United States District Court, E.D. California
COUNTY OF KERN; and THE PEOPLE OF THE STATE OF CALIFORNIA, by and through Kern County Counsel Margo Raison Plaintiffs,
PURDUE PHARMA L.P.; PURDUE PHARMA INC.; THE PURDUE FREDERICK COMPANY; RICHARD S. SACKLER, an individual and as trustee for TRUST FOR THE BENEFIT OF MEMBERS OF THE RAYMOND SACKLER FAMILY; JONATHAN D. SACKLER, an individual and as trustee for TRUST FOR THE BENEFIT OF MEMBERS OF THE RAYMOND SACKLER FAMILY; MORTIMER D.A. SACKLER, an individual; KATHE A. SACKLER, an individual; IRENE SACKLER LEFCOURT, an individual; BEVERLY SACKLER, an individual and as trustee for TRUST FOR THE BENEFIT OF MEMBERS OF THE RAYMOND SACKLER FAMILY; THERESA SACKLER, an individual; DAVID A. SACKLER, an individual; CEPHALON, INC.; TEVA PHARMACEUTICAL INDUSTRIES, LTD.; TEVA PHARMACEUTICALS USA, INC.; JANSSEN PHARMACEUTICALS, INC.; JOHNSON & JOHNSON; ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS, INC.; JANSSEN PHARMACEUTICA, INC.; ENDO HEALTH SOLUTIONS INC.; ENDO PHARMACEUTICALS INC.; ACTAVIS PLC; WATSON PHARMACEUTICALS, INC.; WATSON LABORATORIES, INC.; ACTAVIS PHARMA, INC.; ACTAVIS LLC; ALLERGAN PLC; ALLERGAN, INC.; ALLERGAN USA, INC.; INSYS THERAPEUTICS, INC.; MALLINCKRODT, PLC; MALLINCKRODT, LLC; CARDINAL HEALTH, INC.; AMERISOURCEBERGEN CORPORATION; MCKESSON CORPORATION; ALLERGAN FINANCE, LLC and DOES 1 THROUGH 100, inclusive, Defendants.
MEMORANDUM DECISION AND ORDER ON PLAINTIFFS'
MOTION TO REMAND (ECF NO. 8) AND DEFENDANTS' MOTION TO
STAY (ECF NO. 19)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
case concerns claims brought by the County of Kern and the
people of the state of California, by and through Kern County
Counsel Margo Raison (collectively “Plaintiffs”)
against a number of Defendants involved in the manufacturing,
marketing, and distribution of opioids. Plaintiffs move to
remand this case, while Defendants move to stay the case
pending a decision on transfer to the opioid multidistrict
litigation (“MDL”) pending in the Northern
District of Ohio. See In re Nat'l Prescription Opiate
Litig., 1:17-MD-2804. For the reasons discussed below,
the Court GRANTS Plaintiffs' motion to remand and DENIES
Defendants' motion to stay as moot.
March 27, 2019, Plaintiffs filed this action in the Kern
County Superior Court. ECF No. 1-3. Plaintiffs alleged seven
causes of action: (1) public nuisance under Cal. Civ. Code
§§ 3479-3480; (2) common law fraud; (3) common law
negligence; (4) unjust enrichment; (5) civil conspiracy; (6)
false advertising in violation of Cal. Bus. & Prof. Code
§ 17500, et seq.; and (7) negligent failure to
warn. Id. Defendants removed to this Court on April
29, 2019 on the basis of federal question jurisdiction.
See ECF No. 1. On May 7, 2019, Plaintiffs moved for
remand. ECF No. 8. Defendants filed an opposition to remand,
and Plaintiffs filed a reply. ECF Nos. 11, 13. In the same
period Plaintiffs moved for remand, Defendants moved to stay
this action. ECF No. 10. Plaintiffs filed an opposition to
the stay and Defendants filed a reply. ECF Nos. 12, 16. Both
parties filed supplemental authority in support of their
respective motions. ECF Nos. 19, 21-22. Pursuant to Local
Rule 230(g), the Court determined that this matter was
suitable for decision on the papers and took it under
submission. ECF No. 15.
defendant may remove a civil case from state court to federal
court if the action presents either a federal question or the
action's parties are citizens of different states and the
amount in controversy is over $75, 000. 28 U.S.C.
§§ 1331, 1332, 1441. Subject-matter jurisdiction
(in the form of either federal question or diversity
jurisdiction) may be challenged at any time prior to final
judgment. Grupo Dataflux v. Atlas Global Group,
L.P., 541 U.S. 567, 571 (2004).
plaintiff is the master of their own complaint and has the
choice of pleading claims for relief under state or federal
law (or both). Caterpillar Inc. v. Williams, 482
U.S. 386, 398-99 (1987). In most cases, and in the absence of
diversity jurisdiction, “the plaintiff may, by
eschewing claims based on federal law, choose to have the
cause heard in state court.” Id. at 399.
