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Jason T. Gutowski v. Mckesson Corp. and Eli Lilly & Co

February 25, 2013


The opinion of the court was delivered by: Claudia Wilken United States District Judge


United States District Court For the Northern District of California

Plaintiff Jason Gutowski moves to remand this action to state court. Defendant Eli Lilly & Company opposes the motion. The Court takes the matter under submission on the papers and grants 13 the motion. 14


This is one of more than forty cases currently pending in California state and federal courts alleging harm from the 17 ingestion of pharmaceutical drugs containing propoxyphene. On 18

October 23, 2012, the plaintiffs in one of those pending actions 19 filed a petition with the California Judicial Council seeking to 20 coordinate all current and future cases raising similar claims. 21

See Cal. Civ. Proc. Code § 404. The petition requested the 22 appointment of a "coordination motion judge" for the seven 23 propoxyphene cases that had been filed in California Superior 24 Court at that time "as well as other such cases that may be filed 25 before this Petition is decided." Docket No. 1, Petition at 7. 26

As of this date, the Judicial Council has yet to decide the 27 coordination petition. 28

On November 19, 2012, roughly one month after the 2 coordination petition was filed, Plaintiff brought this action in 3 Marin County Superior Court. His complaint asserts that his 4 mother suffered fatal "cardiac injuries" in 2003 after taking a 5 propoxyphene-based drug manufactured by Defendant. Docket No. 1, 6 Compl. at 2-3. He is the only plaintiff named in this lawsuit and 7 has not asserted any class claims. 8

Defendant removed this action on November 29, 2012. Docket No. 1, Notice at 1-9. In its notice of removal, it asserted that, 10 because this case is likely to be consolidated with the other California propoxyphene cases, it is removable as part of a "mass action" under the Class Action Fairness Act (CAFA), 28 U.S.C. 13 § 1332(d)(11). Plaintiff filed a motion to remand on January 24, 14 2013. 15


A defendant may remove a civil action filed in state court to 17 federal district court so long as the district court could have 18 exercised original jurisdiction over the matter. 28 U.S.C. 19 § 1441(a). Title 28 U.S.C. § 1447(c) provides that if, at any 20 time before judgment, it appears that the district court lacks 21 subject matter jurisdiction over a case previously removed from 22 state court, the case must be remanded. On a motion to remand, 23 the scope of the removal statute must be strictly construed. Gaus 24 v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "The 'strong 25 presumption' against removal jurisdiction means that the defendant 26 always has the burden of establishing that removal is proper." 27

Id.; see also Wash. State v. Chimei Innolux Corp., 659 F.3d 842, 28 847 (9th Cir. 2011) ("The burden of establishing removal jurisdiction, even in CAFA cases, lies with the defendant seeking 2 removal.")). Courts should resolve doubts as to removability in 3 favor of remanding the case to state court. Gaus, 980 F.2d at 4 566. 5


CAFA gives federal courts jurisdiction over any "mass action" 7 in which (1) the amount in controversy exceeds five million 8 dollars; (2) at least one plaintiff is diverse from one defendant; 9 and (3) at least one plaintiff's claim exceeds seventy-five 10 thousand dollars. 28 U.S.C. § 1332(d); Abrego v. Dow Chem. Co., 443 F.3d 676, 689 (9th Cir. 2006). At issue here is the scope of 12 the term "mass action." 13 Under CAFA, "mass action" is defined as "any civil action

. . . in which monetary relief claims of 100 or more persons are 15 proposed to be tried jointly on the ground that the plaintiffs' 16 claims involve common questions of law or fact." 28 U.S.C. 17

§ 1332(d)(11). Defendant contends that the present case satisfies 18 this definition because it is likely to be coordinated with the 19 other propoxyphene lawsuits currently pending in California state 20 courts. Once that coordination occurs, Defendant argues, the 21 total number of plaintiffs in all of the propoxyphene cases will 22 exceed one hundred and thus satisfy CAFA's "mass action" 23 definition. 24

