The opinion of the court was delivered by: The Honorable Philip S. Gutierrez, United States District Judge
Present: The Honorable Philip S. Gutierrez, United States District Judge
Wendy Hernandez Not Reported Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Not Present Not Present
Proceedings: (In Chambers) : Order REMANDING action
Before the Court is Defendants Teva Pharmaceuticals U.S.A., Inc. ("Teva") and Xanodyne Pharmaceuticals, Inc.'s ("Xanodyne" and, collectively, "Defendants") response to the Court's Order to Show Cause ("OSC") why the action should not be remanded for lack of subject matter jurisdiction. The Court finds the matters appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the arguments in response to the Court's OSC, the Court REMANDS the action to the Superior Court of Los Angeles County.
The present action is one of 26 cases currently pending before this Court that allege injuries relating to ingestion of the drug ingredient propoxyphene, which is found in the brand drugs Darvocet and Darvon as well as generic brand pain relievers ("Propoxyphene Actions"). There are also many other cases relating to Darvocet, Darvon, and propoxyphene pending in a multidistrict litigation ("MDL") in the Eastern District of Kentucky. See In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 780 F. Supp. 2d 1379 (E.D. Ky. Aug. 16, 2011). The Propoxyphene Actions were brought against various entities that allegedly manufactured, marketed, distributed, and/or sold products containing propoxyphene that were defectively designed and failed to contain adequate warnings.
On May 21, 2012, several Plaintiffs ("Plaintiffs" or "Rentz Plaintiffs") filed the present action in the Superior Court of Los Angeles County. See Dkt. # 1. The action named several Defendants allegedly responsible for the manufacturing and/or distribution of products containing propoxyphene, including Teva and Xanodyne, among others. Id. This action has twice been removed to this Court. On May 21, 2012, several defendants removed the action to this Court on the basis of diversity jurisdiction. See Rentz, et al. v. McKesson Corp., et al., No. 12-cv-4399-PSG-E ("Rentz I"), Dkt. # 1. After reviewing the Notice of Removal, the Court found that there was not complete diversity between the parties, so diversity jurisdiction was improper. Accordingly, on August 7, 2012, the Court remanded the case to state court. See
On October 23, 2012, after the Court remanded the case, the Rentz Plaintiffs and plaintiffs in six of the other California Propoxyphene Actions filed a Petition for Coordination ("Petition") in state court. See Not., Ex. B. Defendants contend that the Petition makes the action a "mass action" that is removable pursuant to the Class Action Fairness Act ("CAFA"),
28 U.S.C. § 1332(d)(11). Accordingly, on November 20, 2012, Defendants again removed the action to this Court. See Dkt. # 1. In the Notice of Removal, Defendants relied on In re Abbott Labs., Inc., 698 F.3d 568 (7th Cir. 2012), a recent Seventh Circuit case in which the court held that a motion to consolidate in Illinois state court was sufficient to confer federal mass action jurisdiction. Not. 4:20-7:21. However, the Court remained unpersuaded that subject matter jurisdiction was proper. Specifically, the Court was not persuaded that the action was properly removable as a mass action. As such, on December 18, 2012, the Court issued an OSC in which it directed Defendants to explain why the Court should follow the Seventh Circuit decision in
. See Dkt. # 23. On January 14, 2013, Defendants submitted separate responses to the Court's OSC. See Dkts. # 23-24. Though submitted separately, the responses contain substantially identical arguments in support of removal. See id.
After reviewing the arguments in both responses, the Court concludes that Defendants have failed to meet their burden of establishing that removal is ...