WILLIAMS et al v. GLAXOSMITHKLINE et al

Filing 13

MEMORANDUM AND ORDER THAT THE MOTION TO REMAND IN C.A. 08-5116 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNADINO; THE MOTION TO REMAND IN C.A. 08-1726 IS GRANTED AND THE ACTION IS R EMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO; THE MOTION TO REMAND IN C.A. 08-1981 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES; THE M OTION TO REMAND IN C.A. 08-1733 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO; THE MOTION TO REMAND IN C.A. 08-5227 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT O F THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES; THE MOTION TO REMAND IN C.A. 08-1729 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO; THE MOTION TO REMAND IN C.A. 08-1727 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO; THE MOTION TO REMAND IN C.A. 08-1732 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR T HE COUNTY OF SAN FRANCISCO; THE MOTION TO REMAND IN C.A. 08-1728 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO; THE MOTION TO REMAND IN C.A. 08-835 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF RIVERSIDE; THE MOTION TO REMAND IN C.A. 08-2884 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO; THE MO TION TO REMAND IN C.A. 08-4235 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO; THE MOTION TO REMAND IN C.A. 08-1730 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF TH E STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO; THE MOTION TO REMAND IN C.A. 08-1731 IS GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO; THE MOTION TO REMAND IN C.A. 08-2943 I S GRANTED AND THE ACTION IS REMANDED TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES; THE MOTION TO REMAND IN C.A. 08-5019 IS DENIED; THE MOTION TO REMAND IN C.A. 08-4981 IS DENIED. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 2/25/09; 2/26/09 ENTERED AND COPIES MAILED TO LIAISON AND E-MAILED. (SEE PAPER # 352 IN 07-MD-1871). (tjd)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA __________________________________________ : IN RE: AVANDIA MARKETING, SALES : MDL NO. 1871 PRACTICES AND PRODUCTS : 07-md-1871 LIABILITY LITIGATION : __________________________________________: THIS DOCUMENT RELATES TO: : : Ayala-Castro, et al. v. GlaxoSmithKline, et al. : 2:08-cv-05116 : Bone, et al. v. SmithKline Beecham Corp. d/b/a : 2:08-cv-01726 GlaxoSmithKline, et al. : : Boone v. GlaxoSmithKline, et al. : 2:08-cv-01981 : Bowles, et al. v. SmithKline Beecham Corp. d/b/a : 2:08-cv-01733 GlaxoSmithKline, et al. : : Cross, et al. v. GlaxoSmithKline, et al. : 2:08-cv-05227 : Fisher v. SmithKline Beecham Corp. d/b/a : 2:08-cv-01729 GlaxoSmithKline, et al. : : Hall v. SmithKline Beecham Corp. d/b/a : 2:08-cv-01727 GlaxoSmithKline, et al. : : Hefner, et al. v. SmithKline Beecham Corp. d/b/a : 2:08-cv-01732 GlaxoSmithKline, et al. : : Jefferson v. SmithKline Beecham Corp. d/b/a : 2:08-cv-01728 GlaxoSmithKline, et al. : : Johnson, et al. v. GlaxoSmithKline, et al. : 2:08-cv-00835 : Khanna v. SmithKline Beecham Corp. d/b/a : 2:08-cv-02884 GlaxoSmithKline, et al. : : Massey, et al. v. SmithKline Beecham Corp. d/b/a : 2:08-cv-04981 GlaxoSmithKline, et al. : : Mick v. GlaxoSmithKline plc, et al. : 2:08-cv-05019 : Mitchell, et al. v. GlaxoSmithKline, et al. : 2:08-cv-04235

: Thornton v. SmithKline Beecham Corp. d/b/a : GlaxoSmithKline, et al. : : Upshaw v. SmithKline Beecham Corp. d/b/a : GlaxoSmithKline, et al. : : Williams, et al. v. GlaxoSmithKline, et al. : _________________________________________ :

2:08-cv-01730

2:08-cv-01731

2:08-cv-02943

MEMORANDUM OPINION AND ORDER RUFE, J. February 25, 2009 The seventeen above-captioned individual actions have been transferred to a multidistrict litigation ("MDL") docket established1 to consolidate, for purposes of coordinated pretrial proceedings, cases in federal court that "arise from allegations that certain diabetes drugs manufactured by [Defendant SmithKlineBeecham Corp. d/b/a GlaxoSmithKline ("GSK")] -- Avandia and/or two sister drugs containing Avandia (Avandamet and Avandaryl)2 -- cause an increased risk of heart attack and other physical injury, and that GSK failed to provide adequate warnings concerning that risk."3 Hundreds of actions have been transferred or filed directly into this MDL since its creation. Plaintiffs in the seventeen above-captioned cases bring strictly state law claims against GSK and other defendants. Each action was filed in state court, removed to federal court by GSK on an assertion of diversity jurisdiction, and with the exception of one

The MDL was established by the United States Judicial Panel on Multidistrict Litigation pursuant to 28 U .S .C . § 1407. The MDL was assigned to this Court in October, 2007.
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Hereinafter, the Court refers to Avandia, Avandaryl and Avandamet collectively as "Avandia".

October 16, 2007 Transfer Order of the United States Judicial Panel on Multidistrict Litigation, at *2 [ D o c . No. 1].

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action, federal question jurisdiction as well,4 and then transferred to this MDL. Prior to transfer, a motion to remand was filed in each action in the transferor federal district court. After transfer, each such motion was re-filed or re-noticed here. These seventeen remand Motions are presently before the Court. For the reasons that follow, fifteen Motions will be granted and two denied. I. BACKGROUND The Court heard oral argument as to all but one of the instant Motions on September 26, 2008.5 Briefing on the Motions is complete, including supplemental briefing permitted after oral argument. The parties' arguments in each of the cases at issue are reviewed below. A. The California Cases 1. Ayala-Castro, et al., 2:08-cv-05116 This action was originally filed in the Superior Court of the State of California for the County of San Bernadino by sixteen individual plaintiffs grouped in eight husband-and-wife couples. All Plaintiff couples bring identical state law claims. Ayala-Castro and her husband are citizens of California. No other Plaintiff is a citizen of either California or Pennsylvania. The named Defendants are GSK and McKesson Corporation ("McKesson").6

Defendant asserts diversity jurisdiction, but does not assert federal question jurisdiction, as a basis for its r e m o v a l of Mick v. GlaxoSmithKline plc, et al., No. 2:08-cv-05019. Argument was not presented as to the motion to remand in Massey et al. v. SmithKlineBeecham Corp. d / b / a GlaxoSmithKline, et al., because the case had not yet been filed in this Court and because it involves somewhat d iffe r e n t contentions than the argued cases. As a separate matter, the Court notes that a motion to remand in the case C o x v. SmithKlineBeecham Corp. d/b/a GlaxoSmithKline, et al., No. 2:08-cv-04238, which was fully briefed and s la t e d for argument at the hearing on September 26, 2008, was orally withdrawn by Plaintiff's counsel at the hearing a n d subsequently dismissed as withdrawn. See Doc. No. 223. The complaint also names as Defendants "Does 1-50", but this inclusion is not relevant to the remand a n a l y s is . See Sec. 1441(a).
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GSK is a pharmaceutical developer and manufacturer incorporated under Pennsylvania law with its principal place of business in Pennsylvania, and McKesson is a Delaware Corporation engaged in drug distribution with its principal place of business in California. After accepting service of process, GSK and McKesson removed the action to the United States District Court for the Central District of California, Eastern Division - Riverside, on May 7, 2008, claiming both diversity and federal question jurisdiction.7 The action was transferred from that court to this MDL on October 14, 2008. In their Motion, Plaintiffs argue the case must be remanded pursuant to 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction. In particular, they argue that their claims do not implicate sufficiently substantial questions of federal law to support federal question jurisdiction and that there is not complete diversity of citizenship between the parties because McKesson is a California citizen. They also argue removal is prohibited by the "forum defendant rule" of 28 U.S.C. § 1441(b), which bars removal premised on diversity jurisdiction if any "properly joined and served" defendant is a citizen of the forum state, as McKesson is here. GSK counters that federal question jurisdiction exists over this action because Plaintiffs' exclusively state law claims raise substantial questions of federal law. Referring to one of the counts of the Complaint, GSK asserts that "the principal federal issue . . . is whether a plaintiff can recover against McKesson for negligent failure to warn where federal law clearly

