HUGHES v. MYLAN INC. et al
Filing
15
MEMORANDUM THAT THIS COURT DISAGREED AND REMANDED ALL OF THE CASES BEFORE IT BECAUSE THE FORUM DEFENDANT RULE PREVENTED REMOVAL.. SIGNED BY HONORABLE BERLE M. SCHILLER ON 10/25/11. 10/25/11 ENTERED AND COPIES E-MAILED.(dp, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHELLY HUGHES,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
NANCY MORENO,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
ANDREA BOWEN,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
MARY JO WALL,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
AMY DORAN, et al.,
Plaintiffs,
v.
MYLAN INC., et al.,
Defendants.
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CIVIL ACTION
No. 11-5543
CIVIL ACTION
No. 11-5544
CIVIL ACTION
No. 11-5545
CIVIL ACTION
No. 11-5546
CIVIL ACTION
No. 11-5547
MARILYN APPLE, et al.,
Plaintiffs,
v.
MYLAN INC., et al.,
Defendants.
LISA CROYLE,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
TERRY REESE,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
PATRICIA HOLK,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
MICHELLE HOBBS
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
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2
CIVIL ACTION
No. 11-5548
CIVIL ACTION
No. 11-5549
CIVIL ACTION
No. 11-5550
CIVIL ACTION
No. 11-5551
CIVIL ACTION
No. 11-5552
COLLEEN GRIGSBY, et al.,
Plaintiffs,
v.
MYLAN INC., et al.,
Defendants.
CHANTE NEWMAN,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
EVELYN REGENER,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
SHANNON MORRISON,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
ASHLEY BROADDUS, et al.,
Plaintiffs,
v.
MYLAN INC., et al.,
Defendants.
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CIVIL ACTION
No. 11-5553
CIVIL ACTION
No. 11-5554
CIVIL ACTION
No. 11-5555
CIVIL ACTION
No. 11-5556
CIVIL ACTION
No. 11-5557
WILLIAM PHELPS,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
STEVEN SHEMELIA,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
KATIE TISCH,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
GLENDA MAXWELL,
Plaintiff,
v.
MYLAN INC., et al.,
Defendants.
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CIVIL ACTION
No. 11-5558
CIVIL ACTION
No. 11-5559
CIVIL ACTION
No. 11-5560
CIVIL ACTION
No. 11-5617
MEMORANDUM
Schiller, J.
October 25, 2011
A number of people died using Defendants’ pain relief product and as a result Plaintiffs sued
in the Philadelphia Court of Common Pleas. Plaintiffs, for the most part, are suing as individuals and
as administrators of the estates of the various decedents. Defendants removed to this Court, arguing
that the Defendant who made removal improper was fraudulently joined. This Court disagreed and
4
remanded all of the cases before it because the forum defendant rule prevented removal. In some of
the cases pending before the Court, Defendants seek a second bite at the removal apple. In others,
this is Defendants’ first attempt to bring these cases to federal court. Defendants charge that the
Supreme Court’s recent decision in Pliva v. Mensing, coupled with Plaintiffs’ recently amended state
court complaints now renders these cases removable. The Court again disagrees and holds that all
of these cases will return to state court because Defendants failed to show fraudulent joinder. Thus,
for the reasons that follow, Plaintiffs’ motions to remand will be granted.
I.
BACKGROUND
A.
Facts
Mylan, Inc. (“Mylan”) is a registered Pennsylvania corporation. (Original Master Long Form
Compl. ¶ 2.) Mylan Pharmaceuticals, Inc. is a West Virginia corporation and is a subsidiary of
Mylan. (Id. ¶ 3.) Mylan Technologies, Inc. is a West Virginia corporation with its principal place of
business in Vermont and is also a subsidiary of Mylan. (Id. ¶ 4.) Mylan, Mylan Pharmaceuticals, and
Mylan Technologies (collectively, the “Mylan Defendants”) designed, formulated, manufactured,
marketed, sold, distributed, and/or promoted the fentanyl patch. (Id. ¶¶ 6-10.) Fentanyl is a potent
prescription painkiller. (Id. ¶ 14.) The fentanyl patch is a “fentanyl transdermal system patch” that
comes in 25, 50, 75, and 100 microgram sizes and uses a “matrix” design. (Id.)
