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Celeste v. Merck, Sharp & Dohme Corp.

United States District Court, S.D. California

June 17, 2014

DIANE M. CELESTE, individually and as Special Administrator for the Estate of Frederick Celeste Plaintiff,
v.
MERCK, SHARP & Dohme CORP., et al., Defendants.

ORDER: (1) GRANTING MOTION TO SUPPLEMENT, (Doc. No. 65); (2) GRANTING MOTION TO REMAND, (Doc. No. 39); and (3) DENYING MOTIONS TO DISMISS AS MOOT, (Doc. Nos. 47; 50).

ANTHONY J. BATTAGLIA, District Judge.

Presently before the Court is Plaintiff Danitta Rinder's ("Plaintiff") motion to remand, (Doc. No. 39), and Defendants Wolters Kluwer United States, Inc. ("WKUS") and Wolters Kluwer Health, Inc. ("WK Health") (collectively, WK Defendants") separately filed motions to dismiss, (Doc. Nos. 47, 50). Defendants H.D Smith Whole-sale Drug Co. ("HD Smith") and Smith Medical Partners LLC ("Smith Medical") (collectively, "Smith Defendants") filed an opposition to Plaintiff's motion to remand on March 19, 2014, (Doc. No. 46), which was followed by Defendant Merck Sharp & Dohme Corp.'s ("Merck") opposition on March 19, 2014, (Doc. No. 53). Defendants WKUS and WK Health filed a notice of joinder in Merck's opposition to the motion to remand on March 19, 2014. (Doc. Nos. 51, 52.)

The Court heard oral arguments on the motion to remand on June 13, 2014. After consideration of the parties arguments in support and opposition of the motion, the Court GRANTS Plaintiff's motion to remand for the following reasons.

I. BACKGROUND

On March 29, 2013, three separate plaintiffs from three different states (Massachusetts, Illinois, and New Jersey) commenced this products liability action in Illinois state court against Merck, WKUS, WK Health, HD Smith, and Smith Medical. (Doc. No. 6, Ex. 2 at 1-2.) On May 3, 2013, Merck removed the action to the Northern District of Illinois, arguing that the named plaintiffs and the Illinois Defendants (WKUS, HD Smith, and Smith Medical) had been fraudulently joined. (Doc. No. 4, Ex. 18.) On May 8, 2013, the district court remanded the action for a determination of whether the plaintiffs had been fraudulently joined, but did not rule on the potential misjoinder of Defendants. ( Id., Ex. 19 at 7:14-16.) Following remand, Merck moved to sever the plaintiffs' misjoined claims. On January 30, 2013, the state court granted Merck's motion to sever and dismissed the non-Illinois plaintiffs on the basis of forum non convenies, leaving Danitta Rinder, as special administrator for the estate of Gregg Rinder ("Decedent"), the sole named Plaintiff in the instant action. (Id., Ex. 2.) On January 31, 2014, Merck filed a notice of removal.[1] (Doc. No. 1.) The case was thereafter transferred to this Court pursuant to the JPML transfer order on February 13, 2014. (Doc. No. 29.)

The First Amended Complaint ("FAC") alleges the following causes of action: (1) strict liability-failure to warn; (2) strict liability-design defect; (3) negligence; (4) breach of implied warranty of merchantability; (5) breach of express warranty; (6) wrongful death; and (7) survival. (Doc. No. 6, Ex. 1.) Merck and the Smith Defendants are named in all counts, and the WK Defendants are named in counts three (negligence), six (wrongful death), and seven (survival). ( Id. ) The FAC alleges that Steven Eienstein M.D., of North Shore Medical Group in Northbrook, Illinois, prescribed Januvia to Decedent between May 19, 2008 and January 19, 2010. ( Id. at ¶ 4.) During this time, Decedent's prescription was filled at a Jewel Osco pharmacy in Palestine, Illinois. (Doc. No. 6-3 at 2.) Decedent was diagnosed with pancreatic cancer on or about March 28, 2010, and succumbed to the disease on May 21, 2010. (Doc. No. 6, Ex. 1 ¶ 6.)

The citizenship of the parties is undisputed. Both Plaintiff and Decedent resided in Illinois at all relevant times; Merck is a New Jersey corporation with its principal place of business in New Jersey; HD Smith is a Delaware corporation with its principal place of business in Illinois; Smith Medical is a Delaware limited liability company with its principal place of business in Illinois; WK Health is a Delaware corporation with its principal place of business in Pennsylvania; and WKUS is a New York corporation with its principal place of business in Illinois. (Doc. No. 4, Ex. 1 at ¶¶ 3, 14, 22, 108; Doc. No. 4, Exs. 20, 21, 22.)

With regard to each Defendant, Plaintiff alleges that Merck manufactured Januvia, that HD Smith and its wholly owned subsidiary Smith Medical distributed the Januvia ingested by Decedent (or within the chain of distribution), and that WK Health and WKUS created, published, and distributed patient education monographs ("PEMs") regarding Januvia to Decedent's pharmacy, in addition to providing information regarding Januvia to Decedent's physicians.[2] ( Id. at ¶¶ 14, 18, 21, 22, 24; Doc. No. 39 at 6.) Plaintiff further alleges that HD Smith markets Januvia through publication of a monthly magazine known as HealthWise Magazine, and that this publication enables HD Smith's manufacturing partners to place product and wellness information into the hands of consumers. (Doc. No. 4, Ex. 1 at ¶ 20.)

Plaintiff now seeks to remand the case to Illinois State Court on the basis that Decedent and Defendants WKUS, HD Smith, and Smith Medical (collectively, the "Illinois Defendants") are each Illinois citizens, therefore destroying diversity jurisdiction - the only basis for subject matter jurisdiction in the case. Plaintiff also contends the case must be remanded because Defendants' removal was procedurally defective in that it violated the forum defendant rule and the voluntary-involuntary rule.

II. LEGAL STANDARD

A. Motion to Remand

The right to remove a case to federal court is entirely a creature of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal statute, 28 U.S.C. § 1441, allows defendants to remove an action when a case originally filed in state court presents a federal question, or is between citizens of different states and involves an amount in controversy that exceeds $75, 000. See 28 U.S.C. §§ 1441(a) and (b); 28 U.S.C. §§ 1331, 1332(a).

"[J]urisdiction in a diversity case is determined at the time of removal, " Am. Dental Indus., Inc. v. EAX Worldwide, Inc., 228 F.Supp.2d 1155, 1157 (D. Or. 2002), and only state court actions that could originally have been filed in federal court can be removed, 28 U.S.C. § 1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988); see also St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) ("The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction... Events occurring subsequent to the institution of suit which reduce the amount recoverable below the statutory limit do not oust jurisdiction")

The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction, " and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988). "The strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citing Nishimoto v. ...


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