Thomas E. Walker et al v. Astrazeneca Pharmaceuticals LP et al
Filing
33
ORDER REMANDING CASE by Judge Gary A. Feess. The motions to remand are GRANTED, and the actions are REMANDED to Riverside County Superior Court. Accordingly, the motions to dismiss, to stay, and to sever are DENIED as moot. Case number RIC1203191 Case Terminated. Made JS-6 (bp)
<![CDATA[
LINKS: 12-02921: 15, 16, 17, 20, 21; 12-00492: 12, 13, 23, 24; 12-00495: 14, 25, 26
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-02921 GAF (JEMx)
CV 12-00493 GAF (JEMx) /
CV 12-00495 GAF (JEMx)
Title
Ruperto C. Rivera et al. v. AstraZeneca Pharmaceuticals LP et al.
Thomas E. Walker et al. v. AstraZeneca Pharmaceuticals LP et al.
Merrilee Nestande et al. v. AstraZeneca Pharmaceuticals LP et al.
Present: The
Honorable
Date
June 5, 2012
GARY ALLEN FEESS
Renee Fisher
Deputy Clerk
None
Court Reporter / Recorder
N/A
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
None
None
Proceedings:
(In Chambers)
ORDER REMANDING CASE
I.
INTRODUCTION
These putative class actions arise out of personal injuries allegedly sustained as a result of
using Crestor, a cholesterol-lowing drug manufactured by Defendant AstraZeneca
Pharmaceuticals LP (“AstraZeneca”) and distributed by Defendant McKesson Corporation
(“McKesson”). (Docket No. 1, Not., Ex. 1 [Compl.].)1 On April 3 and 4, 2012, Defendants
removed each action to federal court on the purported basis of diversity of citizenship, 28 U.S.C.
§ 1332(a), and federal question jurisdiction, 28 U.S.C. § 1331. (Docket No. 1, Not.)
Notwithstanding McKesson’s California citizenship, Defendants claimed that the company had
1
Except with respect to the plaintiffs named, the three actions are identical, as are each of the pending
motions addressed in this Order. For the sake of simplicity, the Court will refer throughout this Order to the
docket numbers referenced in Ruperto C. Rivera et al. v. AstraZeneca Pharmaceuticals LP et al., CV 12-02921
GAF (JEMx).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-02921 GAF (JEMx)
CV 12-00493 GAF (JEMx) /
CV 12-00495 GAF (JEMx)
Date
June 5, 2012
Title
Ruperto C. Rivera et al. v. AstraZeneca Pharmaceuticals LP et al.
Thomas E. Walker et al. v. AstraZeneca Pharmaceuticals LP et al.
Merrilee Nestande et al. v. AstraZeneca Pharmaceuticals LP et al.
been fraudulently joined purely for the purpose of destroying diversity jurisdiction. (Not. ¶¶
14–21.) Plaintiffs have now filed motions to stay and to remand the actions to state court.
(Docket Nos. 20, 21.) Defendants have filed motions to dismiss various causes of action
contained in each complaint, and motions to sever the multi-plaintiff complaints into separate
cases. (Docket Nos. 15, 16, 17.) Because the Court concludes that Defendants have failed to
meet their burden of demonstrating fraudulent joinder, and that the state law claims contained in
the complaints do not raise substantial federal questions, the motions to remand are GRANTED,
and the actions are REMANDED to Los Angeles County and Riverside County Superior
Courts. Accordingly, the motions to dismiss, to stay, and to sever are DENIED as moot.
II.
BACKGROUND
The United States Food and Drug Administration (“FDA”) first approved Crestor®
(“Crestor”) as a cholesterol-lowering drug in 2003. (Id. ¶ 35.) According to the complaint,
“recent news has come to light that casts a shadow on the safety of using Crestor.” (Id.) In
particular, Plaintiffs allege that the early results of studies looking into the risks of using Crestor
are “not encouraging,” as the drug has been linked to serious side effects, such as heart muscle
disease and deterioration, heart attacks, sudden cardiac death, muscle deterioration, kidney and
liver damage, and diabetes. (Id.)
Plaintiffs allege that Defendants “manufactured, tested, sold, offered for sale, supplied or
placed [Crestor] in the stream of commerce, or in the course of business materially participated
with others in so doing”, despite knowing the drug “to be defective, unreasonably dangerous and
hazardous, and . . . substantially certain to cause injury to persons within the State of California .
