Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mecklenburg County v. Purdue Pharma L.P.

United States District Court, E.D. Virginia, Richmond Division

July 12, 2019

MECKLENBURG COUNTY, VIRGINIA Plaintiff,
v.
PURDUE PHARMA, L.P., et al., Defendants.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge.

         This matter is before the Court on the PLAINTIFF'S MOTION TO REMAND AND INCORPORATED MEMORANDUM OF LAW (ECF No. 8); PLAINTIFF'S SUPPLEMENTAL MOTION TO REMAND AND INCORPORATED MEMORANDUM OF LAW (ECF No. 9); and MOVING DEFENDANTS' MOTION FOR TEMPORARY STAY OF PROCEEDINGS PENDING LIKELY TRANSFER TO MULTIDISTRICT LITIGATION (ECF No. 10) . The Court has reviewed the supporting, opposing, and reply memoranda. For the reasons stated below, PLAINTIFF'S MOTION TO REMAND AND INCORPORATED MEMORANDUM OF LAW (ECF No. 8) and PLAINTIFF'S SUPPLEMENTAL MOTION TO REMAND AND INCORPORATED MEMORANDUM OF LAW (ECF No. 9) will be granted, and MOVING DEFENDANTS' MOTION FOR TEMPORARY STAY OF PROCEEDINGS PENDING LIKELY TRANSFER TO MULTIDISTRICT LITIGATION (ECF No. 10) will be denied.

         BACKGROUND

         A. Procedural Background

         Plaintiff Mecklenburg County filed this action against the defendants in the Circuit Court of Mecklenburg County, Virginia. Mecklenburg County groups the defendants into the following categories: (1) the "Manufacturer Defendants," who are alleged to have directly caused a public health crisis by failing to adhere to FDA regulations and by failing to implement measures to prevent the filing of suspicious orders; (2) the "Distributor Defendants," who purchased opioids from the Manufacturer Defendants and allegedly failed to effectively monitor and report suspicious orders of prescription opioids or to implement measures to prevent the filing of invalid prescriptions; (3) the "Pharmacy Benefit Manager Defendants" (a.k.a. the "PBM Defendants"), who established formularies to reimburse pharmaceutical companies thereby perpetuating the opioid epidemic; and (4) the "Doe Defendants," who were sued under a fictitious name for participating in the activities that caused the opioid epidemic and for helping the other defendants. See generally Compl. (ECF No. 1-1) . In general, the Complaint alleges that the defendants, singularly and collectively, helped cause the opioid epidemic that has resulted in economic, social, and emotional damage to "virtually every community in the United States," all while benefitting themselves economically by manufacturing and selling the opioids while knowing about their addictive properties, distributing them to points of delivery for patients, and prescribing them through pharmacy plan design and formulary management. Id. ¶¶ 1-5.

         In the 135-page complaint, most of the allegations are against defendants who do not reside in Virginia. However, there are three Distributor Defendants that are Virginia residents: McKesson Medical-Surgical Inc.; General Injectables & Vaccines, Inc.; and Insource, Inc. The Complaint alleges that the Distributor Defendants (as well as the manufacturing defendants) ignored Virginia law and the Controlled Substances Act (the "CSA"), thereby causing many people to become addicted to drugs. Id. ¶¶ 285-93. The Complaint also alleges that the Distributor Defendants did not maintain effective controls against opioid diversion and did not follow DEA guidance. Id. ¶¶ 309-33. The causes of action against the Distributor Defendants are the following. First, Count I alleges that all the defendants created a public nuisance, and, against the Distributor Defendants specifically, the Complaint states that they failed to implement effective controls or operate system to report suspicious orders and that they enabled "pill mills" to operate in the market. Id. ¶¶ 437-38. Second, Count II alleges that all the defendants created a common law public nuisance and contains the same factual allegations as Count I against the Distributor Defendants. Id. ¶¶ 467-68. Third, Count V alleges that all the defendants participated in a common law civil conspiracy, and, against the Distributor Defendants specifically, Mecklenburg County alleges that they violated Virginia law and the CSA by fraudulently making false or misleading statements, by falsely marketing opioids as safe for treatment of chronic pain, by evading controls on opioid diversion, and by failing to design and operate a system for suspicious orders. Id. ¶¶ 509, 512-14. Fourth, Count VII alleges negligence per se against the Distributor Defendants, stating that they failed to disclose suspicious orders and filled suspicious transactions. Id. ¶¶ 527-34. Fifth, Count VIII alleges negligence against all the defendants, and, against the Distributor Defendants specifically, Mecklenburg County alleges that they failed in their duty to not create a foreseeable risk of harm to others. Id. ¶¶ 535-42. Sixth, Count IX alleges gross negligence against all the defendants, and Mecklenburg County alleges that the defendants failed to take action to prevent unnecessary, nonmedical, or criminal use of opioids. Id. ¶¶ 543-47. Seventh, Count X alleges willful and wanton negligence against all the defendants, and it contains the same allegations as Count IX. Id. ¶¶ 548-53. Finally, Count XI alleges that all the defendants were unjustly enriched by knowingly profiting from opioid purchases that they knew were causing harm. Id. ¶¶ 554-57.

