Barbara Moore v. McKesson Corporation et al

Filing 55

ORDER that defendants AstraZeneca Pharmaceuticals LP, AstraZeneca PLC and McKesson Corporation have until November 29, 2012 to file supplemental materials establishing the citizenship of plaintiff Barbara Moore. Proof of Diversity Citizenship due 11/29/2012. Signed by District Judge Barbara B. Crabb on 11/16/2012. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - BARBARA MOORE,
ORDER
Plaintiff,
12-cv-496-bbc
v.
McKESSON CORPORATION,
ASTRAZENECA PHARMACEUTICALS LP,
ASTRAZENECA PLC and DOES 1-100,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this product liability action, plaintiff Barbara Moore alleges that she was injured
as a result of ingesting the drug Nexium, which she alleges was manufactured by defendant
AstraZeneca Pharmaceuticals LP and AstraZeneca PLC and distributed by defendant
McKesson Corporation. This case was filed originally in California state court as a 92plaintiff lawsuit. On June 1, 2012, defendants removed the case to the District Court for
the Central District of California under 28 U.S.C. § 1441. Notice of Removal, dkt. #1. On
July 10, 2012, the district court granted defendants’ motion to sever and transfer certain
claims to various courts around the country. Dkt. #11. Plaintiff’s claim was severed and
transferred to this court, along with a pending motion to dismiss under California law. Dkt.
#10. After the case was transferred, defendants filed a supplemental motion to dismiss,
raising arguments under Wisconsin law. Dkt. #44. That motion became moot when

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plaintiff filed an amended complaint on October 25, 2012, within the deadline set by the
pretrial conference order. Dkt. #46. (Defendants filed a motion to dismiss plaintiff’s
amended complaint that is being briefed by the parties.)
Now before the court is plaintiff’s motion to stay this case pending a decision from
the Judicial Panel on Multidistrict Litigation on her motion to transfer this case to the
Central District of California under 28 U.S.C. § 1407. Dkt. #47. Unfortunately, I cannot
decide the motion to stay because it is not clear whether the court has subject matter
jurisdiction over this case.
“The first question in every case is whether the court has jurisdiction.” Avila v.
Pappas, 591 F.3d 552, 553 (7th Cir. 2010). Courts have an independent obligation to
insure that jurisdiction exists. Booker-El v. Superintendent, Indiana State Prison, 668 F.3d
896, 899 (7th Cir. 2012). Because defendants removed the case to federal court, they have
the burden of establishing that the court has jurisdiction. Carroll v. Stryker Corp., 658 F.3d
675, 680 (7th Cir. 2011). In their notice of removal, defendants say that jurisdiction is
present under 28 U.S.C. § 1332, but I cannot make that determination from defendants’
allegations in the notice. To establish jurisdiction under § 1332, a party must show that the
existence of complete diversity between plaintiffs and defendants and an amount in
controversy that exceeds $75,000. In defendants’ notice of removal, they provide adequate
allegations about the amount in controversy.

Additionally, they provide sufficient

allegations about their own citizenship for purposes of § 1332. They allege that:
•

Defendant AstraZeneca Pharmaceuticals LP is a Delaware limited
partnership with the following partners: (1) AstraZeneca AB, a Swedish

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corporation with its principal place of business in Sweden; (2) Zeneca
Inc., a Delaware corporation with its principal place of business in
Delaware; (3) Astra USA Inc., a Delaware corporation with its principal
place of business in Delaware; and (4) Astra U.S. Holdings
Corporation, a Delaware corporation with its principal place of
business in Delaware.
•

Defendant AstraZeneca PLC is a public company incorporated under
the laws of England and Wales, with its principal place of business in
London, England.

•

Defendant McKesson Corporation is a Delaware corporation with its
principal place of business in California.

Thus, for jurisdictional purposes, AstraZeneca Pharmaceuticals LP is a citizen of Delaware
and Sweden, AstraZeneca PLC is a citizen of England and Wales and McKesson Corporation
is a citizen of Delaware and California.
The defect in defendants’ notice of removal is with respect to plaintiff’s citizenship.
At the time of removal, 92 plaintiffs were involved in this case. In their notice of removal,
defendants alleged that “[a]s per the allegations of the Complaint, the plaintiffs are, and at
the time of the filing of this action were, citizens of one of the following States: California,
Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin and Wyoming.”
Notice of Removal, dkt. #1, at ¶ 2. However, a review of the allegations in the complaint
does not back up defendants’ allegations about the plaintiffs’ “citizenship.” It contains
allegations about the “residency” of the various plaintiffs. E.g., Cpt. at 11 (“Plaintiff,
Barbara Moore, who resides in the City of Odanah, State of Wisconsin, took Nexium and
was injured as a result.”). As the Court of Appeals for the Seventh Circuit has explained,
“residence” and “citizenship” are not the same thing for purposes of determining diversity

