1. Case3:12-cv-05945-RS Document28 Filed03/25/13 Page1 of 71234567IN THE UNITED STATES DISTRICT COURT8FOR THE NORTHERN DISTRICT OF CALIFORNIA9SAN FRANCISCO DIVISION 10United States District CourtCAROLE REICHEL, et al., No. 12-05945 RS 11 For the Northern District of California Plaintiff, ORDER GRANTING MOTION TO 12 REMAND v. 13 14 MCKESSON CORPORATION, et al., 15 Defendants. 16 ____________________________________/ 17 18 19 I.INTRODUCTION 20 This is one of many cases currently pending in various state and federal courts alleging 21 harms to consumers from proxyphene. Defendants removed these lawsuits on the grounds of 22 fraudulent joinder and misjoinder, and some of the cases were transferred by the MDL panel to 23 the Eastern District of Kentucky. Plaintiffs in the transferred cases filed motions to remand in 24 the MDL Court, which ordered that all cases be remanded to the California state courts in which 25 they were originally filed. On October 23, 2012 counsel for plaintiffs filed a Coordination 26 Petition under California Code of Civil Procedure 404, requesting that all cases be consolidated 27 before [o]ne judge hearing all of the actions for all purposes in a selected site or sites [to] 28 NO. CV 12-05945 RSORDER GRANTING MOTION TO REMAND

2. Case3:12-cv-05945-RS Document28 Filed03/25/13 Page2 of 71 promote the ends of justice.2This particular case was filed on November 16, 2012 in the Superior Court of San3 Francisco County. It is included in the Coordination Petition. Defendant Lilly removed this4 action to this Court on November 20, 2012 premised on the theory it constituted a Class Action5 Fairness Act of 2005 (CAFA) mass action for jurisdictional purposes or, in the alternative, that6 the Court has federal question and supplemental jurisdiction. On February 25, 2013, plaintiffs7 filed this motion to remand on the grounds that coordinated cases do not constitute a CAFA mass8 action and that their claims are not removable under federal question jurisdiction.9On January 29, 2013, this Court issued an Order remanding Posey et. al. v. McKesson 10 Corporation et. al., No C 12-05939 RS to the Superior Court of San Francisco County. InUnited States District Court 11 Posey, the plaintiffs, as here, allege personal injury resulting from ingestion of proxyphene pain For the Northern District of California 12 products, and the action was included in the Coordination Petition. In Posey, removing 13 defendants, as Lilly does here, asserted CAFA mass action jurisdiction as a basis for removal. 14 The Posey removing defendant has filed a Notice of Appeal of the remand order to the Ninth 15 Circuit. 16This matter is appropriate for adjudication without oral argument, and is submitted 17 accordingly pursuant to Civil Local Rule 7-1(b). For the following reasons, the motion to 18 remand is granted. 19 II.LEGAL STANDARD 20A defendant may remove a civil action from state court to federal court if original 21 jurisdiction would have existed at the time the complaint was filed. See 28 U.S.C. 1441(a). If 22 the case stated by the initial pleading was not removable, a defendant may remove within thirty 23 days of receipt of an amended pleading, motion, order, or other paper that renders the action 24 removable. See U.S.C. 1446 (b)(3). A case may not be removed on the basis of diversity 25 jurisdiction, however, more than 1 year after the commencement of the action, unless the 26 district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from 27 removing the action. See 28 U.S.C. 1446(c)(1). This one-year outside time bar for removal 28 NO. CV 12-05945 RSORDER GRANTING MOTION TO REMAND2 3. Case3:12-cv-05945-RS Document28 Filed03/25/13 Page3 of 71 does not apply to cases removed under CAFA. See 28 U.S.C. 1543(b).2Federal courts are vested with original jurisdiction of all civil actions arising under the3 Constitution, laws, or treaties of the United States. 28 U.S.C. 1331. To determine whether a4 claim or cause of action arises under federal law, the face of a well-pleaded complaint is5 considered. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983).6 Nevertheless, the United States Supreme Court recognizes that in certain cases federal question7 jurisdiction will lie over state-law claims that implicate significant federal issues. Grable &8 Sons Metal Prod. Inc. v. Darue Eng.g & Mfg., 545 U.S. 308, 312 (2005), rehg den. The9 exercise of jurisdiction in such cases reflects the commonsense notion that a federal court ought 10 to be able to hear claims recognized under state law that nevertheless turn on substantialUnited States District Court 11 questions of federal law. Id. To exercise jurisdiction, the state law claim must necessarily For the Northern District of California 12 raise a stated federal issue, actually disputed and substantial, and the federal forum must 13 entertain the question without disturbing any congressionally approved balance of federal and 14 state responsibilities. Id. at 314. A federal claim is substantial if federal issues are essential to 15 the claims or there is great federal interest in resolving the issue. Glanton v. Harrahs Entmt, 16 Inc., 297 F. Appx 685, 686 (9th Cir. 2008). A substantial federal question also exists where the 17 construction of a federal statute will be decisive. Potter v. Hughes, 546 F.3d 1051, 1065 (9th 18 Cir. 2008) (citing Grable, 545 U.S. at 315). 