Defendants additionally argued that the removal satisfied all requirements for removal set forth in the C la s s Action Fairness Act of 2005 ("CAFA"), as found under 28 U.S.C. § 1332(d), but also acknowledged that P la i n tiffs had expressly stated in the Complaint that the action was not a class action. From extensive subsequent b r i e fin g and argument by the parties relating to this action and others in which CAFA initially was raised as a p o te n tia l basis for removal (e.g., Johnson, et al., No. 2:08-cv-00835; Mitchell, et al., No. 2:08-cv-04235), it is clear th a t the parties have abandoned this line of argument, and accordingly, the Court will not address it further.

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prohibits the distributor from altering the manufacturer's label."8 McKesson aside, GSK also asserts that federal question jurisdiction exists because Plaintiffs' claims require the Court to construe and apply the Federal Food, Drug and Cosmetic Act ("FDCA")9 and its implementing regulations. There is at least one such claim in the Complaint.10 With respect to diversity jurisdiction, GSK acknowledges, as it must, that McKesson is a California citizen, as are two of the plaintiffs. However, GSK argues that the citizenship of McKesson must be disregarded because it was fraudulently joined as a defendant. GSK asserts that McKesson's joinder was both factually and legally fraudulent ­ factually because certain early evidence shows that specific Plaintiffs in cases filed in California state court did not receive Avandia distributed by McKesson, and legally because California law does not allow liability for drug distributors under the causes of action asserted by Plaintiffs. GSK argues Plaintiffs' naming of McKesson as a defendant was a sham designed to thwart federal jurisdiction. If McKesson's citizenship is so ignored, complete diversity exists among the parties. Defendants also contend that the forum defendant rule does not require remand, asserting that McKesson's citizenship is to be ignored in this analysis as well because of its purportedly fraudulent joinder. As a third argument, GSK asserts that Plaintiffs are fraudulently misjoined, and that their claims should be severed and considered separately as a result.

Def.'s Mem. On Federal Question Jurisdiction, at *3 [Doc. No. 231]. This argument is the primary basis f o r GSK's claim of federal question jurisdiction in each case naming McKesson as a party in interest.
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21 U.S.C. § 301 et seq. ("FDCA").

The Third Count of Plaintiffs' Complaint, "Negligence - Failure to Warn," explicitly refers to the FDCA a s well as certain implementing administrative regulations.

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2. Bone, et al., 2:08-cv-01726 In this action, originally filed in the Superior Court of the State of California for the County of San Francisco, eleven unrelated Plaintiffs bring identical state law claims against GSK and McKesson. One plaintiff, Jesus Cota ("Cota"), is a California citizen, and another, Barron Gatta ("Gatta"), is a Pennsylvania citizen. The citizenship of two other Plaintiffs also bears noting, that of Laviola Townsend of Illinois, and Dorothy Bone of Alabama. After both Defendants were served, GSK removed the action to the United States District Court for the Northern District of California, San Francisco Division on November 20, 2007, claiming both federal question and diversity jurisdiction. McKesson consented to removal. The action was subsequently transferred from that court and filed in this MDL on April 11, 2008. Plaintiffs move for remand on the ground that subject matter jurisdiction is lacking. They contend that because Cota and McKesson are both citizens of California, and Gatta and GSK are both citizens of Pennsylvania, diversity of citizenship is doubly defeated. Also, for the reasons reviewed in the Ayala-Castro case summary, above, Plaintiffs argue that the forum defendant rule bars removal and that federal question jurisdiction does not lie. GSK opposes remand, arguing that federal question jurisdiction exists as to all Plaintiffs, and that diversity jurisdiction exists as to all Plaintiffs except Gatta. Its arguments with respect to federal question jurisdiction are the same as those reviewed in the Ayala-Castro summary, above. As to diversity jurisdiction, GSK argues that McKesson was fraudulently joined as a defendant, such that its citizenship should be ignored in the diversity analysis. In this connection, GSK notes that early discovery shows that Townsend, Bone and Gatta did not ingest Avandia distributed by McKesson. Because McKesson was fraudulently joined, its citizenship 6

should also be ignored when the Court evaluates the application of the forum defendant rule, GSK argues. Finally, GSK argues Plaintiffs are fraudulently misjoined, such that the Court should sever and remand the claims of Pennsylvania citizen Gatta and retain jurisdiction over the remainder of the case. 3. Boone, 2:08-cv-01981 Plaintiff Leslie Boone ("Boone") originally filed this action in the Superior Court of California for the County of Los Angeles. Boone is a citizen of Nevada. He brings identical state law claims against GSK, McKesson and 50 "Doe" defendants. After service of process was made upon both Defendants, GSK and McKesson removed the case to the United States District Court for the Central District of California, Western Division ­ Los Angeles, on the basis of both federal question and diversity jurisdiction. The case was transferred from that court and filed in this MDL on April 29, 2008. Plaintiff moves for remand, invoking the forum defendant rule and an absence of federal question jurisdiction. Defendants counter that McKesson is fraudulently joined, so that its citizenship must be ignored for purposes of the forum defendant rule. If removal is found to be proper on this basis, diversity of citizenship jurisdiction exists over the action. Defendants alternatively argue that Plaintiff's state law claims raise substantial issues of federal law, conferring federal question jurisdiction over the action. Defendants' fraudulent joinder and federal question arguments are identical to those reviewed in the Ayala-Castro case summary, above. 4. Bowles, et al., 2:08-cv-01733 This action was originally filed in the Superior Court of the State of California for 7

the County of San Francisco by twelve unrelated Plaintiffs bringing identical state law claims against GSK and McKesson. One plaintiff, Ann McGary ("McGary"), is a California citizen. The citizenship of three other Plaintiffs bears noting: Samuel Cantey is a citizen of South Carolina ("Cantey"); Alan Orlomoski is a citizen of Connecticut ("Orlomoski"); and Jerlean Conway is a citizen of Louisiana ("Conway"). After McKesson accepted service of process but before GSK was served, GSK removed this case to the United States District Court for the Northern District of California, San Francisco Division, on December 13, 2007, on the basis of federal question and diversity jurisdiction. McKesson consented to removal. The action was transferred from that Court and filed in this MDL on April 11, 2008. Plaintiffs move for remand for lack of subject matter jurisdiction. They contend that because McGary and McKesson are both citizens of California, diversity is absent. They further contend that the forum defendant rule prohibits removal of this action on the basis of diversity jurisdiction. Also, for the reasons reviewed in the Ayala-Castro case summary, above, Plaintiffs argue that federal question jurisdiction does not lie in this matter. GSK argues remand is improper because both federal question and diversity jurisdiction exist as to all Plaintiffs. Its arguments with respect to federal question and diversity jurisdiction are the same as those reviewed in the Ayala-Castro summary, above. In connection with its argument that McKesson is fraudulently joined and so to be disregarded in the diversity evaluation, GSK notes that early discovery shows that Cantey, Orlomoski and Conway did not ingest Avandia distributed by McKesson. GSK also argues that because McKesson was fraudulently joined, its citizenship must be ignored in the forum defendant rule analysis. Finally, 8