. . .” (Id. ¶ 36.) Moreover, Plaintiffs allege that “through . . . funding and control of certain
studies concerning the effects of Crestor”, and “their control over trade publications”, among
other things, Defendants “cooperated with and/or assisted in the wrongful suppression, active
concealment, and/or misrepresentation of the true relationship between Crestor and various
diseases . . . .” (Id. ¶¶ 38–40.) According to the complaint, Defendants also made a series of
“statements, representations and promotional schemes . . . [that] were deceptive, false,
incomplete, [and/or] misleading”, notwithstanding the fact that they knew, or should have known
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-02921 GAF (JEMx)
CV 12-00493 GAF (JEMx) /
CV 12-00495 GAF (JEMx)
Date
June 5, 2012
Title
Ruperto C. Rivera et al. v. AstraZeneca Pharmaceuticals LP et al.
Thomas E. Walker et al. v. AstraZeneca Pharmaceuticals LP et al.
Merrilee Nestande et al. v. AstraZeneca Pharmaceuticals LP et al.
that such statements were false or misleading. (Id. ¶ 41.) Plaintiffs allege that they reasonably
relied on these representations, that they were directly and proximately injured as a result, and
that had they been adequately warned of the drug’s potential side effects, they would have
requested other medications and/or avoided Crestor. (Id. ¶¶ 42–43.)
Plaintiffs further allege that Defendants “negligently, recklessly and wantonly failed to
warn [them] and the general public of the risks associated with taking Crestor . . .
[notwithstanding] studies, including their own, show[ing] that there were problems concerning”
various health risks. (Id. ¶ 45.) Accordingly, Plaintiffs allege that, “as designed, manufactured,
distributed, sold and/or supplied by Defendants,” Crestor was defective because it had been
inadequately tested and because the drug contained inadequate warnings, instructions, and/or
labeling. (Id. ¶¶ 48–49.)
On the basis of these facts, Plaintiffs bring claims for [1] strict liability; [2] negligence;
[3] breach of express warranty; [4] breach of implied warranty; [5] fraud; [6] fraudulent
concealment; and [7] loss of consortium. (Id. ¶¶ 59–95.)
III.
DISCUSSION
A. MOTION TO REMAND
In removing the actions to federal court, Defendants contend that jurisdiction is proper
under both 28 U.S.C. §§ 1332(a) and 1331. (Not. ¶¶ 9–26, 27–37.) The Court conducts these
jurisdictional inquiries in turn.
1. LEGAL STANDARDS GOVERNING REMOVAL AND REMAND
Under Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P.
12(h)(3). “[A] court may raise the question of subject matter jurisdiction, sua sponte, at any time
during the pendency of the action . . . .” Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-02921 GAF (JEMx)
CV 12-00493 GAF (JEMx) /
CV 12-00495 GAF (JEMx)
Date
June 5, 2012
Title
Ruperto C. Rivera et al. v. AstraZeneca Pharmaceuticals LP et al.
Thomas E. Walker et al. v. AstraZeneca Pharmaceuticals LP et al.
Merrilee Nestande et al. v. AstraZeneca Pharmaceuticals LP et al.
2002); see also United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 966 (9th
Cir. 2004) (“Here the district court had a duty to establish subject matter jurisdiction over the
removed action sua sponte, whether the parties raised the issue or not.”).
Under 28 U.S.C. § 1441, a defendant may remove to federal court any state court action
between citizens of different states, and where the amount in controversy exceeds $75,000. 28
U.S.C. § 1441(a); see also 28 U.S.C. § 1332(a). “It is well established that for a case to come
within this statute there must be complete diversity and that diversity is not complete if any
plaintiff is a citizen of the same state as any defendant.” Cresswell v. Sullivan & Cromwell, 922
F.2d 60, 68 (2nd Cir. 1990) (citation omitted). A person’s state of citizenship is “determined by
her state of domicile, not her state of residence.” Kanter v. Warner-Lambert Co., 265 F.3d 853,
857 (9th Cir. 2001). A corporation is a “citizen of any State by which it has been incorporated
and of the State where it has its principal place of business.” 28 U.S.C. § 1332(c)(1).