Plaintiffs’ Master Long Form Complaint, filed in state court on August 15, 2011, includes
claims for negligence, strict product liability, breach of implied and express warranties, and wrongful
death. Plaintiffs note that not all claims asserted in the Master Long Form Complaint are asserted
by all Plaintiffs, and not all claims in the Master Long Form Complaint are asserted by each Plaintiff
5
against each Defendant. (Id. ¶ 1.)
The patch, which decedents applied to their skin, was supposed to deliver a controlled rate
of fentanyl over time depending on the dosage prescribed by the patient’s doctor. (Id. ¶¶ 15, 22-23.)
Although the decedents used the patch properly and as prescribed by their doctors, the Mylan
Defendants’ fentanyl patch delivered a deadly dose of fentanyl. (Id. ¶¶ 29, 31, 40.) Despite the Mylan
Defendants’ assertions to the contrary, Plaintiffs contend that the fentanyl patch was not a safe and
effective way to alleviate chronic and severe pain. (Id. ¶ 35.) Rather, the product was defective
because “[d]ecedents received lethal blood concentrations of fentanyl—which caused them to die
of a fentanyl overdose—while using the Patch as prescribed.” (Id. ¶¶ 41, 45.)
Plaintiffs charge that the Mylan Defendants were negligent in communicating the risks of the
fentanyl patch to the public and to doctors and that had Plaintiffs’ doctors been adequately warned
of the products’ dangers, they would not have prescribed the fentanyl patch. (Id. ¶ 35.) Moreover,
the Mylan Defendants were aware that they were placing a defective product into the stream of
commerce yet failed to disclose this information in the name of higher profits. (Id. ¶¶ 36-39.) The
Mylan Defendants “could have (and should have) suspended sales of their inadequately-labeled and,
therefore, misbranded drug until their product’s label was revised to warn of these significant
dangers.” (Id. ¶ 65.) The Mylan Defendants also breached their duty to provide warnings about the
dangers of their products and to safeguard the health of the public. (Id. ¶¶ 71-72.) Furthermore,
because the Mylan Defendants produced a generic drug, federal law required them to ensure that the
labeling for their fentanyl patches had accurate information and to communicate important safety
information about their products to the medical community and consumers. (Id. ¶ 73-74.) Moreover,
Plaintiffs allege that the Mylan Defendants failed to properly and adequately inform the medical
6
community and the FDA of the risks associated with its products and their failure was a factual and
proximate cause of decedents’ death. (Id. ¶¶ 76-79.)
According to Plaintiffs, the Mylan Defendants were negligent in that they could have
reasonably foreseen that the design of their product was defective because the products: (1) lacked
a rate control membrane; and/or (2) used fentanyl rather than buprenorphine. (Id. ¶¶ 49-50, 52.) A
safer alternative design existed which could have reduced the danger of patient overdoses. (Id. ¶¶
54-57, 59, 61.) The negligent design of the Mylan Defendants was a factual and proximate cause of
decedents’ deaths. (Id. ¶ 64.)
The strict liability claim is based on allegations that the Mylan Defendants produced products
that were defective and not suitable or safe for their intended purpose at the time they were
manufactured by the Mylan Defendants. (Id. ¶ 95.) The fentanyl patches contained manufacturing
and design defects and were defective because they lacked adequate warnings and instructions. (Id.
¶¶ 96-98.) “The Patches in question malfunctioned during normal use, delivered fentanyl to
Decedents at a faster rate and in greater concentration than they were designed to give, thereby
delivering fatal doses of fentanyl to Decedents.” (Id. ¶ 102.)
B.
Procedure
The first cases before this Court involved five individuals who died while using paintreatment patches: David Doran, Kelley Reese, Martin Lalka (brought by Colleen Grigsby), Stephen
Apple, and Christopher Tisch. Those five actions were consolidated before this Court for resolution
of their motions to remand on December 14, 2010. Defendants filed a global opposition on January
7, 2011. The Court remanded the cases on January 19, 2011. Additional cases were filed subsequent
to the Court’s remand order.
7
In September 2011, the Mylan Defendants removed all nineteen cases now before this Court.
