Rice et al v. McKesson Corporation et al
Filing
13
Received Order From Eastern District of Kentucky re Remand of MDL member case to San Francisco Superior Court.(rcs, COURT STAFF) (Filed on 8/7/2012)
<![CDATA[
Case: 2:11-md-02226-DCR Doc #: 2074 Filed: 08/07/12 Page: 1 of 3 - Page ID#: 65175
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Covington)
IN RE: DARVOCET, DARVON AND
PROPOXYPHENE PRODUCTS
LIABILITY LITIGATION
Whitthauer, et al., v. McKesson
Corporation., et al.,
Rice, et al., v. McKesson Corp., et al.,
Posey, et al., v. McKesson Corp., et al.,
)
)
)
)
)
)
)
)
)
)
)
)
)
Master File No. 2: 11-md-2226-DCR
MDL Docket No. 2226
Civil Action No. 2: 12-132-DCR
Civil Action No. 2: 12-134-DCR
Civil Action No. 2: 12-135-DCR
MEMORANDUM ORDER
*** *** *** ***
Defendant Eli Lilly and Company (“Lilly”) removed the above-referenced cases to
federal court on the basis of diversity jurisdiction.
In each Notice of Removal, Lilly
acknowledged that complete diversity did not exist among all parties. It argued, however, that
removal was proper because Defendants McKesson Corporation and Xanodyne Pharmaceuticals,
Inc. were fraudulently joined. Lilly further asserted that certain non-diverse plaintiffs were
fraudulently misjoined. The plaintiffs filed motions to remand, arguing that the non-diverse
parties are properly joined and that the Court lacks subject matter jurisdiction. [MDL Record
Nos. 2003, 2006 and 2012] In light of the Court’s prior rulings and in the interest of judicial
FILED AND CERTIFIED
ROBERT R. CARR, CLERK
U.S. DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Date:
By:
-1-
8/7/2012
Linda Tierney
Deputy Clerk
Case: 2:11-md-02226-DCR Doc #: 2074 Filed: 08/07/12 Page: 2 of 3 - Page ID#: 65176
economy, Lilly has indicated that it does not intend to file a response in opposition to the
plaintiffs’ motions.1
As this Court has noted with respect to similar motions, “fraudulent joinder of nondiverse defendants will not defeat removal on diversity grounds.” Coyne ex rel. Ohio v. Am.
Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). A non-diverse defendant is fraudulently joined
if there is no “reasonable basis” to expect that the plaintiff’s claims against it could succeed
under state law. Id. (citing Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir.
1994)). Further, the burden of establishing fraudulent joinder is on the removing party.
Alexander, 13 F.3d at 949. [See Record No. 2052]
Lilly initially argued that the plaintiffs’ claims against McKesson could not succeed
because: (1) prescription drug distributors are not subject to liability under the law of California
(where this action was originally filed) and (2) the claims are preempted under the Supreme
Court’s holding in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011). However, the Court has
rejected these arguments as well as the argument that the Kentucky-citizen plaintiffs are
fraudulently misjoined. See Freitas v. McKesson Corp., No. 2: 12-50-DCR, 2012 U.S. Dist.
LEXIS 101955, at *11-20, *28-31 (E.D. Ky. July 17, 2012). Likewise, the factual allegations
set forth in the Complaints appear to be sufficient under California’s lenient pleading rules,
1
In its notification to the Court, Lilly indicates that, by declining to file a response in
opposition to the motions to remand, it does not state or imply that any of the arguments in favor of
removal or arguments that could have been made in opposition to remand are invalid or factually
or legally unsupportable. Likewise, it asserts that its position should not be viewed as a waiver
should additional grounds for removal arise in the future.
-2-
Case: 2:11-md-02226-DCR Doc #: 2074 Filed: 08/07/12 Page: 3 of 3 - Page ID#: 65177
which “‘require . . . only general allegations of ultimate fact.’” Id. at *23 (quoting McKell v.
Wash. Mut., Inc., 49 Cal. Rptr. 3d 227, 238 (Cal. Ct. App. 2006)).
In summary, Lilly has not demonstrated that the citizenship of the non-diverse parties
should be disregarded in these three cases. As a result, the Court lacks subject matter jurisdiction
over these actions. Accordingly, it is hereby
ORDERED as follows:
(1)
The plaintiffs’ Motions to Remand for Lack of Subject Matter Jurisdiction [MDL
Record Nos. 2003, 2006 and 2012] are GRANTED.
(2)
The motion to dismiss filed by Xanodyne Pharmaceuticals, Inc. with respect to
Civil Action Nos. 2: 12-132-DCR, 2: 12-134-DCR, and 2: 12-135-DCR [MDL Record No.
2001] is DENIED, without prejudice, as moot.
(3)
The motion to dismiss for failure to state a claim filed by McKesson Corporation
with respect to Civil Action Nos. 2: 12-132-DCR, 2: 12-134-DCR, and 2: 12-135-DCR [MDL
Record No. 1975] is DENIED, without prejudice, as moot.
(4)
These actions are REMANDED to the Superior Court of California, San
Francisco County, and STRICKEN from this Court’s docket.
This 7th day of August, 2012.
-3-
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