GSK argues Plaintiffs are fraudulently misjoined, such that the Court should sever the claims of each Plaintiff from those of Bowles for separate consideration. 5. Cross, et al., 2:08-cv-05227 This action was originally filed in the Superior Court of the State of California for the County of Los Angeles by thirty-two unrelated Plaintiffs bringing identical state law claims against GSK, McKesson and 100 "Doe" defendants. Numerous Plaintiffs are California citizens ("California Plaintiffs"). One Plaintiff, Betty Riley, is a citizen of Pennsylvania ("Riley"). Before any Defendant was served, GSK removed this case to the United States District Court for the Central District of California, Western Division - Los Angeles, on March 24, 2008, on the basis of both federal question and diversity jurisdiction. GSK asserted that McKesson's consent to the removal was not necessary since it had not been served. The action was transferred from that Court and filed in this MDL on November 3, 2008. Plaintiffs move for remand for lack of subject matter jurisdiction. Pointing to the California citizenship of the California Plaintiffs and McKesson, and the Pennsylvania citizenship of Riley and GSK, they assert that the parties are non-diverse. Plaintiffs also assert that the forum defendant rule bars removal premised on diversity jurisdiction notwithstanding the fact that McKesson was not served prior to removal from California court. And for the reasons reviewed in the Ayala-Castro case summary, above, Plaintiffs argue that there is no basis for federal question jurisdiction over this matter. GSK argues remand is improper because federal question jurisdiction lies as to the entire action and alternatively, that diversity jurisdiction lies as to each Plaintiff except Pennsylvania citizen Riley, who should be severed. Its arguments with respect to federal 9

question are the same as those reviewed in the Ayala-Castro summary, above. GSK further argues that because McKesson was fraudulently joined, its citizenship must be ignored in the Court's diversity jurisdiction and forum defendant rule analyses. Finally, it contends that the Court should sever Plaintiffs' claims as fraudulently misjoined, thus separating the action brought by Riley and permitting the Court to retain jurisdiction over the remainder of the cases. 6. Fisher, 2:08-cv-01729 Plaintiff George Fisher ("Fisher") originally filed this action in the Superior Court of California for the County of San Francisco. Fisher is a citizen of Texas. He brings exclusively state law claims against GSK and McKesson. After both Defendants were served, GSK removed the case to the United States District Court for the Northern District of California, San Francisco Division, on the basis of federal question and diversity jurisdiction. McKesson consented to removal. The case was transferred from that court and filed in this MDL on April 11, 2008. The arguments of the parties with respect to remand are essentially identical to those reviewed in the Boone case summary, above. Thus, Plaintiff argues that remand is required because the forum defendant rule bars removal on the basis of diversity jurisdiction and because federal question jurisdiction is absent. GSK counters that McKesson is fraudulently joined, and therefore its citizenship must be ignored in the forum defendant rule analysis. If removal is found to be procedurally proper in this fashion, diversity jurisdiction exists over the action. Alternatively, GSK argues that Fisher's state law claims raise substantial issues of federal law, conferring federal question jurisdiction. Defendant's fraudulent joinder and federal question arguments are identical to those reviewed in the Ayala-Castro case summary, above. 10

7. Hall, 2:08-cv-01727 Plaintiff James Hall ("Hall"), a citizen of South Carolina, originally filed this action in the Superior Court of California for the County of San Francisco. Hall brings identical state law claims against GSK and McKesson. After both Defendants received service of process, GSK removed the case to the United States District Court for the Northern District of California, San Francisco Division, on the basis of federal question and diversity jurisdiction. McKesson consented to removal. The case was transferred from that court and filed in this MDL on April 11, 2008. The arguments of the parties with respect to remand are in all material respects identical to those reviewed in the Fisher and Boone case summaries, above. Thus, Plaintiff moves for remand, contending the forum defendant rule renders removal on the basis of diversity of citizenship procedurally improper, and that federal question jurisdiction does not lie over this action. GSK counters that McKesson is fraudulently joined, and therefore its citizenship must be ignored for purposes of the forum defendant rule. If removal is found to be procedurally proper on this basis, diversity jurisdiction exists over the action. Alternatively, GSK argues that Hall's state law claims raise substantial issues of federal law that give rise to federal question jurisdiction. Defendant's fraudulent joinder and federal question arguments are identical to those reviewed in the Ayala-Castro case summary, above. 8. Hefner, et al., 2:08-cv-01732 Two unrelated Plaintiffs, citizens of Louisiana and Alabama, respectively, originally filed this action in the Superior Court of California for the County of San Francisco. Plaintiffs bring identical state law claims against GSK and McKesson. 11

Before either Defendant was served with the Complaint, GSK removed the case to the United States District Court for the Northern District of California, San Francisco Division, on the basis of federal question and diversity jurisdiction. GSK asserted McKesson's consent to removal was unnecessary since McKesson had not been served. The case was transferred from that court and filed in this MDL on April 11, 2008. Plaintiffs move for remand, arguing that the forum defendant rule renders removal on the basis of diversity of citizenship procedurally improper, and that federal question jurisdiction does not lie over this action. GSK counters that the forum defendant rule is inapposite because neither Defendant had been "properly . . . served" at the time of removal, as would be required to trigger the strictures of 28 U.S.C. § 1441(b). GSK adds that McKesson's citizenship must be ignored for purposes of the forum defendant rule in any event because it is fraudulently joined. Alternatively, GSK asserts that Plaintiffs' state law claims raise substantial issues of federal law that give rise to federal question jurisdiction, an argument identical to that made in other cases and reviewed more thoroughly in the Ayala-Castro case summary, above. 9. Jefferson, 2:08-cv-01728 Plaintiff James Jefferson ("Jefferson"), a citizen of North Carolina, originally filed this action in the Superior Court of California for the County of San Francisco. Jefferson brings identical state law claims against GSK and McKesson. After service of process was made upon both Defendants, GSK removed the case to the United States District Court for the Northern District of California, San Francisco Division, on the basis of federal question and diversity jurisdiction. McKesson consented to removal. The case was transferred from that court and filed in this MDL on April 11, 2008. 12