Defendant's argument fails for two reasons. First, the October 2012 coordination petition does not propose a joint trial 26 and, thus, cannot satisfy CAFA's "mass action" definition. 27

Second, even if it did propose a joint trial, removal is still 28 premature because the petition remains pending and Plaintiff has not attempted to coordinate this case with the other propoxyphene 2 actions. 3

I. Mass Actions Must Be "Tried Jointly" Under CAFA 4

Two courts in this district have expressly rejected

Defendant's argument that the October 2012 coordination petition 6 renders all of the pending propoxyphene cases part of a single 7 "mass action." Posey v. McKesson Corp., 2013 WL 361168, at *2-*3 8 (N.D. Cal.), appeal docketed [no case number assigned] (9th Cir. 9 Feb. 7, 2013); Rice v. McKesson Corp., 2013 WL 97738, at *2 (N.D. 10 Cal.), appeal docketed No. 13-80007 (9th Cir. Jan. 28, 2013); see 11 also L.B.F.R. v. Eli Lilly & Co., Case No. 12-10025-ODW, Docket No. 8, Remand Order, at 3 (C.D. Cal. Dec. 6, 2012) ("Despite 13 Defendants' [sic] obtuse reasoning concerning a pending state 14 court motion for the coordination of cases, this case does not yet 15 involve 100 or more plaintiffs."). Both courts in this district 16 reasoned that, because the "'petition for coordination . . . is 17 bereft of any explicit proposal that the claims of these 18 plaintiffs be tried jointly,'" as required by CAFA, the cases do 19 not constitute a "mass action." Posey, 2013 WL 361168, at *2 20 (quoting Rice, 2013 WL 97738, at *2) (emphasis in original). 21

Despite these rulings, Defendant contends that the 22 coordination petition does, in fact, propose a joint trial. It 23 relies on In re Abbott Labs., Inc., 698 F.3d 568, 571-72 (7th Cir. 24 2012), for support. There, the Seventh Circuit reversed a 25 district court's order remanding a case to state court because the 26 plaintiffs had moved to consolidate their case with ten similar 27 actions involving several hundred plaintiffs. Id. The court held 28 that the motion to consolidate proposed a joint trial, thus making it removable under CAFA. Id. The court highlighted language in 2 the motion requesting consolidation "through trial" and "not 3 solely for pretrial proceedings." Id. at 571. Defendant here 4 contends that the petition to coordinate the propoxyphene cases 5 similarly proposes a joint trial because it seeks coordination 6 "for all purposes." Docket No. 1, Petition at 8. 7

Defendant's reliance on Abbott Labs is unavailing. The 8 decision is not binding on this Court and, even if it was, it is 9 inapposite. As the courts in Rice and Posey each noted, the 10 October 2012 coordination petition does not propose or even refer 11 to a joint trial. It focuses, instead, on the potential benefits of coordination during pretrial proceedings, noting that 13 coordination would avoid "duplicative discovery" and protect 14 "judicial resources." Docket No. 1, Petition at 6. Furthermore, 15 the petition's use of the phrase "for all purposes" appears simply 16 to reflect the language of California's coordination statute; it 17 is not a proposal for joint trial. See Cal. Civ. Proc. Code 18 § 404.1 ("Coordination of civil actions sharing a common question 19 of fact or law is appropriate if one judge hearing all of the 20 actions for all purposes in a selected site or sites will promote 21 the ends of justice . . . ." (emphasis added)). Abbott Labs thus 22 offers little guidance here. 23

In contrast, the Ninth Circuit's decision in Tanoh v. Dow

Chemical Co., 561 F.3d 945, 954 (9th Cir. 2009), does provide some 25 direction. In Tanoh, the court considered "whether seven 26 individual state court actions, each with fewer than one hundred 27 plaintiffs, should be treated as one 'mass action' eligible for 28 removal to federal court under the Class Action Fairness Act."

Id. at 945. The court held that the seven actions were not 2 removable under CAFA, reasoning that the statute's "mass action" 3 provision was ...

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