“Under the longstanding well-pleaded complaint rule, . . . a suit ‘arises under’ federal law
‘only when the plaintiff’s statement of his own cause of action shows that it is based upon
federal law.’” Vaden v. Discover Bank, 129 S. Ct. 1262, 1272 (2009) (quoting Louisville &
Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)) (alteration omitted). Thus, “[a] federal
law defense to a state-law claim does not confer jurisdiction on a federal court.” Valles v. Ivy
Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005) (citing Franchise Tax Bd. of California v.
Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 14 (1983)). Rather, a case may “arise
under” federal law only where the “well-pleaded complaint establishes either [1] that federal law
creates the cause of action or [2] that the plaintiff’s right to relief necessarily depends on
resolution of a substantial question of federal law.” Franchise Tax Bd., 463 U.S. at 28–29.
Nevertheless, “a plaintiff may not defeat removal by omitting to plead necessary federal
questions.” Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (citation omitted). “If a
court concludes that a plaintiff has “artfully pleaded” claims in this fashion, it may uphold
removal even though no federal question appears on the face of the plaintiff’s complaint.” Id.
“Remand may be ordered either for lack of subject matter jurisdiction or for any defect in
removal procedure.” Flatwire Solutions, LLC v. Sexton, 2009 WL 5215757, at *1 (C.D. Cal.
Dec. 29, 2009) (citing 28 U.S.C. § 1447(c)). Moreover, “[c]ourts strictly construe the removal
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-02921 GAF (JEMx)
CV 12-00493 GAF (JEMx) /
CV 12-00495 GAF (JEMx)
Date
June 5, 2012
Title
Ruperto C. Rivera et al. v. AstraZeneca Pharmaceuticals LP et al.
Thomas E. Walker et al. v. AstraZeneca Pharmaceuticals LP et al.
Merrilee Nestande et al. v. AstraZeneca Pharmaceuticals LP et al.
statutes against removal jurisdiction, and jurisdiction must be rejected if there is any doubt as to
the right of removal.” Id. (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). “The
party seeking removal bears the burden of establishing federal jurisdiction.” Id. (citing Prize
Frize, Inc. v. Matrix, Inc., 167 F.3d 1261, 1265 (9th Cir. 1999). “The defendant also has the
burden of showing that it has complied with the procedural requirements for removal.” Id.
(citation omitted).
2. FRAUDULENT JOINDER OF MCKESSON CORPORATION
“[T]he defendant seeking removal to the federal court is entitled to present the facts
showing the joinder [of a non-diverse defendant] to be fraudulent.” McCabe v. General Foods
Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). Fraudulent joinder is a “term of art.” Id. When the
plaintiff “fails to state a cause of action against a resident defendant, and the failure is obvious
according to the settled rules of the state, the joinder of the resident defendant is fraudulent.” Id.
The parties do not dispute that McKesson is a corporation organized and existing under
the laws of the State of Delaware, nor that the company maintains its principal place of business
in San Francisco, California. (Compl. ¶ 24; Not. ¶ 13.) Nor do they dispute that Plaintiff Rivera
is a citizen of the State of California. (Compl. ¶ 1; Not. ¶ 10(a).) Accordingly, for purposes of
diversity jurisdiction, McKesson is a citizen of both Delaware and California, and its joinder, if
proper, clearly precludes a finding of complete diversity under 28 U.S.C. § 1332(a).
Jurisdiction over these actions thus turns on whether McKesson’s citizenship is properly
considered in conducting that inquiry. In their complaints, Plaintiffs allege, “upon information
and belief,” that McKesson distributed the Crestor they later ingested. (Compl. ¶ 34.)
Defendants, however, contend that “the allegations made against McKesson are included solely
to defeat diversity jurisdiction.” (Not. ¶ 15.) First, Defendants contend that McKesson is
fraudulently joined because the mere distribution of Crestor cannot give rise to liability under
California law. (Id. ¶ 18.) Moreover, Defendants contend that Plaintiffs have no evidentiary
basis for making that allegation. In particular, Defendants contend that “Plaintiffs’ allegations
are particularly implausible considering the number of pharmaceutical distributors of Crestor
during the period at issue”, and the fact that McKesson is named in a number of other actions
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-02921 GAF (JEMx)
CV 12-00493 GAF (JEMx) /
CV 12-00495 GAF (JEMx)
Date
June 5, 2012
Title
Ruperto C. Rivera et al. v. AstraZeneca Pharmaceuticals LP et al.