The arguments of the parties with respect to remand are in all material respects identical to those reviewed in the Hall case summary, above, and will not be restated here. 10. Johnson, et al., 2:08-cv-00835 This action was originally filed in the Superior Court of the State of California for the County of Riverside by eight plaintiffs bringing identical state law claims against GSK, McKesson and 500 "Doe" defendants. Plaintiff Mary Ortiz ("Ortiz") and three other Plaintiffs ("Other California Plaintiffs") are California citizens. After service was made upon McKesson, but before it was effectuated upon GSK, GSK removed the action to the United States District Court for the Central District of California, Eastern Division - Riverside, on January 11, 2008, claiming both diversity and federal question jurisdiction. McKesson consented to removal. The action was transferred from that court and filed in this MDL on February 21, 2008. Plaintiffs move for remand for lack of subject matter jurisdiction. They contend that because four Plaintiffs and McKesson are citizens of California, diversity is absent. They also argue that the forum defendant rule prohibits removal on the basis of diversity jurisdiction. Also, for the reasons reviewed in the Ayala-Castro case summary, above, Plaintiffs argue that federal question jurisdiction does not lie herein. GSK counters that both federal question and diversity jurisdiction exist as to all Plaintiffs. Its arguments with respect to federal question and diversity jurisdiction are the same as those reviewed in the Ayala-Castro summary, above. In connection with its argument that McKesson is fraudulently joined, GSK notes that early discovery shows that Ortiz did not ingest Avandia distributed by McKesson. No such evidence appears as to the Other California 13

Plaintiffs. GSK further argues that because McKesson was fraudulently joined, its citizenship must be ignored in the Court's analysis of the forum defendant rule. Finally, GSK contends that Plaintiffs are fraudulently misjoined, and that their claims should be severed and considered separately as a result. 11. Khanna, 2:08-cv-02884 Plaintiff Mohinder Khanna ("Khanna"), a citizen of California, originally filed this action in the Superior Court of California for the County of San Francisco, bringing identical state law claims against GSK, McKesson and certain unnamed "Doe" defendants. Before service of process was made upon either Defendant, GSK removed the action to the United States District Court for the Northern District of California, San Francisco Division, on the basis of federal question and diversity jurisdiction. GSK asserted McKesson's consent to removal was unnecessary because McKesson had not been served. The case was transferred from that court and filed in this MDL on June 20, 2008. Khanna moves for remand, arguing that the forum defendant rule renders removal on the basis of diversity of citizenship procedurally improper, that the parties are non-diverse, and that federal question jurisdiction does not lie over this action. GSK counters that the forum defendant rule is inapposite because McKesson had not been "properly . . . served" at the time of removal, as required to implicate the additional requirements of 28 U.S.C. § 1441(b). GSK also contends that McKesson's citizenship must be ignored for purposes of the forum defendant rule because it is fraudulently joined. Alternatively, GSK asserts that Plaintiffs' state law claims raise substantial issues of federal law, giving rise to federal question jurisdiction, an argument reviewed in the Ayala-Castro case summary, above. 14

12. Mitchell, et al., 2:08-cv-04235 This action was originally filed in the Superior Court of the State of California for the County of Sacramento by twelve Plaintiffs ­ five husband and wife pairs, and two surviving beneficiaries of deceased individuals ­ bringing identical state law claims against GSK, McKesson and 50 "Doe" defendants. Plaintiffs F.C. and Mitsuko Mitchell are California citizens ("the Mitchells"). After both McKesson and GSK accepted service of process, GSK removed the case to the United States District Court for the Eastern District of California, Sacramento, on March 10, 2008, on the basis of federal question and diversity jurisdiction. McKesson consented to removal. The action was transferred from that Court and filed in this MDL on September 3, 2008. Plaintiffs move for remand for lack of subject matter jurisdiction. They contend that because the Mitchells and McKesson are California citizens, the parties are non-diverse. They further contend that due to McKesson's California citizenship, the forum defendant rule prohibits removal premised on diversity jurisdiction. Also, for the reasons reviewed in the Ayala-Castro case summary, above, Plaintiffs argue that federal question jurisdiction does not lie in this matter. GSK argues that federal question and diversity jurisdiction exist as to all Plaintiffs. Its arguments with respect to federal question and diversity jurisdiction are the same as those reviewed in the Ayala-Castro summary, above. GSK also argues that because McKesson was fraudulently joined, its citizenship must be ignored in the forum defendant rule analysis. Finally, GSK argues Plaintiffs are fraudulently misjoined, such that the Court should 15

sever the claims of each Plaintiff for separate consideration. 13. Thornton, 2:08-cv-01730 Plaintiff Hector Thornton ("Thornton"), a citizen of Ohio, originally filed this action in the Superior Court of California for the County of San Francisco, bringing identical state law claims against GSK and McKesson. After service of process was made upon both Defendants, GSK removed the case to the United States District Court for the Northern District of California, San Francisco Division, on the basis of federal question and diversity jurisdiction. McKesson consented to removal. The case was transferred from that court and filed in this MDL on April 11, 2008. The arguments of the parties with respect to remand are in all material respects identical to those reviewed in the Hall case summary, above, and will not be restated here. 14. Upshaw, 2:08-cv-01731 Plaintiff Ivan Upshaw ("Upshaw"), a citizen of Kansas, originally filed this action in the Superior Court of California for the County of San Francisco, bringing identical state law claims against GSK and McKesson. After service of process was made upon both Defendants, GSK removed the case to the United States District Court for the Northern District of California, San Francisco Division, on the basis of federal question and diversity jurisdiction. McKesson consented to removal. The case was transferred from that court and filed in this MDL on April 11, 2008. The arguments of the parties with respect to remand are materially identical to those reviewed in the Hall case summary, above, and will not be restated here.

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15. Williams, et al., 2:08-cv-02943 This action was originally filed in the Superior Court of the State of California for the County of Los Angeles by twenty-one unrelated plaintiffs bringing identical state law claims against GSK, McKesson and 100 "Doe" defendants. Plaintiffs Deborah Williams ("Williams") and Leo Pallanck ("Pallanck") are California citizens. The citizenship of three other Plaintiffs bears noting: Elizabeth Huerta is a citizen of Nevada ("Huerta"); Shirley Loeffler is a citizen of Minnesota ("Loeffler"); and Roy Wade Scott is a citizen of Tennessee ("Scott"). Before service was made upon either McKesson or GSK, GSK removed the action to the United States District Court for the Central District of California, Western Division - Los Angeles, on April 18, 2008, claiming both diversity and federal question jurisdiction. McKesson consented to removal. The action was transferred from that court and filed in this MDL on June 24, 2008. Plaintiffs move for remand for lack of subject matter jurisdiction. They contend that because Williams, Pallanck and McKesson are citizens of California, diversity is absent. They also argue that in light of McKesson's California citizenship, the forum defendant rule prohibits removal premised upon diversity jurisdiction. Also, for the reasons reviewed in the Ayala-Castro case summary, above, Plaintiffs argue that federal question jurisdiction does not exist over this action. GSK counters that both federal question and diversity jurisdiction exist as to all Plaintiffs. Its arguments with respect to federal question and diversity jurisdiction are the same as those reviewed in the Ayala-Castro summary, above. In arguing that McKesson's joinder is fraudulent, GSK notes early discovery showing that Huerta, Loeffler and Scott did not ingest 17

Avandia distributed by McKesson. No such evidence appears as to any other Plaintiff. GSK further argues that because McKesson was fraudulently joined, its citizenship must be ignored in the Court's analysis of the forum defendant rule. Finally, GSK contends that Plaintiffs are fraudulently misjoined, and that as a result their claims should be severed and considered separately. B. The North Carolina Case 16. Massey, et al., 2:08-cv-04981 On May 27, 2008, Plaintiffs, both citizens of North Carolina, filed this action in the General Court of Justice for the State of North Carolina, Superior Court Division, Durham County, bringing state law claims against GSK. GSK removed the action to the United States District Court for the Middle District of North Carolina on the basis of both federal question and diversity jurisdiction. The case was subsequently transferred and filed in this MDL on October 20, 2008. Plaintiffs move for remand for lack of subject matter jurisdiction, arguing that their claims do not give rise to federal question jurisdiction, and, notably, that the parties are nondiverse. In support of the latter argument, Plaintiffs assert that GSK maintains its principal place of business in North Carolina, and thus may be considered a citizen of North Carolina for purposes of the diversity jurisdiction analysis. GSK counters that it is a citizen of Pennsylvania, and sets forth evidence to that effect. GSK also argues that there is federal question jurisdiction over this case for the same reasons asserted in the cases already reviewed.