For two of these cases, the Mylan Defendants’ notice of removal was filed within thirty days of
receipt of the original complaint. For the remaining cases, including those that were previously
removed, the notice of removal was not filed within thirty days of the filing of the original complaint
but was filed within thirty days of the filing of Plaintiffs’ Original Master Long Form Complaint.
After Plaintiffs filed a motion to remand, the nineteen cases were consolidated before this Court for
purposes of deciding the remand motion. The Mylan Defendants filed a response to Plaintiffs’
request for remand.
II.
STANDARD OF REVIEW
A defendant seeking to invoke federal diversity jurisdiction may only remove a case to
federal court if “none of the parties in interest properly joined and served as defendants is a citizen
of the State in which the action is brought.” 28 U.S.C. § 1441(b). The removal statute should be
strictly construed and all doubts should be resolved in favor of remand. Abels v. State Farm Fire &
Cas. Co., 770 F.2d 26, 29 (3d Cir. 1995); see also Brown v. Francis, 75 F.3d 860, 864-65 (3d Cir.
1996). The removing defendant bears the burden of demonstrating that jurisdiction is appropriate.
See Pullman Co. v. Jenkins, 305 U.S. 534, 540 (1939); Boyer v. Snap-on Tools Corp., 93 F.2d 108,
111 (3d Cir. 1990). “Because a party who urges jurisdiction on a federal court bears the burden of
proving that jurisdiction exists, a removing party who charges that a plaintiff has fraudulently joined
a party to destroy diversity of jurisdiction has a heavy burden of persuasion.” Boyer, 913 F.2d at 111
(internal quotations omitted).
When faced with a possible fraudulent joinder, a court will accept a plaintiffs’ well-pleaded
8
allegations as true and resolve “any uncertainties as to the current state of controlling substantive law
in favor of the plaintiff.” In re Briscoe, 448 F.3d 201, 217 (3d Cir. 2006) (quoting Batoff v. State
Farm Ins. Co., 977 F.2d 848, 851-52 (3d Cir. 1992)). Courts may look beyond the pleadings to
determine whether joinder was fraudulent; however, a court will not “step from the threshold
jurisdictional issue into a decision on the merits.” Id. at 219. “The joinder of a party should be
deemed fraudulent only if the claims are ‘wholly insubstantial and frivolous.’” West v. Marriot Hotel
Servs., Inc., Civ. A. No. 10-4130, 2010 WL 4343540, at *2 (E.D. Pa. Nov. 2, 2010) (quoting In re
Briscoe, 448 F.3d at 217). The Third Circuit has emphasized that proper joinder for jurisdictional
purposes is a lower bar than would be required for a claim to survive a motion to dismiss, or a
motion for summary judgment. See id. (citing Batoff, 977 F.2d at 852 and Boyer, 913 F.2d at 111).
III.
DISCUSSION
A.
The Propriety of the Mylan Defendants’ Removal
A defendant may remove any civil action brought in state court over which the district courts
of the United States have original jurisdiction. 28 U.S.C. § 1441(a). However, if subject matter
jurisdiction is premised on diversity of citizenship, the forum defendant rule states that a case is
removable “only if none of the parties in interest properly joined and served as defendants is a citizen
of the State in which such action [was] brought.” 28 U.S.C. § 1441(b). Because Mylan is a citizen
of Pennsylvania, which is where Plaintiffs have sued, the cases before the Court are not removable.
But, if Plaintiffs fraudulently joined Mylan, the Court could disregard the citizenship of Mylan, and
these cases could be removed based on diversity.
District courts may disregard a defendant’s citizenship for jurisdictional purposes upon a
9
showing of fraudulent joinder. Briscoe, 448 F.3d at 216. Joinder is fraudulent if either a reasonable
basis in fact or colorable ground supporting the claim, or a good-faith intention to prosecute the
action against the defendant in question is lacking. Id. (citing Abels, 770 F.2d at 32). But, “if there
is even a possibility that a state court would find that the complaint states a cause of action against
any one of the resident defendants, the federal court must find that joinder was proper and remand
the case to state court.” Briscoe, 448 F.3d at 217.
1.
