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City of Galax v. Purdue Pharma, L.P.

United States District Court, W.D. Virginia, Roanoke Division

February 14, 2019

CITY OF GALAX, VIRGINIA, Plaintiff,
v.
PURDUE PHARMA, L.P., Defendant.

          MEMORANDUM OPINION AND ORDER

          Elizabeth K. Dillon United States District Judge.

         This opinion is being entered in this case, and the eleven cases on Appendix A hereto, in order to address nearly identical motions in all twelve cases.[1] Each of these substantially similar cases was filed in state court and removed by at least one defendant. Each involves claims by a single plaintiff-a locality in the Commonwealth of Virginia-against four groups of defendants: (1) manufacturers of various opioid pain medications; (2) distributors of those medications; (3) pharmacy benefit manager (PBM) defendants; and (4) Doe defendants. Each plaintiff alleges that some or all defendants misrepresented the safety and the addictive properties of prescription opioids and engaged in conduct that resulted in prescription opioids being over-distributed and over-prescribed, such as failing to report or halt suspicious orders and encouraging doctors to over-prescribe. All of the claims asserted in the complaints are couched as causes of action under state law, although the defendants who removed the cases or who join in removal (the Removing Defendants) argue that the claims involve federal questions sufficient to invoke this court's federal-question jurisdiction.

         Pending before the court are three motions in each case: (1) plaintiff's motion to remand; (2) plaintiff's motion to expedite, which seeks expedited treatment of the motion to remand; and (3) Removing Defendants' motion to stay, which asks the court to stay the case and delay consideration of the motion to remand pending a decision by the Judicial Panel on Multidistrict Litigation (JPML) on whether these cases will be transferred to a pending multi-district litigation action, In re: Prescription Opiate Litigation, MDL No. 2804 (the Opiate MDL). The motion to expedite has effectively been granted, in part, because the court implemented an expedited briefing schedule and held an early hearing; it will otherwise be denied as moot. The motions to remand and motions to stay are fully briefed and were argued before the court on January 17, 2018. Subsequently, a number of notices of “supplemental authority” have been submitted by the parties, informing the court of decisions on like motions in similar cases.

         For the reasons set forth herein, in all cases except the case brought by the City of Martinsville, City of Martinsville, Va. v. Purdue Pharma, L.P., No. 4:18-cv-72 (W.D. Va.), the court will grant the motions to stay. With regard to City of Martinsville, the court does not have jurisdiction over that case, and thus, the court will grant the motion to remand in that case only.

         I. BACKGROUND

         A. Complaint's Allegations

         According to plaintiff, it seeks injunctive relief and damages for the “costs it has incurred and continues to incur as a direct result of Defendants' purposeful scheme to facilitate and profit from improper opioid utilization.” (Pl.'s Mot. Remand 1, Dkt. No. 6.)[2] Plaintiff brings claims against some or all defendants for public nuisance, violation of the Virginia Consumer Protection Act, Virginia Code Annotated § 59.1-196, et seq., fraud, common law conspiracy, various forms of negligence, and unjust enrichment. Two of the negligence per se claims are based on alleged violations of the Virginia Drug Control Act and the federal Controlled Substances Act.

         B. Differences In Purported Jurisdictional Bases for Removal

         At the outset, there are some procedural differences between the cases that warrant an explanation. In the original notices of removal, the Removing Defendants asserted that removal was proper under the Class Action Fairness Act (CAFA), 28 U.S.C. §§ 1332(d)(2) and 1453, and under this court's federal-question jurisdiction, 28 U.S.C. § 1441(a). This was true in all of the cases except City of Martinsville, Va. v. Purdue Pharma, L.P., No. 4:18-cv-72. In that case, which is the only case in which defendants have been served, the Removing Defendants removed only on CAFA grounds. (City of Martinsville, No. 4:18-cv-72, Notice of Removal, Dkt. No. 1.)