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C. The New York Case 17. Mick, 2:08-cv-05019 Plaintiff Renee Mick ("Mick"), a citizen of New York, originally filed this action in the New York Supreme Court, Niagara County, bringing state law claims against GSK as well as Rite Aid Pharmacy and Rite Aid of New York, Inc. ("Rite Aid"). Rite Aid is a New York corporation in the business of owning and operating retail drug stores with its principal place of business in New York. After service, GSK removed the action with Rite Aid's consent to the United States District Court for the Western District of New York, on the basis of diversity of citizenship alone. The action was transferred and subsequently filed in this MDL on October 21, 2008. Mick moves for remand for lack of subject matter jurisdiction. She argues that because both she and Rite Aid are New York citizens, the parties are non-diverse. GSK argues the citizenship of Rite Aid should be disregarded for purposes of the diversity of citizenship analysis because Rite Aid was fraudulently joined. In support, GSK contends there is no basis under New York law for Mick's claims against Rite Aid. II. DISCUSSION A. Applicable Law 1. General Principles Disposition of the instant motions is governed by the federal remand statute,11

11 28 U.S.C. §§ 1441 - 1453. As an MDL court, the Court applies interpretations of federal law of the Court o f Appeals for the Third Circuit, in which it sits. See M e n o w i tz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993); In re K o r e a n Air Lines Disaster, 829 F.2d 1171, 1174 (D.C. Cir. 1987); In re Diet Drugs Litigation, 294 F. Supp. 2d 667, 6 7 2 (E.D. Pa. 2003).

19

which, in pertinent part, refers to the requirements for subject matter jurisdiction set forth in 28 U.S.C. §§ 1331 and 1332. Pursuant to 28 U.S.C. § 1441(a), a defendant may remove an action brought in state court if it could have been brought in federal court in the first instance. A federal district court has such original jurisdiction to hear a civil action in either of two circumstances. The first is if the action "aris[es] under the Constitution, laws or treaties of the United States" ("federal question jurisdiction").12 The second is if the action involves an amount in controversy in excess of $75,000 and is between citizens of different states ("diversity jurisdiction").13 The United States Supreme Court has established that "[a] case `aris[es] under' federal law within the meaning of § 1331 . . . if a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law."14 Under § 1441(b) of the federal remand statute, an action may be removed on the basis of federal question jurisdiction without regard to the citizenship of the parties to it.15 For diversity jurisdiction to exist, complete diversity of citizenship between plaintiffs and defendants is required. With respect to removal, in contrast to the treatment of cases "arising under" federal law, § 1441(b) prohibits removal of an action premised on diversity jurisdiction if any "of the parties in interest properly joined and served as defendants is a citizen

12

28 U.S.C. § 1331.

28 U.S.C. § 1332(a)(1). It is undisputed that all actions presently at issue involve amounts in controversy in excess of $75,000.
14

13

Empire Healtchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006) (quotations omitted).

Other procedural requirements for removal set forth in the removal statute, see, e.g., 28 U.S.C. § 1446, a r e not at issue in the present motions and are not reviewed herein.

15

20

of the State in which such action is brought."16 This restriction is known as the "forum defendant rule." It should be noted that regardless of service, the presence of a properly joined, non-diverse defendant destroys complete diversity, and thus, diversity jurisdiction.17 Pursuant to 28 U.S.C. § 1447(c), if, upon motion or sua sponte, a district court finds that it lacks subject matter jurisdiction over a removed action, it must remand the action to state court.18 Remand may otherwise be appropriate due to "a defect in the removal process,"19 such as non-compliance with the requirements of 28 U.S.C. §§ 1441 or 1446. In general, a court must construe the removal statute narrowly, resolving "all doubts . . . in favor of remand."20 2. Forum Defendant Rule Courts have long analyzed the forum defendant rule in light of the main purpose of diversity jurisdiction ­ "to avoid prejudice to out-of-state defendants"21 ­ as well as the understanding that Congress intended § 1441(b) to restrict federal jurisdiction.22 Thus, the rule prohibits removal on diversity grounds of an action involving a properly joined and served instate defendant whose presence in the action presumably reduces or eliminates the risk of

16

28 U.S.C. § 1441(b) (emphasis added).

See Castner v. Exxon Company, U.S.A., 563 F. Supp. 684, 687-88 (E.D. Pa. 1983). See also Allen v. G la x o S m ith K lin e PLC, Civ. No. 07-5045, 2008 W L 2247067, at *6 (E.D. Pa. May 30, 2008) (citing Pullman Co. v. J e n k in s , 305 U.S. 534, 540-41 (1939) (holding that non-diverse defendant defeats removal jurisdiction regardless of s e r v i c e ) and Pecherski v. General Motors Corp., 636 F.2d 1156, 1159 (8th Cir. 1981) (Pullman holding relating to d i v e r s i t y requirement regardless of service remains viable law)).
18

17

28 U.S.C. § 1447(c). PAS v. Travelers Ins. Co., 7 F.3d 329, 352 (3d Cir. 1999). Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987). Allen, 2008 W L 2247067, at*4 (citing McSparran v. W e i s t, 402 F.2d 867, 876 (3d Cir. 1968)). See, e.g., Oxendine v. Merck & Co., Inc., 236 F. Supp. 2d 517, 524-25 (D. Md. 2002).

19

20

21

22

21

prejudice against the defense;23 Congress has deemed that defendants in such actions do not require access to the federal courts. At the same time, the rule's "joined and served" requirement ensures that a plaintiff cannot thwart a foreign defendant's ability to remove the action simply by naming a forum defendant which the plaintiff has no intention of actually serving and pursuing in litigation.24 Notably, the rule is silent as to arguably equivalent defense tactics, in particular, the phenomenon ­ enabled by modern litigation technology ­ of the forum defendant removing an action before being served with process due to its ability to electronically monitor state court filings. A literal reading of the "properly joined and served" language of § 1441(b) would suggest that the statute allows even a forum defendant into federal court provided it can win such a "race to remove." Judicial application of the forum defendant rule has not been uniform. Many courts, interpreting § 1441(b) literally, have permitted removal by a not-yet-served forum defendant.25 Many other courts, emphasizing the limited nature of federal jurisdiction, the purposes of diversity jurisdiction and the restrictive nature of the removal statute, have held that the "properly joined and served" requirement of § 1441(b) does not tacitly permit removal by an un-served forum defendant, and have remanded actions thus removed.26

23

See Dresser Indus., Inc. v. Underwriters at Lloyd's of London, 106 F.3d 494, 499 (3d Cir. 1997).

