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Terry Freitas, et al v. Mckesson Corporation

February 13, 2013




The instant matter is a pharmaceutical product liability 19 action. Defendants Brenn Distribution, Inc. and Brenn 20 Manufacturing, Inc. ("Defendants") removed the action to this Court 21 from California Superior Court, and plaintiffs Terry Freitas and 22 other plaintiffs joining in her complaint (collectively 23 "Plaintiffs") now move to remand the action back to state court. 24

ECF No. 25-1 ("Mot."). For the reasons explained below, 25 Plaintiffs' motion to remand is GRANTED. 26


This action is one of many related cases now pending in 3 California state and federal courts. See Mot. at 1-4. It involves 4 alleged harms to consumers from pharmaceutical products containing 5 propoxyphene, including the drug Darvocet. Id. Plaintiffs filed a 6 complaint in state court on October 31, 2011. Id. at 2.

On 7 December 6, 2011, Defendants removed to federal court on the basis 8 of diversity jurisdiction, arguing fraudulent joinder and 9 misjoinder. Id. This case, among others, was then transferred by 10 the Judicial Panel on Multidistrict Litigation to MDL No. 2226, pending in the Eastern District of Kentucky. Id. Judge Reeves, 12 the judge presiding over that MDL, remanded this action and others 13 back to California Superior Court on July 17, 2012, rejecting 14 Defendants' arguments that certain parties had been fraudulently 15 joined to prevent diversity. Freitas v. McKesson Corp., No. 2-12-16 50-DCR, 2012 U.S. Dist. LEXIS 101955, at *34 (E.D. Ky. July 17, 17 2012). 18

Once they were back in California Superior Court, Plaintiffs 19 filed a Petition for Coordination with the California Judicial 20 Counsel on October 23, 2012, asking to coordinate this action with 21 the numerous, related multi-plaintiff pharmaceutical actions also 22 pending in California state court. Mot. at 2. Plaintiffs' 23 Petition stated that seven actions concerned "the same defective 24 Darvocet Product, the same or substantially similar causes of 25 action, the same or substantially similar issues of law, [and] the 26 same or substantially similar issue," such that "[o]ne judge 27 hearing all of the actions for all purposes in a selected site or 28 sites will promote the ends of justice," and "[f]ailure to coordinate these actions will result in the disadvantages of 2 duplicate and inconsistent rulings, orders, or judgments." Mot. 3 Ex. 8 ("Petition") at 2, 8, 10 (emphasis added). 4

On November 20, 2012, Defendants filed a notice of removal in 5 this Court, claiming that the Court has subject matter jurisdiction 6 over the action (1) as a mass action under the Class Action 7 Fairness Act ("CAFA"), 28 U.S.C. § 1332(d), or, alternatively, (2) 8 under the diversity jurisdiction statute, 28 U.S.C. § 1332(a). ECF 9 No. 1 ("Notice of Removal"). Plaintiffs now move to remand for 10 lack of subject matter jurisdiction. Defendants oppose, arguing primarily that Plaintiffs' request to coordinate the cases "for all 12 purposes" rendered removal proper under CAFA, because, as 13 Defendants claim, such language implies coordination through trial, 14 thereby rendering this action a "mass action" under CAFA. ECF No. 15 29 ("Opp'n"). 16

This Court has already remanded two related propoxyphene 17 liability cases to California Superior Court on the grounds that 18 removal under CAFA was improper. See Posey v. McKesson Corp., No. 19 C 12-05939 RS, 2013 WL 361168, at *5 (N.D. Cal. Jan 29, 2013); Rice 20 v. McKesson Corp., No. C 12-05949 WHA, 2013 WL 97738, at *3 (N.D. 21 Cal. Jan. 7, 2013). Defendants have appealed to the Ninth Circuit 22 in both of those cases, arguing that even though the Ninth Circuit 23 has a rule in place for matters like this one, Tanoh v. Dow Chem. 24 Co., 561 F.3d 945, 954-954 (9th Cir. 2009), courts within the Ninth 25 Circuit should adopt the Seventh Circuit's reasoning in a similar 26 case, In re Abbott Labs, Inc., 698 F.3d 568, 573 (7th Cir. 2012). 27

See Pet. for Permission to Appeal at 8, Posey v. Covidien, Inc., 28 No. C 13-80019 (9th Cir. Feb. 7, 2013) ECF No. 1-2 ("This Court should grant review to determine whether to adopt the Seventh 2 Circuit's holding in Abbott . . . ."). 3 4



A defendant may remove a civil action from state court to 7 federal court if original jurisdiction would have existed at the 8 time the complaint was filed. 28 U.S.C. § 1441(a). If the case 9 stated by the initial pleading was not removable, a defendant may 10 remove within thirty days of receipt of an amended pleading, motion, order, or other paper rendering the action removable. 28 12 U.S.C. § 1446(b)(2). 13

Removal under CAFA is proper for "mass action" suits if (1) 14 the amount in controversy exceeds five million dollars; (2) there 15 is minimal diversity, meaning that at least one plaintiff is 16 diverse from one defendant; (3) the monetary relief claims of 100 17 or more plaintiffs are proposed to be tried jointly, on the grounds 18 that the plaintiffs' claims involve common questions of law or 19 fact; and (4) at least one plaintiff's ...

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