Thomas E. Walker et al. v. AstraZeneca Pharmaceuticals LP et al.
Merrilee Nestande et al. v. AstraZeneca Pharmaceuticals LP et al.
filed by Plaintiffs’ counsel on behalf of eighty-two (82) plaintiffs spanning five California
counties. (Id. ¶ 15.)
This precise issue has received extensive treatment by other district courts in this
jurisdiction, with the overwhelming weight of authority supporting McKesson’s joinder. As
numerous other courts have found, the scope of liability for distributors of pharmaceutical
products has not been clearly established under California law. See Mendez v. AstraZeneca
Pharmaceuticals LP, 2012 WL 1911382, at *2 (E.D. Cal. May 25, 2012) (“California Courts
have yet to address the liability of distributors and other potential defendants in the commercial
chain in prescription drug cases. However, given that a plaintiff's failure to state a cause of
action in the context of a motion to remand must be ‘obvious according to the settled rules of the
state,’ this Court cannot say that a cause of action for strict liability against a prescription drug
distributor or others in the chain of distribution is not viable under California law.”) (internal
citations omitted); Norris v. AstraZeneca Pharmaceuticals LP, 2012 WL 1944760, at *2–3 (S.D.
Cal. May 30, 2012) (“[T]he court concludes that the complaint adequately establishes that a
distributor of pharmaceuticals may be liable under California law.”); Andrews v. Bayer Corp.,
2010 WL 234808, at *3 (C.D. Cal. Jan. 12, 2010) (“Because no California court has ever held
that distributors of pharmaceuticals are exempt from the general rule of strict liability for failure
to warn, the Bayer Defendants have failed to carry their burden of establishing that ‘the plaintiff
fails to state a cause of action against [McKesson], and the failure is obvious according to settled
rules of the state.’”); Black v. Merck & Co., Inc., 2004 WL 5392660, at *3 (C.D. Cal. Mar. 3,
2004) (“Because state law is unsettled as to whether a distributor of prescription drugs could be
strictly liable for failure to warn, the court cannot rule that there is ‘absolutely no possibility’
Plaintiffs could prevail on this claim against McKesson. Thus, Merck has not met its ‘heavy
burden’ of demonstrating that a non-diverse defendant was fraudulently joined.”) (internal
citations omitted); Maher v. Novartis Pharmaceuticals Corp., 2007 WL 2330713, at *4 (S.D.
Cal. Aug. 13, 2007) (“This Court has been unable to find, nor has either party cited, a case under
California law which creates an exception in strict liability for distributors in prescription drug
cases. This Court cannot conclude that it is obvious that the general rule of distributor liability
does not apply under the allegations in this case. The Court further concludes that the learned
intermediary doctrine does not prevent Plaintiff from stating a claim against McKesson because
Plaintiff has alleged that McKesson failed to properly warn physicians, including Plaintiff's
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-02921 GAF (JEMx)
CV 12-00493 GAF (JEMx) /
CV 12-00495 GAF (JEMx)
Date
June 5, 2012
Title
Ruperto C. Rivera et al. v. AstraZeneca Pharmaceuticals LP et al.
Thomas E. Walker et al. v. AstraZeneca Pharmaceuticals LP et al.
Merrilee Nestande et al. v. AstraZeneca Pharmaceuticals LP et al.
physician.”) (internal citation omitted); Moorhouse v. Bayer Healthcare Pharmaceuticals, Inc.,
2008 WL 2477389, at *6 (N.D. Cal. Jun. 18, 2008) (“The Court finds that it is not obvious
according to the settled rules of California that distributors of prescription drugs cannot be held
liable for a failure to warn.”) (citation omitted); Aaron v. Merck & Co., Inc., 2005 WL 5792361,
at *2 (C.D. Cal. Jul. 26, 2005) (“Defendant Merck does not, and cannot cite any California cases
holding that a distributor cannot be held liable for failure to warn, as the California state courts
have not yet addressed that issue. Defendant Merck has simply failed to satisfy its heavy burden
of demonstrating that there is no possibility that Plaintiffs will be able to prevail on the merits of
their claims in state court, and therefore has failed to demonstrate that Defendant McKesson was
fraudulently joined.”)
