United States District Court, W.D. Virginia, Charlottesville Division
Elizabeth K. Dillon United States District Judge
two cases, which are substantially similar to other cases
pending before this court, were both filed in state court and
removed by one group of defendants. Then, a supplemental
notice of removal was filed in each case by other defendants.
Considering both notices of removal jointly, each case has
been removed on the same jurisdictional bases: federal
question jurisdiction, diversity jurisdiction, and
jurisdiction under the Class Action Fairness Act (CAFA), 28
U.S.C. §§ 1332(d)(2) and 1453.
plaintiff in each case-a locality in the Commonwealth of
Virginia-asserts claims 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. The
plaintiffs allege 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.
before the court are three motions in each case: (1)
plaintiff's motion to remand (responding to the original
notice of removal); (2) plaintiff's supplemental motion
to remand (responding to the jurisdictional grounds asserted
in the supplemental notice of removal); and (3)
defendants' motion to stay. The motions to stay ask the
court to stay the cases and delay consideration of the remand
motions pending a decision by the Judicial Panel on
Multidistrict Litigation (JPML) on whether the cases will be
transferred to a pending multi-district litigation action,
In re: National Prescription Opiate Litigation, MDL
No. 2804 (the Opiate MDL).
cases are part of a series of opioid cases filed by
localities in the Western District of Virginia. Both are
currently subject to a conditional transfer order (CTO)
entered by the JPML on May 7, 2019. In re: National
Prescription Opiate Litig., MDL No. 2804, Dkt. No. 4759
(CTO-101) (docketed as Ex. 5 to Mem. Supp. Mot. for Stay,
Dkt. No. 16-5). Timely objection was made to the CTO, and
these matters are set for a September 26, 2019 hearing on the
oppositions of plaintiffs to transfer of their actions to the
United States District Court for the Northern District of
Ohio. (Id., Dkt. No. 5282.) If a final transfer is
ordered, it is likely that it will occur after that hearing.
opinion in the “first wave” of like cases, this
court addressed the same overarching issues that are raised
in these cases. City of Galax v. Purdue Pharma,
L.P., Civil Action No. 7:18-cv-00617, 2019 WL 653010
(W.D. Va. Feb. 14, 2019). As the court noted there and as the
parties agree, the existence of a CTO does not deprive this
court of authority to address the jurisdictional issues
raised by the motions to remand and supplemental motions 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.”). Nonetheless, for the same reasons set forth
in the court's prior memorandum opinion, the court
concludes that a stay of these actions is appropriate. In
particular, the court concludes that the issue of whether
there is diversity jurisdiction in the case is factually and
legally complicated and that the purposes underlying the stay
are served by granting one here. City of Galax,
Civil Action No. 7:18-cv-00617, 2019 WL 653010, at *3-*4.
Upon the likely transfer of these cases to the Opiate MDL,
the MDL court can address the remand motions.
identify several factual developments that they seem to
suggest should change the court's prior analysis. First,
plaintiffs note that the remand motions in the cases
transferred to the Opiate MDL (both by this court and by
other courts) still have not been addressed by that court and
remain pending, some of them for more than a year. Second,
plaintiffs point out that some of the defendants have made
public statements regarding the possibility of their filing
for bankruptcy. It appears that plaintiffs are contending
that these factors alter the calculus of the harms in that
any delay in consideration of plaintiffs' remand motions
will not be minimal and instead such delay will be harmful
and prejudicial to plaintiffs.
court has considered these additional circumstances, but they
do not alter the court's prior conclusion. Even assuming
that those facts increase the possible prejudice to
plaintiffs resulting from a stay, the court must assess those
facts in conjunction with the other relevant factors: the
length of the stay, the hardship to defendants if a stay were
denied, and, most importantly, whether the stay would promote
judicial economy by avoiding duplicative litigation. See
Walker v. New England Compounding Pharmacy Inc., No.
7:12-cv-564, 2013 WL 1871343, at *3 (W.D. Va. May 3, 2013)
(citation omitted). A consideration of all the factors leads
the court to conclude that staying these cases remains an
appropriate course of action for all the reasons set forth in
its prior order and in the exercise of its discretion.
also worth noting that, subsequent to the court's
decision in City of Galax, most judges presiding
over “second wave” cases in the Western and
Eastern Districts of Virginia have stayed the cases pending
the transfer decision rather than ruling on motions to
remand. E.g., City of Lexington v. Purdue
Pharma, L.P., No. 6:19-cv-00021 (W.D. Va. May 16, 2019);
Halifax Cnty. v. Purdue Pharma, L.P., No.
4:19-cv-00021 (W.D. Va. May 16, 2019); Roanoke Cnty. v.
Purdue Pharma, L.P., No. 7:19-cv-00271 (W.D. Va. May 16,
2019); Franklin Cnty. v. Purdue Pharma, L.P., No.
7:19-cv-00302 (W.D. Va. May 1, 2019); Alleghany Cnty. v.
Purdue Pharma, L.P., No. 7:19-cv-00275 (W.D. Va. May 1,
2019); Fauquier Cnty., Va. v. Purdue Pharma L.P.,
No. 1:19-cv-00364 (E.D. Va. Apr. 17, 2019); Bd. of
Supervisors of Prince William Cnty. v. Purdue Pharma,
L.P., No. 1:19-cv-00365 (E.D. Va. Apr. 18, 2019);
City of Chesapeake v. Purdue Pharma, L.P., No.
2:19-cv-00183 (E.D. Va. Apr. 24, 2019); Fairfax Cnty. v.
Purdue Pharma, L.P., No. 1:19-cv-00544 (E.D. Va. May 18,
2019); Louisa Cnty. v. Purdue Pharma, L.P.,
No. 3:19-cv-00027 (W.D. Va. May 24, 2019); Northumberland
Cnty. v. Purdue Pharma, L.P., No. 3:19-cv-246 (E.D. Va.
June 20, 2019); Prince George Cnty. v. Purdue Pharma,
L.P., No. 3:19-cv-458 (E.D. Va. June 21, 2019);
Greensville Cnty. v. Purdue Pharma, L.P., No.
3:19-cv-459 (E.D. Va. June 21, 2019); Loudoun Cnty. v.
Purdue Pharma, L.P., No. 1:19-cv-778 (E.D. Va. July 2,
2019); City of Emporia v. Purdue Pharma, L.P., No.
3:19-cv-513 (E.D. Va. July 16, 2019)). (See
also Ex. A to Mem. Supp. Mot. to Stay, Dkt. No. 16-16,
and Ex. A to Reply Mem. Supp. Mot. to Stay, Dkt. No. 26-1,
attaching all of the preceding cases.) Overall, then, many
similar Virginia cases raising the same jurisdictional issues
likely will be before the Opiate MDL. Accordingly, the factor
of judicial economy and efficiency supports a stay here,
perhaps even more strongly than when the court ruled in
City of Galax.
above reasons, it is hereby ORDERED that defendants'
motions to stay are GRANTED. These cases are STAYED
temporarily pending a decision by the JPML as to whether
those cases will be transferred to the Opiate MDL.
 The parties' briefing suggests
that these cases could be considered part of the “third
wave, ” but the parties do not ...