Rodney Guilbeau v. Pfizer Inc., No. 17-2056 (7th Cir. 2018)

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United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 January 19, 2018 Before WILLIAM J. BAUER, Circuit Judge DAVID F. HAMILTON, Circuit Judge SARA L. DARROW, District Judge * No. 17-2056 IN RE: TESTOSTERONE REPLACEMENT THERAPY PRODUCTS LIABILITY LITIGATION RODNEY GUILBEAU, et al., Plaintiffs-Appellants, v. PFIZER, INC. and PHARMACIA & UPJOHN COMPANY, LLC, Defendants-Appellees. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. MDL No. 2545 Master Docket Case No. 1:14-cv-01748 Matthew F. Kennelly, District Judge. ORDER In the multidistrict litigation docket that gave rise to this appeal (MDL No. 2545), the district court dismissed all cases with prejudice that involved the above-named defendants, Pfizer, Inc. and Pharmacia & Upjohn Company, LLC, the makers of the drug * Of the Central District of Illinois, sitting by designation. No. 17-2056 Page 2 Depo-Testosterone. 1 Some of the more than one thousand individual cases subject to this appeal were resolved by final judgments, see Master Dkt. Nos. 1824, 1969, while others were resolved by partial final judgments pursuant to Fed. R. Civ. P. 54(b), see Master Dkt. Nos. 1865, 1970. By separate opinion issued today, we affirm the district court’s decisions with respect to both the defendants’ preemption defense and the denial of discovery on the preemption defense. In the course of briefing this appeal, however, the parties have since noted the lack of complete diversity of citizenship in forty of the cases affected by these District Court orders. The list of these cases, contained in Appellate Dkt. 15-1, is reproduced below. In each case, there is at least one defendant who is a citizen of the same state as the plaintiff, which would ordinarily deprive the federal courts of subject matter jurisdiction. See 28 U.S.C. § 1332(a),(c); McCready v. eBay, Inc., 453 F.3d 882, 890–91 (7th Cir. 2006) (noting complete diversity requirement). Though some cases may involve only one (non-diverse) defendant, it is possible that some of these cases may be properly brought against remaining diverse defendants and that the non-diverse defendants could and should be dismissed to preserve subject matter jurisdiction. It would be possible in theory for us to take these forty cases one by one to decide whether the non-diverse defendants are dispensable parties who should be dismissed on appeal. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989); 28 U.S.C. § 1653 (allowing amendment of defective jurisdictional allegations in both trial and appellate courts). Given the number of these cases, the paucity of relevant information before us, and the district court’s much greater familiarity with the details of the litigation and its effective management, we think the better course is to have the district court sort out these jurisdictional problems with more detailed assistance from counsel. Accordingly, due to a lack of complete diversity of citizenship, the final judgments or partial final judgments entered by the district court in the cases listed below are VACATED and REMANDED for proceedings consistent with this order and the accompanying opinion issued in this appeal, No. 17-2056. 1 The district court explained its conclusions in several case management orders issued March 7, 2016, March 30, 2017, April 18, 2017 and May 26, 2017. See Master Dkt. Nos. 1211, 1824, 1865, 1969, 1970. No. 17-2056 Page 3 CASES AFFECTED Plaintiff/District Court Case No. Plaintiff’s Citizenship Non-Diverse Defendant(s) to be Dismissed Master Docket Document Ordering Dismissal Final Judgment Cases Evans, Sr. Glenn E., 16-cv-3668 CA Puryear, David, 16-cv-3650 CA Barrett, Thomas, 16-cv-7627 MI Bowen, III, Clinton, 16-cv-8749 MI Dougherty, Michael, 15-cv-2824 MI Dunn, Lawrence, 16-cv-1363 MI Gomez, Luiz C., 16-cv-10157 MI Hampton, Duane, 15-cv-9564 MI Knight, Andre L., 16-cv-6039 MI Lewis, Russell, 15-cv-8889 MI McKesson Corporation McKesson Corporation Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC 1824 1824 1824 1824 1824 1824 1824 1824 1824 1824 No. 17-2056 Page 4 Lockner, Steven, 16-cv-8912 MI Mangas, Brian, 16-cv-7617 MI McClerkin, Duncan, 15-cv-4757 MI Morgan, Michael, 15-cv-6038 MI Naragon, Robert C., 15-cv-6546 MI Orzel, John F., 15-cv-11598 MI Patrick, Tony N., 16-cv-4578 MI Sawyers, Dennis, 15-cv-7590 MI Stapples, Herman, 15-cv-11418 MI Craig, Michael A., 17-cv-1451 MI Fleeger, David, 17-cv-465 MI Griffith, Gary, 17-cv-558 MI Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC 1824 1824 1824 1824 1824 1824 1824 1824 1824 1969 1969 1969 No. 17-2056 Hitz, Frank F., 17-cv-685 Page 5 MI Pharmacia & Upjohn Company LLC 1969 Rule 54(b) Cases Canion, Thomas, 15-cv-6448 Henderson, Ronald E., 16-cv1527 Johnson, Ralph Derrell, 16-cv1277 GA GA GA Linkous, Brian K., 16-cv-7186 GA Tallevast, John, 16-cv-1772 GA Thompson, Roger, 16-cv-1716 GA Crawford, Edward Lee, 16-cv1397 Gagnier, Peter T., 16-cv-1349 Jackson, Roosevelt, 16-cv-1158 AbbVie Products LLC AbbVie Products LLC AbbVie Products LLC AbbVie Products LLC AbbVie Products LLC AbbVie Products LLC 1865 1865 1865 1865 1865 1865 FL Anda, Inc. 1865 FL FL Anda, Inc. Anda, Inc. Besins Healthcare Inc. Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC Pharmacia & Upjohn Company LLC 1865 1865 King, John, 16-cv-3194 VA Baggett, Dennie, 16-cv-7404 MI Coursen, Michael, 16-cv-2676 MI Harte, Patrick, 16-cv-3946 MI Howse, Jr., John, 16-cv-1521 MI 1865 1865 1865 1865 1865 No. 17-2056 Page 6 Sutphin, Anthony, 16-cv-4485 MI Barton, Terry, 17-cv-2262 Coffey, Robert J., 17-cv-626 FL FL Pharmacia & Upjohn Company LLC Anda, Inc. Anda, Inc. 1865 1970 1970

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