Accordingly, the Court cannot conclude that claims were brought against McKesson
solely for the purposes of destroying diversity jurisdiction. Even if such claims were later found
to fail as a matter of law, that failure would not, in light of the above authorities, be so “obvious”
as to support a finding that the Defendant against which they are brought was fraudulently
joined.
The only remaining issue, therefore, is whether at this stage of the proceedings the factual
allegations concerning McKesson are so bare as to require a finding of fraudulent joinder. This
Court follows the numerous other district courts in this jurisdiction which have found similar, if
not identical allegations sufficient to state a viable claim against the distributor of the drug in
question. See Mendez, 2012 WL 1911382, at *2–3 (finding that, for purposes of fraudulent
joinder analysis, plaintiffs were entitled to allege that McKesson had distributed the Crestor they
ingested “upon information and belief,” because whether McKesson did so was “not a fact
plaintiffs would have reason to know directly”); Norris, 2012 WL 1944760, at *2–3 (“As
Plaintiffs may not have purchased Crestor from McKesson, AstraZeneca concludes that
McKesson is not a proper defendant. Based upon the complaint's allegations, the Notice of
Removal, the evidence submitted by the parties and construing the complaint in the light most
favorable to the plaintiff, accepting as true all material undisputed allegations in the complaint,
as well as reasonable inferences to be drawn from them, the court cannot conclude that it is
‘obvious’ that McKesson did not distribute the Crestor ingested by Plaintiffs. Moreover, given
the doubts concerning McKesson's role in distributing Crestor to Plaintiffs, any doubts
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-02921 GAF (JEMx)
CV 12-00493 GAF (JEMx) /
CV 12-00495 GAF (JEMx)
Date
June 5, 2012
Title
Ruperto C. Rivera et al. v. AstraZeneca Pharmaceuticals LP et al.
Thomas E. Walker et al. v. AstraZeneca Pharmaceuticals LP et al.
Merrilee Nestande et al. v. AstraZeneca Pharmaceuticals LP et al.
concerning diversity jurisdiction are construed against the exercise of jurisdiction and in favor of
remand.”) (internal citations omitted); Moorhouse, 2008 WL 2477389, at *6 (finding allegation
that McKesson distributed the relevant drug, and that McKesson distributed the drugs giving rise
to the plaintiffs’ injuries sufficient to state a viable claim); Aaron, 2005 WL 5792361, at *2
(finding allegation that McKesson is a “wholesale distributor of all Merck Products, including
Vioxx,” and “marketed, sold and distributed Vioxx which was ingested by the Plaintiffs and
Plaintiffs' decedents” sufficient to state a viable claim); Black, 2004 WL 5392660, at *2–3
(finding allegations that McKesson “was in the business of promoting and distributing the
pharmaceutical Vioxx” and that plaintiffs had “been prescribed and supplied with, received, and
[had] taken and ingested and consumed the prescription drug Vioxx, as . . . distributed,
marketed, labeled, promoted, packaged . . . or otherwise placed in the stream of interstate
commerce by Defendants Merck & Company, Inc. [and] McKesson,” sufficient to state a viable
claim).
The circumstances of this case do not compel a different conclusion. Plaintiffs allege,
“upon information and belief,” that McKesson distributed the Crestor they later ingested.
(Compl. ¶ 34.) Notwithstanding Defendants’ evidence concerning the number of Crestor
distributors, that allegation is clearly sufficient to survive a fraudulent joinder analysis.2
The Court will therefore consider McKesson’s citizenship for purposes of determining
jurisdiction. Because both Plaintiff Rivera and Defendant McKesson are citizens of California,
complete diversity of citizenship is lacking, and the Court cannot entertain subject matter
jurisdiction over the action pursuant to 28 U.S.C. § 1332.