“A state court action may only be removed to federal
court if that federal court could have exercised original
jurisdiction.” Sacks v. Dietrich, 663 F.3d
1065, 1068 (9th Cir. 2011) (citing 28 U.S.C. § 1441(a)).
Supreme Court has directed lower courts to exercise
“prudence and restraint” when assessing the
propriety of removal from state court because
“determinations about federal jurisdiction require
sensitive judgments about congressional intent, judicial
power, and the federal system.” Merrell Dow Pharm.
Inc. v. Thompson, 478 U.S. 804, 810 (1986). The Ninth
Circuit has added that we should “strictly construe the
general, [federal question] removal statute against removal
jurisdiction” and that “if a district court
determines at any time that less than a preponderance of
evidence supports the right of removal, it must remand . . .
.” See Hansen v. Grp. Health Coop., 902 F.3d
1051, 1056-57 (9th Cir. 2018)(citations and quotations
omitted); see also Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992) (finding that a Court should reject
removal “if there is any doubt as to the right of
removal in the first instance.”). The removing
defendant bears the burden of overcoming this “strong
presumption against [federal question] removal
jurisdiction.” Geographic Expeditions, Inc. v.
Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107
(9th Cir. 2010) (citation omitted).
question jurisdiction only exists in “cases in which a
well-pleaded complaint establishes either that federal law
creates the cause of action or that the plaintiff's right
to relief necessarily depends on resolution of a substantial
question of federal law.” Franchise Tax Bd. v.
Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1,
27-28 (1983). Where state law creates the cause of action,
federal question jurisdiction may also lie if “it
appears that some substantial, disputed question of federal
law is a necessary element of one of the well-pleaded state
claims.” Id. at 13. Federal question
jurisdiction over state-law claims will lie if a federal
issue is “(1) necessarily raised, (2) actually
disputed, (3) substantial, and (4) capable of resolution in
federal court without disturbing the federal-state balance
approved by Congress.” Gunn v. Minton, 568
U.S. 251, 258 (2013); see also see Grable & Sons
Metal Prods., Inc. v. Darue Eng'g & Mfg., 545
U.S. 308, 312-15 (2005). When one factor is lacking, federal
question jurisdiction does not exist. See Gunn, 568
U.S. at 258; Hornish v. King County, 899 F.3d 680,
688 (9th Cir. 2018).
central argument against remand is Plaintiffs' claims
present a federal question under the Controlled Substances
Act, 21 U.S.C. §§ 801, et seq., because
any duty Defendants allegedly breached solely stems from that
Act. Plaintiffs argue that their claims do not raise a
federal question under Gunn because, among other
reasons, they can establish their claims without resorting to
federal law based on their allegations regarding independent
California common law and statutory duties, and that any
questions of federal law are not substantial.
filed as supplemental authority a recent order from the
Central District of California remanding a “virtually
identical” case,  and both Plaintiffs' motion and the
Central District's order cite numerous examples of other
district courts remanding similar opioid cases due to a lack
of federal question jurisdiction. See Order, Civil
Minutes and Statement of Decision, City of El Monte, et
al. v. Perdue Pharma L.P., et al., No.
2:19-cv-03588-JFW-PLA (C.D. Cal. June 18, 2019) (ECF No. 22,
Exs. 1-2); ECF No. 19 at 3; ECF No. 8 at 2-3 (collecting
cases remanding on the basis of a lack of federal question
jurisdiction in opioid cases). On the other hand, Defendants
submitted a recent order from the Northern District of
California that stayed a number of other “virtually
identical” cases pending a decision on MDL transfer,
and cites other district courts ordering stays in opioid
cases. See Order, County of Alameda, California,
et al. v. Perdue Pharma L.P. et al., No. 19-cv-02307-JST
(N.D. Cal. June 10, 2019) (ECF No. 19-1); ECF No. 11 at 23,
n. 4 (collecting cases ordering stays pending MDL transfer).
Court finds the Central District's approach to be the
correct one, and the Court adopts and incorporates by
reference the City of El Monte opinion and analysis
therein. In short, Plaintiffs do not plead any federal causes
of action on the face of their complaint. Their claims do not
necessarily raise a federal issue because the claims'
validity does not depend on questions of federal law. The
references to federal requirements and agency action appear
to be provided as background information. And even if federal
issues are raised, they are not “necessary”
because Plaintiffs' claim can be established
independently by reference to violations of California
statutory and common law. See Nevada v. Bank of Am.
Corp., 672 F.3d 661, 675 (9th Cir. 2012) (“When a
claim can be supported by alternative and independent
theories-one of which is a state law theory and one of which
is a federal law theory- federal question jurisdiction does
not attach because federal law is not a necessary element of
the claim.”) (quoting Rains v. Criterion Sys.,
Inc., 80 F.3d 339, 346 (9th Cir. 1996)). As City of
El Monte found, the remaining Gunn factors are
also not satisfied, but regardless, if one Gunn