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Bailey v. Rite Aid Corp.

United States District Court, N.D. California

October 25, 2019

Thomas Bailey, Plaintiff,
v.
Rite Aid Corporation, Defendant.

          ORDER DENYING MOTION TO CERTIFY THE QUESTION OF FEDERAL PREEMPTION TO THE COURT OF APPEALS UNDER 28 U.S.C. § 1292(B) RE: DKT. NO. 61

          Yvonne Gonzalez Rogers United States District Court Judge

         Plaintiff Thomas Bailey brings this putative class action against defendant Rite Aid Corporation (“Rite Aid”) asserting eight causes of action arising out of defendant's sale and marketing of its over-the-counter rapid release acetaminophen gelcaps. (See Dkt. No. 15 (“FAC”).) On September 9, 2019, the Court granted in part and denied in part defendant's motion to dismiss the FAC. (Dkt. No. 60 (“MTD Order”).) Therein, the Court rejected defendant's preemption argument and denied its motion on that basis. (Id. at 5-9.) Now before the Court is defendant's motion for an order to certify the question of federal preemption to the Court of Appeals under 28 U.S.C. § 1292(b) (“Section 1292(b)”).[1] (Dkt. No. 61 (“Motion”).) Having carefully considered the papers submitted, and for the reasons set forth more fully below, the Court hereby Denies defendant's motion.

         I. Background

         The factual allegations underlying this action are well-known to the parties and the Court will not repeat them here. (See MTD Order at 2-3.)

         Relevant here, defendant's argument regarding federal preemption in its motion to dismiss relied on its assertion that plaintiff's claims were preempted by (1) a tentative final monograph issued by the FDA in 1988 (the “1988 TFM”); and (2) two FDA guidance documents, namely one regarding Dissolution Testing and Acceptance Criteria for Immediate-Release Solid Oral Dosage Form Drug Products Containing High Solubility Drug Substances, Guidance for Industry, U.S. Dept. of Health and Human Services Food and Drug Administration (Aug. 2018) (the “Dissolution Testing Guidance”) and another regarding the Waiver of In Vivo Bioavilability and Bioequivalence Studies for Immediate-Release Solid Oral Dosage Forms Based on a Biopharmaceutics Classification System, Guidance for Industry (December 2017) (the “In Vivo Immediate-Release Guidance”) (collectively, “FDA Guidance”). (Dkt. No. 25 at 11-14.)

         In its MTD Order, the Court determined that although the 1988 TFM constituted federal regulation, the 1988 TFM, as well as the relevant incorporated documents, was silent as to the dissolution standards for the type of acetaminophen at issue in plaintiff's complaint, namely rapid release acetaminophen. (MTD Order at 7-8.) With respect to the FDA Guidance, the Court determined that it did not constitute a requirement under the National Uniformity for Nonprescription Drugs provision of the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 379r. (Id. at 8-9.)

         II. Legal Standard

         Section 1292(b) provides:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he [or she] shall so state in writing in such order.

28 U.S.C. § 1292(b). Stated differently, “[a] district court may certify appeal of an interlocutory order if: (1) the order involves a controlling question of law, (2) appealing the order may materially advance the ultimate termination of the litigation, and (3) there is substantial ground for difference of opinion as to the question of law.” In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982). Here, only the third requirement - substantial ground for difference of opinion - is at issue. (See Dkt. No. 65 (“Opp.”) at 3-9.)

         III. Analysis

         “To determine if a substantial ground for difference of opinion exists under § 1292(b), courts must examine to what extent the controlling law is unclear.” Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010) (internal quotations omitted). “Courts traditionally will find that a substantial ground for difference of opinion exists where ‘the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented.'” Id. (quoting 3 Federal Procedure, Lawyers Edition § 3:212 (2010)). “However, just because a court is the first to rule on a particular question or just because counsel contends that one precedent rather than another is controlling does not mean there is a substantial difference of opinion as will support an interlocutory appeal.” Id. (internal quotations omitted).

         Here, defendant asserts that the Court's determination that plaintiff's claims were not expressly preempted by the FDCA was based on two “relevant components, ” both of which, defendant asserts provide substantial ground for difference of opinion. (Opp. at 3-4.) First, defendant contends that the Court's determination that the FDA Guidance did not constitute a requirement under the FDCA is counter to the Ninth Circuit's opinion in Degelmann v. Advanced Medical Optics, Inc. (Opp. at 3 (citing 659 F.3d 835, 842 (9th Cir. 2011)).) Second, defendant argues that the Court's finding that the dissolution standards for immediate release acetaminophen did ...


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