Engh v. SmithKline Beecham Corporation d/b/a GlaxoSmithKline, Civil No. 07-3483 (D. Minn. November 20, 2007).

Our guess is that the defendant took Paxil for depression once it received the court’s decision.  On November 20, 2007, the United States District Judge Michael J. Davis issued a Memorandum of Law is Support of the Court’s November 1, 2007 Order granting the plaintiffs’ motion to remand this class action back to Minnesota state court. 

This class action was originally filed on August 20, 2004 (long before the effective date of CAFA), involving the prescription drug Paxil and Paxil CR. Both drugs were marketed by GlaxoSmithKline (“GSK”). The plaintiffs were residents of the State of Minnesota seeking to represent a class of individuals who purchased Paxil in Minnesota, Illinois, Missouri, North Dakota and Ohio for consumption by a person under the age of 18 years. 

The plaintiffs allege that GSK misrepresented information concerning the safety and efficacy of Paxil for treating pediatric depression. The plaintiffs allege that GSK withheld and concealed negative information concerning the safety and effectiveness of Paxil as a treatment for pediatric patients. The plaintiffs claimed violations of state consumer protection provisions as well as unjust enrichment for the sale of Paxil to minors under false pretenses. 

The plaintiffs filed their Second Amended Complaint in the HennepinCounty District Court on July 23, 2007 (long after the effective date of CAFA) seeking leave to amend their complaint to move an absent class member welfare fund into the position as class representative. GSK filed its notice of removal alleging jurisdiction under ERISA, as well as CAFA. The plaintiffs responded with their motion to remand arguing that the notice of removal was procedurally defective because it was untimely filed. Additionally, the plaintiffs argued that the court lacked subject matter jurisdiction over the case and that removal was inappropriate under the provisions of CAFA.

The court began its opinion by discussing the issue of timeliness. Quickly disposing of the issue, the court held that it would not decide on the plaintiffs’ timeliness argument due to the fact that it was raised for the first time in the plaintiffs’ reply brief almost two months after the removal notice was filed.

The court then went into a lengthy discussion of ERISA and determined that there was no jurisdiction there. 

Then, the court turned its attention to CAFA. Focusing in on the issue, the court stated that CAFA only applied to civil actions that are commenced on or after February 18, 2005. State law is, of course, determinative of when a suit is commenced for CAFA’s purposes. In Minnesota, the court stated, service of a summons and complaint commences a civil action. When the plaintiff files an amended complaint in a civil action pending in state court before CAFA’s effective date, the court must determine whether the amendment relates back to the original complaint or is instead a new action. If the amendment relates back, no new civil action was commenced by the amendment, and, thus, there is no jurisdiction under CAFA. 

Citing Plubell v. Merck & Company, Inc., the court examined the change in the class representative. (Editors’ Note:  See the CAFA Law Blog analysis of Plubell posted on January 25, 2006). GSK argued that the plaintiffs’ amendment commenced a new case under CAFA, because the original complaint did not place GSK on notice of facts relevant to the new class representatives claims. The court held, however, that the plaintiffs had done nothing more than move an absent class member into the role of a named class representative. In this case, there were no changes to the plaintiffs’ allegations or causes of action and no new claims were added. Consequently, the amendment related back and there was no new civil action. The court concluded by noting that the Eighth Circuit’s case of Plubell is controlling and the court did not have jurisdiction under CAFA.