Timing of removal
Ordinarily, a defendant must remove a case within thirty days of receipt of the initial
pleading. 28 U.S.C. § 1446(b). However, “[i]f a case stated by the initial pleading is not removable,
a notice of removal may be filed within thirty days after receipt by the defendant, through service
or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first
be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b).
Plaintiffs argue that these cases are not removable because they took no voluntary act that
would allow the Mylan Defendants a second opportunity to remove, or an opportunity to remove
outside of the thirty-day window provided by the removal statute. (Pls.’ Mot. to Remand and Br. in
Supp. [Pls.’ Br.] at 8-10.) Because Plaintiffs merely refined their claims against Mylan and did not
withdraw them, the cases remain unremovable. (Id. at 11-18.) Finally, even if the Mylan Defendants
complied with the procedural aspects of the removal statute, they still cannot prove that Mylan was
fraudulently joined because Plaintiffs still have colorable claims notwithstanding Mensing. (Id. at
20-33.)
The Mylan Defendants contend that they have complied with the procedural requirements
of the removal statute; they filed the removal notices within thirty days of receiving Plaintiffs’
10
Original Master Long Form Complaint, which qualifies as “a copy of an amended pleading . . . from
which it may first be ascertained that the case is one which is or has become removable.” (Defs.’
Consol. Resp. in Opp’n to Pls.’ Mot. to Remand at 13-19.) Having complied with the timing
provision of 28 U.S.C. § 1446(b), Plaintiffs’ claims against Mylan, which “reek[] of desperation”
and fly in the “face of unambiguous United States Supreme Court precedent to the contrary” are no
longer colorable. (Id. at 11.) Because “Mensing preempts each and every iteration and variation of
a failure-to-warn claim that [Plaintiffs] have contrived,” the Pennsylvania citizenship of Mylan can
be disregarded. (Id. at 17.) The Court disagrees.
2.
Pleadings
Plaintiffs’ claims against Mylan may or may not be desperate, but the Court concludes that
a state court should decide their ultimate merits.
On June 23, 2011, the Supreme Court issued its decision in Pliva v. Mensing, 131 S. Ct.
2567. The Supreme Court held in Mensing that federal drug regulations applicable to generic drug
manufacturers directly conflicted with, and thus preempted, state law failure-to-warn claims for
inadequate warning labels on generic drugs. The bulk of these cases were filed prior to the Mensing
decision. However, on August 15, 2011, Plaintiffs filed an Original Master Long Form Complaint
in the Court of Common Pleas. In early September 2011, the Mylan Defendants filed their notices
of removal.1
Plaintiffs argue that a case can only become removable by the voluntary action of a plaintiff
1
The Mylan Defendants note that the notices of removal in the Holk and Morrison
matters before this Court were filed within thirty days of service of the original complaints, and
thus the timing issue of the removal based on the filing of the Original Master Long Form
Complaint is not relevant to those cases. Plaintiffs do not address this contention.
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and that a subsequent development in case law, such as the Supreme Court’s ruling in Mensing, does
not make a case that was initially not subject to removal, removable. The Court understands the
Mylan Defendants’ arguments for removal are more nuanced than simply whether a Supreme Court
decision alone can suffice to permit a successive removal petition. According to the Mylan
Defendants, Plaintiffs amended their complaint to address a Supreme Court decision that held that
their failure-to-warn claims are preempted. Thus, the amended complaint, coupled with the change
in the legal landscape, now makes it ascertainable that the cases have become removable.
Plaintiffs rightly note that courts have consistently held that the decision of another court is
not an “other paper” which can render a case removable.2 See Pennsylvania v. Tap Pharm. Prods.,
Inc., 415 F. Supp. 2d 516, 527 (E.D. Pa. 2005) (“Although the Third Circuit has not considered
whether a subsequent Supreme Court opinion constitutes an ‘other paper’ under section 1446(b), the
majority rule from other district courts is that unrelated opinions fall outside this language.”);
Morsani v. Major League Baseball, 79 F. Supp. 2d 1331, 1332-34 (M.D. Fla. 1999) (“Many courts
have examined and rejected the defendants’ argument that an order entered in another case may
constitute ‘an order or other paper’ pursuant to § 1446(b).”); Holiday v. Travelers Ins. Co., 666 F.