See Allen, 2008 W L 2247067, at *4 (citing Stan W in s to n Creatures, Inc. v. Toys "R" Us, Inc., 314 F. S u p p . 2d 177, 181 (S.D.N.Y. 2003)). See, e.g., Valerio v. SmithKline Beecham Corp., No. 08-60522, 2008 W L 3286976, at *2 (S.D. Fla. Aug. 7 , 2008)(finding removal by a forum defendant prior to service proper under plain language of 28 U.S.C. § 1441(b)); T h o m s o n v. Novartis, No. 06-6280, 2007 W L 1521138 (D. N.J. May 22, 2007) (same); Ott v. Consol. Freightways C o r p . , 213 F. Supp. 2d 662, 665 & n. 3 (S.D. Miss. 2002) (collecting cases). See, e.g., Sullivan v. Novartis Pharmaceuticals Corp., --- F. Supp. 2d ----, Civ. No. 08-1091, 2008 W L 4 1 4 8 7 3 0 , at *1 -*7 (D. N.J. Sept. 10, 2008) (comprehensively analyzing language, purposes and legislative history o f 28 U.S.C. § 1441(b), "look[ing] beyond the language of the statute to avoid an absurd and bizarre result," and
26 25

24

22

This Court, agreeing with the latter line of cases, rejects any construction of § 1441(b) that would allow an in-state defendant to side-step the restrictive purpose of the forum defendant rule by "racing to remove" before being served with process. The core aim of diversity jurisdiction, to permit out-of-state defendants an avenue of relief from prejudice in a foreign state court, plainly is not implicated by a forum defendant's ability to remove an action filed in its home state. The Court agrees with the comprehensive analysis of the question by Senior District Judge Debevoise of the District of New Jersey in Sullivan v. Novartis, in which he concludes in part, after exhaustive research into the relevant case law, language and history of § 1441(b), that any "contention that removability should depend on the timing of service is absurd on its face, and could not have been intended by Congress."27 This reasoning has some bearing on the related issue of whether the forum defendant rule permits removal by an out-of-state defendant before any defendant has been served, in a case in which a forum defendant has been named. Again, and along similar lines to those just seen, district courts have split on the question.28 Some courts, applying a strict, literal reading of § 1441(b), and noting its silence as to whether service on any defendant is a prerequisite to its operation, have held that a complete lack of service is no bar to removal.29

remanding action removed by un-served forum defendant); Allen, 2008 W L 2247067, at *6; Fields v. Organon USA I n c ., Civ. No. 07-2922, 2007 W L 4365312, at *5 (D. N.J. Dec. 12, 2007); Vivas v. Boening Co., 486 F. Supp. 2d 7 2 6 (N.D. Ill. 2007); Castner, 563 F. Supp. at 687-88.
27

--- F. Supp. 2d ----, 2008 W L 4148730, at *5 (citing Oxendine, 236 F. Supp. 2d at 526).

Compare City of Ann Arbor Employees' Retirement Sys. v. Gecht, No. C-06-7453, 2007 W L 760568, at * 6 (N.D. Cal. March 9, 2007) (through literal reading of § 1441(b), finding no statutory bar to removal of action in w h i c h no defendant has been served) and Holmstrom v. Harad, No. 05-C-2714, 2005 W L 1950672, at *2 (N.D. Ill. A u g . 11, 2005) (holding that removal by unserved out-of-state defendant not permitted where no defendant has been s e rv e d ) .
29

28

E.g., Gecht, 2007 W L 760568, at *6.

23

Others have ruled that when no defendant has been served, but a forum defendant has been named, the citizenship of the forum defendant may not be ignored for purposes of § 1441(b).30 Discussing the rationale for the latter approach, district courts have noted that "when no defendant has been served . . . the non-forum defendant stands on equal footing as the forum defendant . . . [n]either defendant in that scenario is obligated to appear in court[, n]or has the thirty day period for removal started to run."31 Courts also note the real concern of encouraging an unfair "race to remove" by technologically sophisticated non-forum defendants through a rule that permits removal prior to any service.32 The reasoning of the latter rulings is persuasive to the Court, and will be followed herein. The application of the forum defendant rule is different when, in an action involving multiple defendants, an out-of-state defendant removes after it has been served, but prior to service upon any forum defendant. In that situation, the rationale behind the "joined and served" requirement of § 1441(b) and, to some extent, the protective purpose of diversity jurisdiction, are implicated, and removal by the foreign defendant is proper.33 In general, a district court should remand an action it finds to have been removed

E.g., Recognition Communications, Inc. v. American Automobile Association, No. 97-CV-0945-P, 1998 W L 119528, at *3 (N.D. Tex. March 5, 1998); Holmstrom, 2005 W L 1950672, at *2. Holmstrom, 2005 W L 1950672, at *2 ("the protection afforded by the `joined and served' requirement is w h o lly unnecessary for an unserved non-forum defendant" ) (citations omitted); see also Fields, 2007 W L 4365312, a t *5 ("[s]tated another way, an out-of-state defendant should not fear local bias before it is served, and therefore, h a s no basis for removal before it is served"). E.g. Fields, 2007 W L 4365312, n.2 ("[i]n some state court systems, evidently, the race by defendants to r e m o v e before being served by the plaintiff is easily won by defendants because plaintiffs cannot serve defendant b e f o r e receiving a state track assignment number. This assignment can take over a week from the time the plaintiff f i le s suit, during which time the defendant can learn of the action and remove it to federal court.").
33 32 31

30

See Vanderwerf v. GlaxoSmithKline, PLC, Civ. No. 05-1315, 2005 W L 6151369 (E.D. Pa. May 5,

2005).

24

in violation of the forum defendant rule.34 The district court may stay its hand in such circumstances, however, to consider arguments that the forum defendant at issue was fraudulently joined.35 2. Fraudulent Joinder "The doctrine of fraudulent joinder prevents a plaintiff from joining a non-diverse defendant `with no real connection to the controversy' to defeat federal removal jurisdiction."36 Because the "right of removal cannot be defeated by a fraudulent joinder of a resident defendant," a district court may disregard the citizenship of any fraudulently joined defendant when assessing the propriety of removal premised on diversity jurisdiction.37 A district court may base a finding of fraudulent joinder on factual or legal grounds. Under the test established by the Court of Appeals for the Third Circuit, such a finding is appropriate "where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment."38 To assess the quality of a claim in these regards, a district court must look to the requirements of state law. A claim is colorable if it is not "wholly insubstantial and frivolous" in light of the relevant law.39 With respect to a claim's
34

See PAS, 7 F.3d at 352. Castner, 563 F. Supp. at 687-88.

35

In re Fosamax Prods. Liability Litig., MDL No. 1789, 2008 W L 2940560, at *3 (S.D.N.Y. July 29, 2008) ( q u o tin g Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 4601-61 (2d Cir. 1998)).
37

36

W ils o n v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921); In re Diet Drugs Litig., 294 F. Supp. 2d at

672.
38

Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985) (quotation omitted). Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992).