19Under CAFA, removal is proper in a mass action where (1) the amount in controversy 20 exceeds five million dollars; (2) there is minimal diversity, where at least one plaintiff is diverse 21 from one defendant; (3) the monetary claims of 100 or more plaintiffs are proposed to be tried 22 jointly on the grounds that the plaintiffs claims involve common questions of law or fact; and 23 (4) at least one plaintiffs claim exceeds $75,000. See 28 U.S.C. 1332(d). 24[R]emoval statutes are strictly construed against removal. Luther v. Countrywide 25 Homes Loans Servicing, LP, 5533 F.3d 1031, 1034 (9th Cir. 2008). Federal jurisdiction must 26 be rejected if there is any doubt as to the right of removal in the first instance, such that courts 27 must resolve all doubts as to removability in favor of remand. Gaus v. Miles, Inc., 980 F.2d 564, 28NO. CV 12-05945 RS ORDER GRANTING MOTION TO REMAND 3 4. Case3:12-cv-05945-RS Document28 Filed03/25/13 Page4 of 71 566 (9th Cir. 1992). The burden of establishing that federal jurisdiction exists is on the party2 seeking removal. See id. at 566-67.3III.DISCUSSION4A. Removal Under CAFA5Plaintiffs primarily argue that there is no mass action because they did not explicitly6 request a joint trial of 100 or more claims in their petition for coordination. Defendants argue the7 petition does fall within the CAFA statute, as it requests a coordination trial judge, and refers8 to inconsistent. . . judgments, suggesting an implicit request for a joint trial. As discussed in9 Posey, this argument in unpersuasive. CAFA specifies that claims consolidated or coordinated 10 solely for pretrial proceedings do not qualify as mass actions. 28 U.S.C. United States District Court 11 1332(d)(11)(B)(ii)(IV). The Ninth Circuit has refused to entertain the notion that Congress For the Northern District of California 12 intended to allow courts to override the considered legislative limitations on the mass action 13 concept. Tanoh v. Dow Chem. Co., 561 F.3d 945, 954 (9th Cir. 2009). Plaintiffs petition is 14 devoid of a specific request for a joint trial, rather focusing on the need for coordination to 15 reduce duplicative discovery, waste of judicial resources, and possible inconsistent judicial 16 rulings on legal issues. The petition will not be construed as a functional request for a joint 17 trial. See Rice v. McKesson Corp., 12-05949, 2013 WL 97738, *2 (N.D. Cal. Jan. 13, 2013). 18Defendants nevertheless argue the Seventh Circuit opinion in In re Abbott Lab., Inc., 698 19 F.3d 568 (7th Cir. 2012) should instead provide guidance in this case. In that case, as here, 20 plaintiffs proposed coordination for all purposes, and stated that [f]ailure to coordinate these 21 actions will result in the disadvantages of duplicate and inconsistent rulings, orders, or 22 judgments. Opp. Br. at 3. The Seventh Circuit held that the consolidation petition could be 23 reasonably construed as a proposal for a joint trial, thereby creating a removable mass action. 24 In re Abbott Lab., 689 F.3d at 573. This Court, however, has previously declined to adopt this 25 holding of the Seventh Circuit, choosing instead to follow the Ninth Circuits more rigid 26 approach in Tanoh. See, e.g. Posey v. McKesson Corp., C 12-05939 RS, 2013 WL 361168 (N.D. 27 Cal. Jan. 29, 2013); Freitas v. McKesson Corp., 12-5948 SC, 2013 WL 685200 (N.D. Cal. Feb. 28 NO. CV 12-05945 RSORDER GRANTING MOTION TO REMAND4 5. Case3:12-cv-05945-RS Document28 Filed03/25/13 Page5 of 71 25, 2013). Plaintiffs separate state court actions may, of course, become removable at [some]2 later point if plaintiffs seek to join the claims for trial. Tanoh, 561 F.3d at 956. Unless and until3 plaintiffs make such a request, these cases do not constitute a mass action and may not be4 removed under CAFA.5 B. Federal Question Jurisdiction6Defendants contend that plaintiffs claim is based on the generic drug defendants failure7 to perform a statutory duty created under federal law, and the complaint therefore raises8 substantial and disputed issues of federal law. They note the complaint invokes defendants9 alleged failure to comply with federal standards and requirements in support of all but one of 10 their twenty-two causes of action. Opp. Br. at 5. Plaintiffs contend, however, that federal law isUnited States District Court 11 only implicated as a response to a federal preemption affirmative defense, not because it forms For the Northern District of California 12 the basis for the underlying cause of action on the face of the complaint. Rather, plaintiffs say, 13 the complaint is based on the generic drug defendants breach of the state law duty to provide an 14 adequate warning. 