Company, Inc.; Teva Pharmaceuticals USA, Inc.; Cephalon, Inc.; Johnson & Johnson;
Janssen Pharmaceuticals, Inc.; Ortho-McNeil-Janssen Pharmaceuticals, Inc. N/K/A Janssen
Pharmaceuticals, Inc.; Janssen Pharmaceutica, Inc. N/K/A Janssen Pharmaceuticals, Inc.; Watson
Laboratories, Inc.; Actavis LLC; Actavis Pharma, Inc. f/k/a Watson Pharma, Inc.; Dr. Russell
Portenoy; Dr. Perry Fine; Dr. Scott Fishman; and Dr. Lynn Webster. See City of Cleveland v.
Ameriquest Mort. Sec., Inc., 615 F.3d 496, 501 (6th Cir. 2010) (co-defendants may consent to
removal by filing a written consent).
53.

The following properly joined Defendants have not been properly served, and thus

their consent to removal is not required: Allergan plc f/k/a Actavis plc; and Allergan Finance
LLC f/k/a Actavis, Inc. f/k/a Watson Pharmaceuticals, Inc. See id.
54.

By filing this Notice of Removal, neither Endo nor any other defendant waives any

defense that may be available to them and reserve all such defenses. If any question arises as to
the propriety of the removal to this Court, Endo and the remaining properly joined defendants
request the opportunity to present a brief and oral argument in support of their position that this
case has been properly removed.

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CONCLUSION
WHEREFORE, Endo hereby removes this action from the Court of Common Pleas,
Cuyahoga County, to the United States District Court for the Northern District of Ohio.
DATED: September 6, 2017

/s/ Tera N. Coleman
Carole S. Rendon (0070345)
Tera N. Coleman (0090544)
BAKER & HOSTETLER LLP
Key Tower
127 Public Square, Suite 2000
Cleveland, OH 44114-1214
[phone]
[e-mail]
[e-mail]
Ingo W. Sprie, Jr.*
ARNOLD & PORTER KAYE SCHOLER LLP
250 West 55th Street
New York, NY 10019-9710
[phone]
[e-mail]
Sean Morris*
ARNOLD & PORTER KAYE SCHOLER LLP
777 S. Figueroa Street
44th Floor
Los Angeles, CA 90017
[phone]
[e-mail]
Attorneys for Defendants
ENDO HEALTH SOLUTIONS INC. and ENDO
PHARMACEUTICALS, INC.
* denotes national counsel who will seek pro hac
vice admission

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WRITTEN CONSENT OF OTHER
PROPERLY JOINED DEFENDANTS
Consent to removal on behalf of PURDUE
PHARMA L.P., PURDUE PHARMA INC., and
THE PURDUE FREDERICK COMPANY, INC.:
/s/ Daniel J. Buckley
Daniel J. Buckley (3772)
VORYS, SATER, SEYMOUR and PEASE LLP
301 East Fourth Street
Suite 3500, Great American Tower
Cincinnati, OH 45202
[phone]
[e-mail]
Patrick J. Fitzgerald*
R. Ryan Stoll*
SKADDEN, ARPS, SLATE, MEAGHER &
FLOM LLP
4 Times Square
New York, NY 10036
[phone]
[e-mail]
[e-mail]
-and155 North Wacker Drive
Chicago, IL 60606
[phone]
* denotes national counsel who will seek pro hac
vice admission
Consent to removal on behalf of Defendants
TEVA PHARMACEUTICALS USA, INC.,
CEPHALON, INC., WATSON
LABORATORIES, INC., ACTAVIS LLC, and
ACTAVIS PHARMA, INC. F/K/A WATSON
PHARMA, INC.
(Appearance by local counsel pending):
/s/ Tinos Diamantatos

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Tinos Diamantatos*
MORGAN, LEWIS & BOCKIUS LLP
77 West Wacker Drive
Chicago, IL 60601-5094
[phone]
[e-mail]
* denotes national counsel who will seek pro hac
vice admission
J. Gordon Cooney, Jr.*
Steven A. Reed*
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
[phone]
[e-mail]
[e-mail]
* denotes national counsel who will seek pro hac
vice admission
Brian M. Ercole
MORGAN, LEWIS & BOCKIUS LLP
200 S. Biscayne Blvd., Suite 5300
Miami, FL 33131-2339
[e-mail]
* denotes national counsel who will seek pro hac
vice admission
Consent to removal on behalf of Defendants
JOHNSON & JOHNSON, JANSSEN
PHARMACEUTICALS, INC.,
ORTHO-MCNEIL-JANSSEN
PHARMACEUTICALS, INC. N/K/A JANSSEN
PHARMACEUTICALS, INC., and JANSSEN
PHARMACEUTICA, INC. N/K/A JANSSEN
PHARMACEUTICALS, Inc.
(Appearance by local counsel pending):
/s/ Charles C. Lifland
Charles C. Lifland*
O’MELVENY & MYERS LLP
400 S. Hope Street
Los Angeles, CA 90071
[phone]
[e-mail]
[e-mail]
* denotes national counsel who will seek pro hac
vice admission

17

Consent to removal on behalf of Defendant
RUSSELL PORTENOY:
/s/ Jordan D. Rauch
O. Judson Scheaf, III (0040285)
Jordan D. Rauch (0093389)
HAHN LOESER & PARKS LLP
65 East State Street, Suite 1400
Columbus, Ohio 43215
[phone]
[e-mail]
[e-mail]
Consent to removal on behalf of Defendants
PERRY FINE, SCOTT FISHMAN, and LYNN
WEBSTER:
/s/ Gregory D. Brunton
Gregory D. Brunton (61722)
GORDON REES SCULLY MANSUKHANI
41 South High Street, Suite 240
Columbus, OH 43215
[phone]
[e-mail]

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing is being served upon the
following by regular United States mail, postage prepaid:
John R. Climaco
David M. Cuppage
Margaret M. Metzinger
CLIMACO, WILCOX, PECA, & GAROFOLI, C.O., L.P.A.
55 Public Square, Suite 1950
Cleveland, Ohio 44113
Attorneys for Plaintiff
Paul J. Napoli
Joseph L. Ciaccio
Salvatore C. Badala
NAPOLI SHKOLNIK, PLLC
400 Broadhollow Road - Suite 350
Melville, New York 11747
Attorneys for Plaintiff
Vincent I. Holzhall
STEPTOE & JOHNSON PLLC
41 South High St, Ste 2200
Columbus, Ohio 43215
Attorney for Defendant McKesson Corporation
Joseph F Murray
MURRAY MURPHY MOUL BASIL LLP
1114 Dublin Road
Columbus, OH 43215
Attorney for Defendant Cardinal Health, Inc.
AmerisourceBergen Corporation
1300 East Ninth St
Cleveland, Ohio 44114
Dated: September 6, 2017

/s/ Tera N. Coleman
Attorney for Defendants

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