Supp. 1286, 1289-90 (W.D. Ark. 1987) (rejecting argument that a Supreme Court decision qualifies
as an “other paper” under removal statute).
But, if the Original Master Long Form Complaint is an amended complaint, the cases holding
2
The Third Circuit has permitted removal in a narrow set of circumstances based on a
subsequent Supreme Court decision, provided that the order, “as manifested through a court
decision,” is sufficiently related to a pending case to trigger § 1446(b). Doe v. Am. Red Cross, 14
F.3d 196, 202 (3d Cir. 1993). An order is sufficiently related if it: (1) came from a court superior
in the same judicial hierarchy; (2) was directed at a particular defendant; and (3) expressly
authorized that same defendant to remove an action against it in another case involving similar
facts and legal issues. Id. at 203.
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that a court decision is not an “other paper” for removal purposes miss the mark. And that is how
this Court will view Plaintiffs’ recent Original Master Long Form Complaint. With the exception
of the two cases in which the Mylan Defendants filed a notice of removal within thirty days of
service of the original complaints, they elected to remain in state court. Upon review of the Original
Master Long Form Complaint, the Court believes the Mylan Defendants have overstated the changes
contained in that document. Nevertheless, the state court seems to have treated it as an amended
complaint and the Court will treat Plaintiffs’ latest filing in state court as more than a mere
“refinement” of their arguments in light of Mensing. Regardless, because remand is required even
if the Original Master Long Form Complaint is an amended pleading under 28 U.S.C. § 1446(b), the
Court’s decision is not that the Mylan Defendants procedurally waived their removal rights by
waiting more than thirty days to file a notice of removal. As explained below, being able to point to
an “amended pleading” which may serve as a basis for removal does not unlock the doors to the
federal courthouse.
B.
The Mylan Defendants Fail to Satisfy Their Burden for Remand
If the timing element is removed from the Court’s attention, should Plaintiffs be deprived of
their choice of forum? That is, what if the Mensing decision had existed before Plaintiffs filed their
original complaints? Could the Mylan Defendants remove these cases to federal court?
No. Admittedly, the law has changed. But this change in the law does not affect Defendants
ability to remove. Prior to Mensing, failure-to-warn claims brought under state law based on
inadequate warning labels proceeded against generic drug manufacturers. The Supreme Court in
Mensing halted such claims as preempted by federal drug regulations. The flaw in the Mylan
Defendants’ argument is their assumption that somehow a “landmark” Supreme Court ruling lessens
13
the standard to prove fraudulent joinder. The Mylan Defendants may ultimately win the war, but they
are stuck fighting on the turf Plaintiffs selected.
For some of these cases, this is the second attempt at removal by the Mylan Defendants.
Generally, “the first remand, because it establishes the law of the case, ‘may be revisited only when
intervening events justify that step.’” Midlock v. Apple Vacations W., Inc., 406 F.3d 453, 457 (7th
Cir. 2005) (quoting Benson v. SI Handling Sys., Inc., 188 F.3d 780, 783 (7th Cir. 1999)). The law
of the case doctrine applies to a successive removal by the same party on the same grounds if nothing
of significance has changed since the prior removal. Bank of N.Y. Mellon v. Ribadeneira, Civ. A. No.
11-1433, 2011 WL 3843817, at *1 (D. Ariz., Aug. 30, 2011) (collecting cases). A successive
removal petition following remand is permissible, however, if subsequent pleadings or conduct of
the parties brings a once unremovable case within the grasp of the removal jurisdiction of the federal
courts. Brown v. Jevic, 575 F.3d 322, 328 (3d Cir. 2009); In re Diet Drugs, 282 F.3d 220, 232 n.8
(3d Cir. 2002).
Here, from a removal perspective, this case is the same as it ever was. The same Plaintiffs
have sued the same Defendants, alleging that the Mylan Defendants made and sold a defective
product that killed people. Plaintiffs even bring the same legal claims and seek the same relief as
sought previously. Whether or not some or all of their claims are preempted based on the Supreme
Court’s decision in Mensing is a legal issue based on preemption that can be addressed by a state
court. See Ramirez v. Humana, Inc., 119 F. Supp. 2d 1307, 1309 (M.D. Fla. 2000) (“Ordinary
preemption operates to dismiss state claims on the merits and may be invoked in either federal or
state court.”); cf. Caterpillar v. Williams, 482 U.S. 386, 393 (1987) (noting that a case may not be
removed based on a federal defense, including preemption, even if that is the only question at issue).