15Defendants rely on Bowdrie v. Sun Pharmaceutaical. Indus. Ltd., 2012 WL 5465994 16 (E.D.N.Y. Nov. 9, 2012), in support of removal. In Bowdrie, plaintiffs pled several state law 17 causes of action. Id. at *1. In removing, defendants argued that plaintiffs allegations of, among 18 others, a violation of the federal duty of sameness subjected the complaint to federal subject 19 matter jurisdiction. In moving to remand, plaintiffs asserted that their use of the federal duty of 20 sameness as a standard in their state law causes of action was not sufficiently substantial to 21 confer jurisdiction. Id. at *3. The federal district court in New York concluded that removal 22 was proper, as the federal issue went beyond simply incorporating a federal standard into a state 23 law cause of action. Id. at *4. Defendants contend that, as in Bowdrie, the federal issues here 24 go beyond simply importing a standard from the FDCA, and that Merrell Dow 25 Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986) does not, therefore, foreclose the 26 possibility that plaintiffs state law claims raise substantial federal questions.1 Rather, they posit, 27 1 In Merrell Dow, the Supreme Court held that a violation of a federal statute for which Congress 28 has determined no private right of right of enforcement exists does not state a claim arisingNO. CV 12-05945 RS ORDER GRANTING MOTION TO REMAND 5 6. Case3:12-cv-05945-RS Document28 Filed03/25/13 Page6 of 71 plaintiffs claims cannot be resolved without addressing the scope of defendants duties under2 federal law. Unlike in Bowdrie, however, plaintiffs complaint refers to federal standards and3 requirements in a passing manner. Indeed, the federal standard at issue is never identified4 within the claims themselves. As a result, the import of the federal law to the determination of5 the state law claim is unclear.6Defendants further argue the federal questions raised are particularly significant in light7 of the Supreme Courts holding in Pliva, Inc. v. Mensing, 131 S.Ct. 2567; 2011 U.S. LEXIS8 4793 (2011) that federal law preempts claims based on alleged failure to warn about the risks of9 generic medications. Plaintiffs, on the other hand, contend reliance on Mensing is inappropriate, 10 as that case did not involve distributors, such as McKesson, but rather generic drugUnited States District Court 11 manufacturers. As federal law does not prohibit a distributor from complying with its duties For the Northern District of California 12 under state law, plaintiffs argue their state law claims cannot be preempted. As a preemption 13 defense does not appear on the face of the complaint, it need not be determined whether federal 14 law indeed preempts plaintiffs state law claims of a failure to provide an adequate warning. 15 This potential defense cannot provide grounds for removal. 16As removal statutes are strictly construed against removal, and the import of federal 17 law to the determination of the state law causes of action remains at best uncertain, removal is 18 not appropriate under federal question jurisdiction. Luther v. Countrywide Homes Loans 19 Servicing, LP, 5533 F.3d 1031, 1034 (9th Cir. 2008). 20 IV.CONCLUSION 21This case does not constitute a mass action under CAFA and is not removable on that 22 basis. Defendants have not met their burden to show that plaintiffs state law claims turn on a 23 substantial question of federal law present on the face of the complaint. Removal is therefore not 24 appropriate under federal question jurisdiction. This Court, therefore, lacks removal jurisdiction 25 26under the Constitution, laws, or treaties of the United States within the meaning of 28 U.S.C. 27 1331. Removal of the action against the manufacturer and distributor of a drug under the FDCAwas therefore improper. 478 U.S. 804. 28NO. CV 12-05945 RS ORDER GRANTING MOTION TO REMAND 6 7. Case3:12-cv-05945-RS Document28 Filed03/25/13 Page7 of 71 over this case, and it must be remanded to the Superior Court of California for the County of San2 Francisco.34IT IS SO ORDERED.56 Dated: 3/25/13 RICHARD SEEBORG7UNITED STATES DISTRICT JUDGE89 10United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28NO. CV 12-05945 RS ORDER GRANTING MOTION TO REMAND7