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jurisdiction. Craig v. Ontario Corp., 543 F.3d 872, 876 (7th Cir. 2008) (“They claim to be
‘residents’ of Arizona—an inadequate jurisdictional claim to begin with, as we repeatedly
have reminded litigants and district judges.”); Meyerson v. Harrah’s East Chicago Casino,
299 F .3d 616, 617 (7th Cir. 2002) (“[R]esidence and citizenship are not synonyms and it
is the latter that matters for purposes of diversity jurisdiction.”); McMahon v. Bunn-O-Matic
Corp., 150 F.3d 651, 653 (7th Cir. 1998) (“An allegation of residence is inadequate.”). To
establish citizenship, defendants must show where plaintiff is domiciled, that is, where she
intends to live for the foreseeable future. Dakuras v. Edwards, 312 F.3d 256, 258 (7th Cir.
2002). Defendants’ notice of removal is deficient in this regard.
This discussion of citizenship leads to the question whether it will be sufficient for
defendants to show that plaintiff Moore’s citizenship is diverse from defendants’, or whether
defendants must show that each person who was a plaintiff in this case before it was severed
and transferred to various courts had citizenship diverse from each defendant. The general
rule is that “[w]hen a case is initially filed in state court and then removed to federal court
. . . we analyze our jurisdiction at the time of removal, as that is when the case first appears
in federal court.” Huric v. Aurora Loan Services, 588 F.3d 420, 427 (7th Cir. 2009). I have
found no authority stating that the court should analyze jurisdiction in a case removed from
state court by considering only the citizenship of parties remaining in the case after it has
been severed and transferred. Further, the court of appeals has suggested that it would be
inappropriate for a federal court to sever plaintiffs from a case in order to make the case
removable in diversity. Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 410 (7th Cir. 2000)

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(“Neither § 1332 nor any case of which we are aware provides that defendants may discard
plaintiffs in order to make controversies removable.”). Thus, if jurisdiction must be analyzed
“at the time of removal,” defendants must show that all plaintiffs who were parties to this
case at the time of removal had citizenship completely diverse from all defendants.
The original complaint contains information about the state of residency of each
original plaintiff, and it may be that defendants could show that each plaintiff is a citizen
of the state in which that plaintiff resided at the time the case was removed to federal court.
However, even assuming defendants could make such a showing, there would still be
questions about whether there was complete diversity at the time of removal. In its notice
of removal, defendants conceded that defendant McKesson Corporation, a citizen of
California and Delaware, was not diverse from at least one on the plaintiffs, a California
resident. Defendants contended that McKesson’s citizenship should be disregarded because
the company was “fraudulently joined” and there was no reasonable chance that plaintiffs
could prevail against McKesson. Notice of Removal, dkt. #1, ¶¶ 5-9. After the District
Court for the Central District of California severed and transferred this case, it considered
whether it had subject matter jurisdiction over the claims of the California plaintiff. In an
order entered July 23, 2012, the district court concluded that it did not have subject matter
jurisdiction because the parties were not completely diverse. Velasco v. McKesson Corp.,
Case No. CV 12-4809, dkt. #53, 2012 U.S. Dist. LEXIS 102080 (C.D. Cal. July 23, 2012).
The court rejected defendants’ arguments about fraudulent joinder and concluded that
McKesson was not joined simply to destroy diversity.

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Accordingly, the district court

concluded that McKesson’s presence in the lawsuit destroyed diversity and it remanded the
case to state court. Id.
Under the district court’s reasoning, this case should never have been removed to
federal court because the parties were not completely diverse. If it is true that this case was
removed improperly, it seems questionable that this court would have jurisdiction over a
portion of the case that was severed off and transferred here.
Because the case law is unclear on these issues and neither party has had an
opportunity to address them, I will give both sides a chance to respond to the issues raised
in this order. In particular, both sides should address (1) whether this court must focus on
the state of the case at the time of removal when analyzing jurisdiction and (2) whether the
order by the Central District of California dismissing the original case for lack of subject
matter jurisdiction affects this court’s jurisdictional analysis. Because the standard for
assessing jurisdiction is unclear, defendants do not need to file supplemental materials
establishing the citizenship of each original plaintiff at this time. However, defendants
should file documentation of plaintiff Moore’s citizenship (an affidavit or stipulation will
suffice). After reviewing the parties’ submissions, I will determine whether defendants must
file additional evidence to establish jurisdiction.

ORDER
IT IS ORDERED that defendants AstraZeneca Pharmaceuticals LP, AstraZeneca PLC
and McKesson Corporation have until November 29, 2012 to file supplemental materials

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establishing the citizenship of plaintiff Barbara Moore and to address the questions raised
in this order. If defendants do not respond by November 29, I will dismiss this case for lack
of subject matter jurisdiction. If defendants do respond, plaintiff may have until December
6, 2012 to file a response brief.
Entered this 16th day of November, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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