         Defendant Actavis LLC ("Actavis") filed DEFENDANT ACTAVIS LLC'S NOTICE OF REMOVAL (ECF No. 1) based on the contention that there is diversity jurisdiction in this case. Defendants Optum, Inc., OptumRx, Inc., and UnitedHealth Group Incorporated (collectively, "Optum") submitted a SUPPLEMENTAL NOTICE OF REMOVAL (ECF No. 7), arguing that there is federal question jurisdiction in this case. In response to these notices of removal, Mecklenburg County filed PLAINTIFF'S MOTION TO REMAND AND INCORPORATED MEMORANDUM OF LAW (ECF No. 8) and PLAINTIFF'S SUPPLEMENTAL MOTION TO REMAND AND INCORPORATED MEMORANDUM OF LAW (ECF No. 9) . Further, Optum filed MOVING DEFENDANTS' MOTION FOR TEMPORARY STAY OF PROCEEDINGS PENDING LIKELY TRANSFER TO MULTIDISTRICT LITIGATION (ECF No. 10), asking this Court to delay its decision on whether to remand the case pending the final decision of the Judicial Panel on Multidistrict Litigation (the "JPML") on transfer of this action to the Multidistrict Litigation pending in the Northern District of Ohio, In Re: Nat'l Prescription Opiate Litig., No. 1:17-md- 02804 (the "Opiate MDL").