14
The Mylan Defendants must show that Plaintiffs’ bid for recovery from Mylan is not only weak, but
practically “a clear legal impossibility.” West, 2010 WL 4343540, at *3. “Fraudulent joinder should
not be found simply because plaintiff has a weak case against a non-diverse defendant.” Id. (citing
Boyer, 913 F.2d at 111.) The differences between the Master Original Long Form Complaint recently
filed by Plaintiffs and the various complaints filed by the individual plaintiffs do not make these
cases removable. The difference in the law as a result of Mensing strengthens the Mylan Defendants’
arguments for dismissal. That, however, is not the test for fraudulent joinder. See Lyall v. Airtran
Airlines, Inc., 109 F. Supp. 2d 365, 367-68 (E.D. Pa. 2000) (“Simply because we come to believe
that, at the end of the day, a state could would dismiss the allegations against a defendant for failure
to state a cause of action does not mean that the defendant’s joinder was fraudulent.”) Furthermore,
the Mylan Defendants’ theory is inconsistent with the clear indication that federal courts possess
limited jurisdiction and that doubts are to be resolved in favor of remand. See Brown, 575 F.3d at
326; Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004) (noting that policy
against removal has always been “rigorously enforced”). Mensing merely provides a framework for
the state court to adjudicate Plaintiffs’ claim; it is not a hook that lands these cases in federal court.
The Mylan Defendants face a heavy burden; they must show the Pennsylvania law would not
recognize any of the claims asserted against Mylan. See Route 27, LLC v. Getty Petroleum Mktg.,
Inc., Civ. A. No. 10-3080, 2011 WL 1256618, at *4 (D.N.J. Mar. 30, 2011).
Plaintiffs offer a number of reasons why Mensing does not foreclose their failure-to-warn
claims. Of course, the Mylan Defendants disagree. But, based on the allegations in the Original Long
Form Complaint, Plaintiffs have stated a reasonable basis for their claims against Mylan. Thus, this
Court need not address the ultimate outcome of Plaintiffs’ claims following Mensing because a state
15
court is the proper forum for that issue. Furthermore, at a minimum, Plaintiffs charge that the Mylan
Defendants negligently designed their fentanyl patch, thereby causing injury to Plaintiffs. (Original
Master Long Form Compl. ¶ 64.) Negligent design defect claims remain actionable under
Pennsylvania law. Lance v. Wyeth, 4 A.3d 160, 165 (Pa. Super. Ct. 2010) (noting that strict liability
design defect claim differs from negligent design defect claim and that Pennsylvania recognizes no
exemption or special protection from negligent design defect claims for prescription drug makers).
This Court’s previous remand opinion discussed the possibility of Mylan being liable for negligence
and the Mylan Defendants are not entitled to seek a reconsideration of that decision under the guise
of a removal notice. It will suffice for the Court to conclude, once again, that Plaintiffs’ allegations
satisfy this Court that their claim against Mylan for a negligent design defect (a recognized and nonpreempted claim under Pennsylvania law) is not wholly insubstantial and frivolous.
IV.
CONCLUSION
The Supreme Court decision in Mensing provided the Mylan Defendants a possible basis for
the preemption of some of Plaintiffs’ claims; it did not make these cases removable because
Plaintiffs continue to press colorable claims against Mylan. The Mylan Defendants cannot meet the
stringent standard required for removal here and thus this Court grants the motion to remand.3
An Order consistent with this Memorandum will be docketed separately.
3
In at least one case, Reese, the decedent is from Pennsylvania. Because Mylan is a
citizen of Pennsylvania, this Court lacks subject matter jurisdiction given the absence of
complete diversity. The forum defendant rule that serves as the basis for remand of the bulk of
these cases is a procedural, not a jurisdictional rule. See Hutchins v. Bayer Corp., Civ. A. No. 08640, 2009 WL 192468, at *6 (D. Del. Jan. 23, 2009).
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