The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO STAY; GRANTING MOTION TO REMAND; DENYING REQUEST FOR COSTS AND FEES
Defendants Bayer Corporation, Bayer HealthCare LLC, and Bayer HealthCare Pharmaceuticals Inc. (collectively "Bayer") move to stay this proceeding pending transfer by the Judicial Panel on Multidistrict Litigation ("JPMDL") to MDL 2100. Plaintiff Brandy Maness opposes the motion to stay and separately moves to remand this action to state court and requests an award of fees and costs associated with the filing of the motion to remand this action. Bayer and McKesson Corporation ("McKesson") oppose the motion to remand. Defendants Berlex Laboratories International, Bayer Schering Pharma AG, Bayer AG, and Schering AG have not filed a response to the motions. For the reasons set forth below, the court denies the motion to stay, grants the motion to remand, and denies the motion for an award of fees and costs.
On December 24, 2009, Plaintiff commenced this personal injury action in the Superior Court of California, County of San Diego. (Notice of Removal ¶1). The complaint alleges ten state law causes of action arising from the central allegation that Plaintiff's injuries were caused by her use of Yasmin, a prescription medication manufactured by Bayer and distributed by McKesson in California. Plaintiff alleges that use of the oral contraceptive Yaz/Yasmin caused, among other things, pancreatitis and gallbladder disease.*fn1
On April 7, 2010, Bayer removed the action to this court based upon diversity jurisdiction under 28 U.S.C. §1332. In order to allege diversity jurisdiction, Bayer argues that McKesson, a California citizen with its principal place of business in California, was fraudulently joined as a Defendant to prevent the court from exercising removal jurisdiction over the action. (Notice of Removal ¶15). Defendants Berlex Laboratories International Inc., Bayer Schering Pharma AG, Bayer AG and Schering AG have yet to be served, id. ¶7, and therefore have not taken any position with respect to removal. The only other served defendant, McKesson, joins in the Notice of Removal. Id. ¶6.
Allegations concerning the marketing, sales practices, and products liability issues are subject to both federal and state consolidated proceedings. On October 1, 2009, the JPMDL ordered the transfer of the Yasmin related actions pending in federal court to the In re Yasmin and YAZ (Drospirenone) Marketing, Sales Practices and Products Liability Litigation, MDL NO. 2100, pending in the United States District Court for the Southern District of Illinois. On March 16, 2010 the Bayer Defendants filed with the JPMDL a notice identifying this action as a tag-along action and on April 1, 2010 this court received a conditional transfer order to the JPMDL panel. Plaintiff opposes transfer to the JPMDL. Until the receipt of the final transfer order, this court retains jurisdiction to decide all issues.
On January 11, 2010 the "Yaz, Yasmin and Ocella Contraceptive Cases" were coordinated by the state of California JCCP and assigned to Judge Carolyn Kuhl, Los Angles County Superior Court.
According to Plaintiff, coordinated state judicial efforts have also commenced in New Jersey and Pennsylvania.
Bayer moves to stay this action pending transfer to the MDL and Plaintiff moves to remand the action to state court where it will be coordinated with "hundreds of other actions already coordinated in the State of California." (Motion to Remand at pp. 1:21 - 2:1).
Federal courts have a "virtually unflagging obligation" to exercise the jurisdiction conferred upon them. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976); Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). Notwithstanding, a stay is an extraordinary remedy to be granted sparingly where the applicant makes a strong showing of success on the merits and demonstrates an irreparable injury. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The court also considers injuries to other interested parties and the public interest. Id.
In so many words, Bayer argues that it is in the interests of wise judicial administration to stay this action. Bayer argues that a stay will advance the purposes of the MDL, further judicial economy, eliminate the potential for conflicting pretrial rulings, "ensure that this action proceeds in an orderly, coordinated fashion under the direction of the MDL Court and will facilitate the MDL's efficient, uniform resolution of pretrial issues common to all coordinated Yasmin/YAZ cases." (Motion to Stay at p.3:18-20). Bayer also cites several district court cases in the Northern and Central Districts of California that have stayed similar actions under nearly identical circumstances pending transfer to the MDL panel. While appealing, Bayer's arguments give short shrift to the court's subject matter jurisdiction.
Bayer seeks to stay this action prior to the court deciding the threshold issue of the court's subject matter jurisdiction. Federal courts are courts of limited jurisdiction. "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868)). Accordingly, federal courts are under a continuing duty to confirm their jurisdictional power and are even "obliged ...