39

25

factual basis, a "limited piercing of the allegations to discover fraudulent joinder" may be appropriate.40 The "limit[ation]" is significant, however, with the permissible inquiry being less probing than the factual review a district court conducts in deciding a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).41 The burden of demonstrating that a defendant was fraudulently joined rests with the defendant making the charge.42 The burden is a heavy one.43 When evaluating a charge of fraudulent joinder, "[a] district court must resolve all contested issues of substantive fact . . . and . . . any uncertainties as to the current state of controlling substantive law in favor of the plaintiff."44 Moreover, "if there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court."45 Likewise, in accordance with rulings of MDL courts in this Circuit46 and others,47 when evaluating removal the Court will sever any "procedurally misjoined" plaintiff where the

40

Boyer v. Snap-On Tools Corp., 913 F.2d 108, 112 (3d Cir. 1990). Batoff, 977 F.2d at 852. Boyer, 913 F.2d at 111. Id. Id. Id. (quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11 th Cir. 1983)).

41

42

43

44

45

E.g., In re Diet Drugs Litig., 294 F. Supp. 2d at 673. The seminal case relating to "procedural m i s j o in d e r" of plaintiffs is the Eleventh Circuit case Tapscott v. M.S. Dealer Service Corp., 77 F.3d 1353, 1360 (11 th C i r . 1996) (overruled on other grounds). The Court of Appeals for the Third Circuit has not stated its view on w h e th e r and how district courts should recognize and treat the claimed egregious "misjoinder" of plaintiffs to defeat d i v e r s i t y in the removal context.
47

46

E.g., In re Fosamax Prods. Liability Litig., 2008 W L 2940560, at *4.

26

misjoinder in question is "so egregious as to constitute fraudulent misjoinder."48 Like the fraudulent joinder of a defendant with no real connection to an action, the egregious misjoinder of a plaintiff in order to prevent removal based on diversity jurisdiction has no proper justification and should not be permitted.49 The Court agrees with several courts which have ruled that the egregiousness evaluation is analogous to that which a court uses to assess the purported fraudulent joinder of a defendant.50 The inquiry thus looks to whether, based on the pleadings, there is an outright absence of reasonable basis in fact or colorable ground supporting the joinder. The legal point of reference for the evaluation is the applicable state's joinder law.51 B. Whether Federal Question Jurisdiction Supports The Contested Removals 1. Arguments of the Parties Defendant GSK expressly asserts that federal question jurisdiction exists over sixteen of the seventeen cases presently at issue.52 Relying on the decision of the United States Supreme Court in Grable & Sons Metal Products, Inc. v. Darue Eng'g & Mfg., GSK contends that state law claims stated by Plaintiffs in the relevant cases give rise to federal question jurisdiction because they "necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved

48

Tapscott, 77 F.3d at 1360. See In re Diet Drugs Litig., 294 F. Supp. 2d at 673-74.

49

See In re Fosamax Prods. Liability Litig., 2008 W L 2940560, at *4. See also Fed. Ins. Co. v. Tyco Int'l L td ., 422 F. Supp. 2d 357, 378 (S.D.N.Y. 2006); Conk v. Richards & O'Neil, LLP, 77 F. Supp. 2d 956, 971 (S.D. I n d . 1999).
51

50

See In re Diet Drugs Litig., 294 F. Supp. 2d at 673. GSK did not assert federal question jurisdiction in support of the removal of the Mick case out of New

52

Y o r k state.

27

balance of federal and state judicial responsibilities."53 GSK does not identify precisely which claims it believes meet this standard from among the dozens stated by Plaintiffs in the instant cases. Instead it takes a more categorical approach in arguing that Plaintiffs' claims satisfy Grable in two different ways. First, GSK argues that as a general matter Plaintiffs' claims against GSK and McKesson raise the type of "substantial issue" contemplated in Grable insofar as they rely, explicitly or otherwise,54 on alleged violations of the federal Food, Drug and Cosmetic Act (FDCA) and its implementing regulations. Second, GSK contends that counts actually or potentially involving failure to warn claims against McKesson raise the substantial federal issue "whether a plaintiff can recover against McKesson for negligent failure to warn where federal law clearly prohibits the distributor from altering the manufacturer's label."55 Further, GSK asserts that to open the federal courthouse to such claims would not disturb the proper balance of judicial responsibility between the federal and state judiciaries as determined by Congress. Plaintiffs respond that the Complaints in question do not raise substantial federal issues of the sort necessary to support federal question jurisdiction, and as such, they do not satisfy Grable. According to Plaintiffs, in Merrell Dow Pharmaceuticals, Inc. v. Thompson, the U.S. Supreme Court has effectively decided the question, ruling that state tort claims alleging,

53

545 U.S. 308, 314 (2005).

GSK accurately notes that, while many Plaintiffs' pleadings expressly refer to violations of the FDCA in s u p p o r t of allegations of a negligent failure to warn by Defendants, others do not. Def.'s Mem. Fed. Question Jur. at * 2 -* 3 . Nonetheless, GSK argues that because the FDCA must figure centrally into any proper assessment of the A v a n d ia warnings, it "is irrelevant" whether the Act is actually mentioned in a failure to warn claim. See id. The C o u r t will thus consider this argument as to all relevant Plaintiffs.
55

54

Def.'s Mem. Fed. Question Jur. at *3.

28

inter alia, violations of the FDCA by a drug manufacturer do not inherently involve substantial issues of federal law.56 Plaintiffs contend that if reliance on the FDCA in state law claims against drug manufacturers does not give rise to federal question jurisdiction, then by the same token neither should such reliance in state claims brought against drug distributors. 2. Merrell Dow, Grable and Application to the Relevant Cases In determining whether a case "arises under" federal law and thus supports federal question jurisdiction, a federal court refers to the plaintiff's well-pleaded complaint.57 The requisite federal issue "must be disclosed upon the face of the complaint."58 Federal question jurisdiction may not be based on a federal issue raised in a defense.59 While a complaint bringing a federal cause of action will always support federal question jurisdiction, such jurisdiction may alternatively lie from state law claims "which implicate significant federal issues."60 There is no "single, precise, all-embracing test" that courts may use to identify when "federal issues embedded in state-law claims" are sufficiently substantial or important to give rise to federal question jurisdiction.61 However, the Supreme Court has made clear that the category of cases involving state law claims of such jurisdictional import is "special," "small" and "slim."62 Identifying those state law claims that fall into this

56

Pls.' Mem. Fed. Question Jur. at *4 (citing Merrell Dow, 478 U.S. 804 (1986)). U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 389 (3d Cir. 2002). Id. (quoting Gully v. First Nat'l Bank in Meridian, 299 U.S. 109, 113 (1936)). Caterpillar, Inc. v. W illia m s , 482 U.S. 386, 392 (1987). Grable, 545 U.S. at 314. Id. Empire Healthchoice Assur. Inc. v. McVeigh, 547 U.S. 677, 700-01 (2006).

57

58

59

60

61

62

29

category is "recognized [as] `[t]he most difficult single problem in determining whether federal question jurisdiction exists.'"63 As noted above, the parties contest the applicability to the instant actions of two cases that illuminate this difficult area of law, Merrell Dow and Grable. Forwarded by GSK, Grable exemplifies that "slim" category of cases in which federal question jurisdiction springs from a state law claim that implicates substantial federal issues.64 Grable involved a quiet title action removed to federal court in which "the only . . . issue contested in the case" appeared to be whether the Internal Revenue Service had served notice on Grable of a land seizure in a manner conforming to the requirements of the Internal Revenue Code, 28 U.S.C. § 6335(a).65 The Supreme Court held that federal question jurisdiction existed despite the fact that the complaint included only a state law property cause of action. It existed because the state law claim turned on an interpretation of the federal tax code, the meaning of which "is an important issue of federal law that sensibly belongs in a federal court;" because the federal government had a "direct interest" in having the administrative action undertaken by the IRS evaluated in a federal forum; and because title claims implicating substantial issues of federal law are rare, such that the ruling risked minimal disturbance to the "congressionally approved balance of federal and state judicial responsibilities."66 GSK asserts that Grable models the sort of "contextual enquiry" the Court should undertake here to ascertain whether federal jurisdiction derives from Plaintiffs'

Pennsylvania v. Eli Lilly & Co., Inc., 511 F. Supp. 2d 576, 578-79 (E.D. Pa. 2007) (quoting 13B W r i g h t , e t al., FEDERAL PRACTICE AND PROCEDURE 17-18 (2d ed. 1984)).
64

63

Empire, 547 U.S. at 701. Grable, 545 U.S. at 310-15. Id. at 309, 314-15.