2
Bockrath v. Aldrich Chemical Co., Inc., cited by Defendants, is inapposite, as that case, along with the
heightened pleading standards it articulated, were aimed at lawsuits involving “complicated and possibly esoteric
medical causation issues,” in which “prospecting plaintiffs . . . sue multiple defendants on speculation that their
products may have caused harm over time through exposure to toxins in them, and who thereafter try to learn
through discovery whether their speculation was well-founded.” 980 P.2d 398, 404–405 (Cal. 1999). In this
case, as in the numerous cases cited above, Plaintiffs are merely alleging that McKesson distributed the only
product alleged to have caused their injury.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-02921 GAF (JEMx)
CV 12-00493 GAF (JEMx) /
CV 12-00495 GAF (JEMx)
Date
June 5, 2012
Title
Ruperto C. Rivera et al. v. AstraZeneca Pharmaceuticals LP et al.
Thomas E. Walker et al. v. AstraZeneca Pharmaceuticals LP et al.
Merrilee Nestande et al. v. AstraZeneca Pharmaceuticals LP et al.
3. FEDERAL QUESTION JURISDICTION
Defendants also contend that this Court may maintain federal question jurisdiction over
these actions pursuant to 28 U.S.C. § 1331. (Not. ¶ 28.) In particular, Defendants contend that
Plaintiffs’ strict liability and negligence claims require construction and application of the
Federal Food, Drug and Cosmetic Act (“FDCA”) and its implementing regulations, because the
FDA has plenary and exclusive authority over the regulation of prescription drugs. (Id. ¶¶
28–32.)
A district court in the Southern District of California recently rejected precisely the same
contention. See Norris, 2012 WL 1944760, at *3 (finding that nearly identical claims contained
in nearly identical complaint “do not implicate the existence of a substantial federal question”
and “are not preempted by federal law even if approved for sale by the FDA and potentially
implicate the FDA’s drug labeling regulations.”) As the Norris court found, none of Plaintiffs’
state law claims raise a “substantial federal question” under governing Ninth Circuit law, which
requires that they be an “inherently federal claim” articulated in state law terms, or that the “the
right to relief depend[] on the resolution of a substantial, disputed federal question.” Lippitt v.
Raymond James Financial Services, Inc., 340 F.3d 1033, 1044 (9th Cir. 2003). Defendants have
offered no explanation as to how, in light of the Supreme Court’s recent holding that state law
failure to warn cases may proceed in the face of FDA regulation, either of these standards are
met here. See Wyeth v. Levine, 555 U.S. 555, 581 (2009) (“In short, Wyeth has not persuaded
us that failure-to-warn claims like Levine's obstruct the federal regulation of drug labeling.
Congress has repeatedly declined to pre-empt state law, and the FDA's recently adopted position
that state tort suits interfere with its statutory mandate is entitled to no weight.”) Indeed,
Defendants do not even argue the point in opposition.
4. CONCLUSION RE: SUBJECT MATTER JURISDICTION
For the foregoing reasons, the Court finds that neither 28 U.S.C. §§ 1331 nor 1332(a)
provide a basis for federal jurisdiction over these actions. Accordingly, the actions are
REMANDED to Los Angeles County and Riverside Superior Courts.
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LINKS: 12-02921: 15, 16, 17, 20, 21; 12-00492: 12, 13, 23, 24; 12-00495: 14, 25, 26
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-02921 GAF (JEMx)
CV 12-00493 GAF (JEMx) /
CV 12-00495 GAF (JEMx)
Date
June 5, 2012
Title
Ruperto C. Rivera et al. v. AstraZeneca Pharmaceuticals LP et al.
Thomas E. Walker et al. v. AstraZeneca Pharmaceuticals LP et al.
Merrilee Nestande et al. v. AstraZeneca Pharmaceuticals LP et al.
IV. CONCLUSION
The Court REMANDS each of the above actions to state court.
Ruperto C Rivera et al v. AstraZeneca Pharmaceuticals LP et al, CV 12-02921-GAF-JEM is
REMANDED to Los Angeles County Superior Court. Thomas E. Walker et al. v. AstraZeneca
Pharmaceuticals LP et al., CV 12-00493-GAF-JEM, and Merrilee Nestande et al. v. AstraZeneca
Pharmaceuticals LP et al., CV 12-00495-GAF-JEM are REMANDED to Riverside County
Superior Court. Defendants’ motions to dismiss and to sever, and Plaintiffs’ motions to stay are
DENIED as moot. The hearings presently scheduled on these motions for June 11, 2012, at
9:30 a.m. are hereby VACATED.
IT IS SO ORDERED.
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