         The court presumes that the decision to assert only CAFA as the basis for jurisdiction in the City of Martinsville case was prompted by the fact that defendant Mylan Pharmaceuticals Inc. (Mylan) opposes removal. Although removal under CAFA is permitted by any defendant without the consent of all defendants, 28 U.S.C. § 1453(b), removal based on federal-question jurisdiction or diversity jurisdiction is permitted only if “all defendants who have been properly joined and served . . . join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A) (emphasis added). In the other eleven cases, because the defendants (including Mylan) had not been served at the time of removal, Mylan's lack of consent did not preclude removal on the basis of federal-question jurisdiction.[3]

         In two of the twelve cases, Mylan is not a defendant. See Buchanan Cty., Va. v. Purdue Pharma, L.P., No. 1:18-cv-00047; Dickenson Cty., Va. v. Purdue Pharma, L.P., No. 2:18-cv-00048. In only those two cases, the Purdue defendants (Purdue Pharma, L.P., Purdue Pharma, Inc., and the Purdue Frederick Company, Inc.) have filed a supplemental notice of removal asserting that the non-diverse defendants are fraudulently joined and that, absent those defendants, the court has diversity jurisdiction. A very similar supplemental notice of removal has been filed by a separate defendant in the other nine cases (but not in the two in which Purdue filed or in City of Martinsville).

         The most important end result of the foregoing is that all three bases of jurisdiction are asserted in all of the cases except City of Martinsville, in which only CAFA jurisdiction is offered as a basis for jurisdiction.

         C. Opiate MDL Litigation and Removing Defendants' Motion to Stay

         The court next discusses the factual background underpinning the motions to stay. A number of similar cases have been filed in state and federal courts across the country. Many of those cases have been transferred to the Opiate MDL. A conditional transfer order (CTO) applicable to all twelve cases before this court was entered by the JPML on December 27, 2018. In re: Prescription Opiate Litig., MDL No. 2804, Dkt. No. 3321 (CTO-73) (also docketed here as Dkt. No. 22-1). Timely objection was made to the CTO on January 3, and the issue now has been briefed before the JPML. If a final transfer is ordered, it is likely that it will occur after the next meeting of the JPML, which is scheduled for March 28, 2019. Hearing Information, JPML, https://www.jpml.uscourts.gov/hearing-information (last visited Feb. 13, 2019).

         The existence of a CTO does not prevent this court from ruling on the motion to remand. See J.P.M.L. Rule of Procedure 2.1(d) (“The pendency of a conditional transfer order . . . before the Panel . . . does not affect or suspend orders and pretrial proceedings in any pending federal district court action and does not limit the pretrial jurisdiction of that court.”) If and when a final transfer order is issued, however, this court will have no authority to address the motions to remand. The Removing Defendants' motions to stay ask the court to stay a decision on the pending motions to remand until after a final transfer order is issued. Especially because all parties seem to believe it is likely that the cases will get transferred absent any action by this court, the motions to stay effectively request that this court allow the MDL court to rule on the motions for remand.

         II. DISCUSSION

         A. Motions to Stay

         The Removing Defendants urge the court apply the “general rule” that motions to stay in this circumstance are generally granted and simply stay these cases. (Mem. Supp. Mot. Stay 8, Dkt. No. 22 (quoting Robinson v. DePuy Orthopaedics, Inc., No. 3:12-cv-00003, 2012 WL 831650, at *2 (W.D. Va. Mar. 6, 2012)).) Unlike the Removing Defendants, the court does not view the statement in Robinson as an default rule that precludes or discourages consideration of the merits of a remand motion in the face of a CTO.

         Instead, the court concludes that the better approach is one in which the court first gives “preliminary scrutiny to the merits of the motion to remand.” Walker v. New England Compounding Pharmacy Inc., No. 7:12-cv-564, 2013 WL 1871343, at *3 (W.D. Va. May 3, 2013) (quoting Meyers v. Bayer A.G., 143 F.Supp.2d 1044 (E.D. Wis. 2001)). If that preliminary assessment suggests improper removal, the court should complete its analysis and remand the case, if appropriate. Id. at *2 (citation omitted). If, however, the jurisdictional question appears “factually or legally difficult” and similar jurisdictional questions are likely to be raised in other cases in the MDL, then a stay may well be preferable, but the court nonetheless looks to the factors underlying a motion to stay. See id.

         Here, with regard to all of the cases except City of Martinsville, there are three potential bases asserted for removal. The court has given preliminary consideration to the jurisdictional issues and concludes that the question of whether diversity jurisdiction exists here, which involves issues of fraudulent joinder and improper joinder, is factually or legally complicated.[4] It is likewise clearly ...


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