65

66

30

purely state law claims. Plaintiffs counter that Merrell Dow controls. Merrell Dow involved allegations of injury from a drug made by the defendant. The plaintiff's complaint stated several state law claims, including one alleging violation of FDCA labeling requirements.67 Defendant claimed plaintiff's reliance on FDCA standards rendered the case one "arising under" federal law, and removed the action on that basis.68 The Court affirmed a lower court ruling that the action must be remanded for lack of federal question jurisdiction. The Court's analysis of the substantiality of the federal issue implicated by plaintiff's state law claims involved "sensitive judgments about congressional intent, judicial power, and the federal system," made with "`an eye to practicality and necessity.'"69 The Court made clear that "the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction,"70 and also gave significant weight to the "necessary assumption" that Congress "did not intend a private federal remedy for violations of [the FDCA]."71 In its holding, the Court "conclude[d] that the congressional determination that there should be no federal remedy for the violation of [the FDCA] is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently `substantial' to confer federal-question jurisdiction."72
67

Merrell Dow, 478 U.S. at 805. Id. at 806. Id. at 811 (quoting Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 20 (1983)). Id. at 813. Id. at 811-12, 814. Id. at 814.

68

69

70

71

72

31

As a fellow judge of this District has aptly noted, "Grable does not disturb Merrell Dow," but clarifies that the earlier case should not be understood as establishing a bright line rule that federal issues embedded in state law claims may only be considered "substantial" where a private federal cause of action is available.73 It bears noting, however, that the Court in Grable took care to explain how "Merrell Dow's analysis . . . fits within the framework of examining the importance of having a federal forum for the issue, and the consistency of such a forum with Congress's intended division of labor between state and federal courts."74 Indeed, the Grable Court approved the earlier decision's reasoning that "a potentially enormous shift" of state tort cases into federal courts would result if federal jurisdiction were to spring from tort claims' reliance on "mislabeling" under the FDCA "and other statutory violations."75 Understandably, GSK seeks to minimize the relevance of Merrell Dow after Grable, and to persuade the Court that Grable permits ­ at least ­ a fresh look at what is in a preponderance of material respects the same question as to GSK as the one answered by the Supreme Court in Merrell Dow. That case instructs that an assertion of a violation of the FDCA as an element of a state tort claim is not a sufficiently substantial federal issue to confer federal question jurisdiction. That ruling governs the present question of whether such jurisdiction springs from assertions of FDCA violations by GSK embedded in Plaintiffs' state tort claims: it does not. Merrell Dow sheds perhaps less light on the jurisdictional import of Plaintiffs'
73 Allen, 2008 W L 2247067, at * 8 (quoting Grable, 545 U.S. at 316 ("Merrell Dow . . . is not to the c o n tr a r y." ) ) . 74

Grable, 545 U.S. at 319. Id.

75

32

claims of negligence through failure to warn against McKesson that, as GSK notes, implicate the scope of the FDCA. There is some basic appeal to Plaintiffs' argument that, as state law claims alleging violations of the FDCA are too insubstantial to give rise to federal question jurisdiction, so, too, are claims raising questions as to that statute's applicability or coverage. However, the Court will not base a ruling purely on this ground, but instead will apply to the question the more "sensitive judgments" regarding federalism and congressional intent that the Supreme Court has described. Through this analysis, the Court finds that the present federal issue is not so substantial as to confer federal question jurisdiction over the instant cases. As in Merrell Dow, and unlike the circumstance presented in Grable, the issue of McKesson's status under the FDCA is not essential, but subsidiary, to the state tort claims that potentially raise it.76 Further, California, New York or North Carolina courts are entirely capable of interpreting the FDCA and implementing regulations to determine whether, as GSK contends, a distributor such as McKesson is "clearly prohibited" from altering a drug's label or otherwise conveying warnings about a drug.77 Any abiding federalism concerns may be allayed by the fact that any such

As GSK has elected not to specify precisely which of Plaintiffs' claims implicate the present issue, and th e Court would not presume to limit or define the arguments of GSK's able counsel, the Court does not catalog e v e ry claim by every Plaintiff that may raise the issue, but simply notes that typical of the claims against McKesson a re those found in the Hefner Complaint, which are: (1) negligence; (2) negligent failure to adequately warn; (3) n e g l i g e n c e per se; (4) negligent misrepresentation; (5) breach of express warranty; (6) breach of implied warranty; ( 7 ) strict products liability ­ defective design; (8) strict products liability ­ manufacturing and design defect; (9) s tr ic t product liability ­ failure to adequately warn; (10) fraudulent misrepresentation; (11) violations of the [state] U n fa ir Trade Practices and Consumer Protection Law; (12) unjust enrichment; (13) wrongful death; (14) survival a c t i o n ; (15) loss of consortium; and (16) punitive damages. Cf. Merrell Dow, 478 U.S. 814 n.12 (citing Kravitz v. Homeowners W a rr a n ty Corp., 542 F. Supp. 317, 3 2 0 (E.D. Pa. 1982) ("I cannot identify any compelling reasons of federal judicial policy for embracing a case of this k in d as a federal question case. The essential Pennsylvania elements of plaintiffs' suit for rescission would be more a p p r o p r ia te ly dealt with by a Court of Common Pleas than by this court; and, with respect to the lesser-included is su e of federal law, Pennsylvania's courts are fully competent to interpret the Magnuson-Moss W a r r a n ty Act and the r e le v a n t F.T.C. regulations, subject to review by the United States Supreme Court.")).
77

76

33

determination would be subject to review by the United States Supreme Court. The Court also finds that a significant disruption of the congressionally determined balance between the federal and state judiciaries would be risked if federal jurisdiction could be based upon a question, embedded in a state tort claim, as to the scope or applicability of a related federal statute.78 For all these reasons, the Court rules that federal question jurisdiction does not lie over the instant cases. C. Whether Diversity Jurisdiction Supports The Contested Removals Because of the foregoing ruling, in any case where diversity jurisdiction is lacking or removal was procedurally improper pursuant to the legal framework set forth in Section II.A supra, remand will be appropriate. The Court thus proceeds to consider the application of this law to the instant cases. The cases are grouped according to state and reviewed again insofar as is necessary below. 1. The California Cases The Court reviews the California cases beginning with Bone, and then proceeding alphabetically through the remaining cases from that state. a. Bone, et al., 2:08-cv-01726 Bone was filed in California state court by eleven Plaintiffs, including one from California and one from Pennsylvania. Plaintiffs' claims against McKesson, including for negligence in the marketing and distribution of Avandia and strict product liability - failure to warn, are