Loretta_Little_et_al_v_Pfizer_Inc_et_al., 2017 WL 3412300 (N.D. Cal. Aug. 9, 2017).
In this action involving claims from the plaintiffs in several lawsuits, the United States District Court, Northern District of California (the “District Court”), while remanding the cases to state court, found the plaintiffs have the ability to avoid jurisdiction by filing separate complaints naming less than 100 plaintiffs and by not moving for or otherwise proposing joint trial in the state court. The District Court further held a proposal for a joint trial made by one plaintiff cannot in effect bind another plaintiff if he or she has not made a proposal for a joint trial.
The plaintiffs in related cases originally filed their complaints in California state court alleging Lipitor, a prescription drug developed and manufactured by the defendant Pfizer, Inc. (“Pfizer”), and marketed and distributed by the defendant McKesson Corporation (“McKesson”), caused them to develop type 2 diabetes.
Pfizer removed the cases to federal court, asserting diversity jurisdiction and Class Action Fairness Act’s (“CAFA”) mass action jurisdiction. Following removal, the instant case and four related cases, along with other cases not before the District Court were transferred to the Lipitor MDL in the District of South Carolina, which determined that diversity jurisdiction did not exist. The MDL court recommended the Judicial Panel on Multidistrict Litigation (“JPML”) to remand the actions to the transferor courts to decide the CAFA mass action issue. The JPML thus transferred the five related cases back to the District Court, and the plaintiffs’ moved to remand. The District Court granted the motions to remand in all five cases.
The parties agreed to a stay pending a decision by Judge Carney of the United States District Court, Central District of California, on the CAFA mass action issue. Judge Carney issued his decision granting the plaintiffs’ motion to remand concluding that while there had been some proposals for a joint trial by some plaintiffs via the Judicial Council Coordinated Proceeding, those plaintiffs numbered fewer than 100. The District Court ordered Pfizer to show cause as to why there should not be a remand of the five cases.
Pfizer argued the plaintiffs in the five cases before the District Court did not have to make a proposal for a joint trial themselves in order for them to be counted as part of the 100 plaintiffs needed for the CAFA mass action provision. Pfizer stated that Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218, 1223 (9th Cir. 2014) summarily reversed the remand orders not only in cases identified in the coordination petition, but also in all other related cases filed in California, regardless of whether or not the plaintiffs at issue had filed a petition for coordination or add-on petition at the time of removal. The District Court, however, found that the issue of whether the 100-plaintiff threshold had been met was never raised, argued, or addressed in Corber, which only analyzed the narrow question of whether the language of the coordination petitions was sufficient to constitute proposals for a joint trial. Pfizer argued the issue was not addressed in Corber because there was no basis for plaintiffs to dispute from the record the proposal for joint trial applied to all plaintiffs. The District Court, however, found that it was entirely speculative as to why the plaintiffs in Corber did not argue the 100-plaintiff threshold had not been met.
Next, Pfizer argued the Ninth Circuit in a subsequent decision simply defined a proposal for a joint trial as a voluntary, affirmative, and intentional act, and that Judge Carney implicitly went against this standard by holding that an act that is administrative in nature is not enough to be a proposal. The District Court, however, found that Judge Carney used the phrase “administrative in nature” in the context that Pfizer had argued that numerous plaintiffs had proposed a joint trial by checking the box on the civil cover sheets attached to their complaints that the case was complex because it was subject to coordination with related pending actions. The District Court found that Judge Carney rejected the argument, stating those actions were all administrative in nature and merely alerted the clerk’s office to the possibility of coordination in order to assist with case sorting and management, and did not constitute voluntary and affirmative acts by each plaintiff to be part of and bound by a proposal for a joint trial. The District Court thus opined Judge Carney’s decision did not turn on whether checking the box was administrative in nature but that there was not a sufficiently clear proposal for a joint trial.
Finally, Pfizer argued a proposal for a joint trial made by one plaintiff can in effect bind another plaintiff even if he or she has not made a proposal for a joint trial; in other words, the consent of the latter plaintiff is not required. The District Court, however, opined Pfizer’s “no consent” argument failed to take into account the Ninth Circuit case law emphasizing a plaintiff is the master of his or her complaint. The District Court found there are many legitimate reasons why a plaintiff would not want his or her case jointly tried with other plaintiffs’ cases, and the legislative history suggests that consent is needed. The District Court further found in Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014), the Supreme Court indicated that “a mass action must involve monetary claims brought by 100 or more persons who propose to try those claims jointly as named plaintiffs.” (Editor’s Note: see the CAFA Law Blog analysis of Hood v. AU Optronics Corp posted on October 8, 2014.)
Accordingly, the District Court granted the plaintiffs’ motions to remand.