         B. This Court's And Other District Courts' Responses To Similar Motions

         The Court previously addressed the same arguments made for removal in Dinwiddie County, Virginia v. Purdue Pharma, L.P., No. 3:19-cv-242, 2019 WL 2518130 (E.D. Va. June 18, 2019). There, the Court remanded the case to the Circuit Court of Dinwiddie County, finding the defendants' arguments for federal jurisdiction meritless. The Dinwiddie County opinion noted that other judges, in this district and across the country, have decided whether to stay the proceedings in their cases so that the JPML could decide whether to transfer the cases to the Opiate MDL. Id. at *2. Some district courts have decided to stay their proceedings, stating in relatively short orders that the judicial cooperation and consistency were their preeminent concerns. See, e.g., Fauquier County v. Mallinckrodt, LLC, No. 1:19-cv-364, ECF No. 33 (E.D. Va. April 17, 2019); Bd. of Supervisors of Prince William Cty. v. Purdue Pharma, L.P., No. 1:19-cv-365, ECF No. 27 (E.D. Va. April 18, 2019); City of Chesapeake v. Purdue Pharma, L.P., No. 2:19-cv-183, ECF No. 26 (E.D. Va. April 24, 2019); Fairfax County v. Purdue Pharma, L.P., No. 1:19-cv-544, ECF No. 21 (E.D. Va. May 16, 2019); Franklin County v. Purdue Pharma, L.P., No. 7:19-cv-302, ECF No. 33 (W.D. Va. May 1, 2019); Alleghany County v. Purdue Pharma, L.P., No. 7:19-cv-275, ECF No. 31 (W.D. Va. May 1, 2019); Roanoke County v. Purdue Pharma, L.P., No. 7:19-cv-271, ECF No. 34 (W.D. Va. May 16, 2019); City of Roanoke v. Purdue Pharma, L.P., No. 7:19-cv-272, ECF No. 38 (W.D. Va. May 16, 2019); City of Bristol v. Purdue Pharma, L.P., No. 1:19-cv-11, ECF No. 35 (W.D. Va. May 16, 2019); City of Salem v. Purdue Pharma, L.P., No. 7:19-cv-273, ECF No. 31 (W.D. Va. May 16, 2019); Halifax County v. Purdue Pharma, L.P., No. 4:19-cv-21, ECF No. 28 (W.D. Va. May 16, 2019); Rockbridge v. Purdue Pharma, L.P., No. 6:19-cv-25, ECF No. 30 (W.D. Va. May 16, 2019); City of Lexington v. Purdue Pharma, L.P., No. 6:19-cv-21, ECF No. 39 (W.D. Va. May 16, 2019). And, it noted that other district courts have remanded the cases to state court, finding that the cases should be remanded immediately because there clearly was a lack of federal jurisdiction. See Cty. Bd. of Arlington Cty. v. Purdue Pharma, L.P., No. 1:19-cv-402, ECF No. 63 (E.D. Va. May 6, 2019); Dunaway v. Purdue Pharma, L.P., No. 2:19-cv-38, ECF No. 59 (M.D. Tenn. May 22, 2019); see also, e.g., Mayor and City Council of Baltimore v. Purdue Pharma, L.P, No. 18-800, 2018 WL 1963816, at *3 (D. Md. April 25, 2018) (collecting cases in which federal courts have granted motions to remand before the JPML could transfer the cases to the MDL court). The Court has not been notified of any decision in these similar cases in which a court has found that there was federal jurisdiction.

         DISCUSSION

         A. The JPML And The Court's Jurisdiction Over This Motion

         On June 28, 2019, the JPML issued Conditional Transfer Order 101 rCTO-101"). See Conditional Transfer Order 101 (ECF No. 11-5) . However, this Court still has jurisdiction to consider motions to remand while the JPML decides whether to enter the transfer order. See Moore v. Wyeth-Ayerst Labs., 236 F.Supp.2d 509, 511 (D. Md. 2002) ("The Judicial Panel on Multidistrict Litigation has held that a district court judge has the authority to either wait for a transfer order without ruling on a motion to remand, or to rule on the motion before a transfer order has been issued." (citing In re Asbestos Prods. Liab. Litig., 170 F.Supp.2d 1348, 1349 n.l (JPML 2001)). Indeed, the Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation expressly provide that a conditional transfer order "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." R. Pro. JPML 2.1(d). Thus, the Court can properly entertain the motion to remand.

         B. Removal And Federal Court Jurisdiction

         "Federal courts are courts of limited jurisdiction and the threshold requirement in every federal case is jurisdiction." Holt v. Food Lion Grocery Store of Chester, No. 3:18-cv-503, 2019 WL 112788, at *2 (E.D. Va. Jan. 4, 2019) (quoting Lee v. Citimortgage, Inc., 739 F.Supp.2d 940, 942 (E.D. Va. 2010)) . Typically, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). Where a defendant seeks to remove a case from state to federal court, "it is the defendant who carries the burden of alleging in his notice of removal and, if challenged, demonstrating the court's jurisdiction over the matter." Strawnv. AT & T Mobility, LLC, 530 F.3d 293, 296 (4th Cir. 2008). The removing defendant's burden of demonstrating federal jurisdiction "is no greater than is required to establish federal jurisdiction as alleged in a complaint." Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008). That said, it is well-settled that "removal jurisdiction is not a favored construction," and, therefore, the Court must "construe it strictly in light of the federalism concerns ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.