Greene v. Wyeth

• Decision Date: 29 October 2004
• Docket Number: No. CVN040312LRHVPC.,CVN040312LRHVPC.
• Citation: 344 F.Supp.2d 674
• Parties: Deborah GREENE, Joyce Trombley, Stephanie Gardner, Deborah Wilson, and Karen Tatomer, Plaintiffs, v. WYETH, formerly known as American Home Products Corporation; Wyeth-Ayerst Laboratories Division, a division of American Home Products Corp.; A.H. Robins Company, Incorporated; Wyeth-Ayerst Laboratories Company; American Home Products Subsidiary Holding Corporation; Wyeth Laboratories, Inc. (formerly known as Wyeth-Ayerst Pharmaceuticals, Inc., now known as Wyeth Pharmaceuticals, Inc.); Michael Panicari, M.D.; David M. Turner; and Does 1-20, inclusive, Defendants.
• Court: U.S. District Court — District of Nevada

344 F.Supp.2d 674

Deborah GREENE, Joyce Trombley, Stephanie Gardner, Deborah Wilson, and Karen Tatomer, Plaintiffs, v. WYETH, formerly known as American Home Products Corporation; Wyeth-Ayerst Laboratories Division, a division of American Home Products Corp.; A.H. Robins Company, Incorporated; Wyeth-Ayerst Laboratories Company; American Home Products Subsidiary Holding Corporation; Wyeth Laboratories, Inc. (formerly known as Wyeth-Ayerst Pharmaceuticals, Inc., now known as Wyeth Pharmaceuticals, Inc.); Michael Panicari, M.D.; David M. Turner; and Does 1-20, inclusive, Defendants.

No. CVN040312LRHVPC.

United States District Court, D. Nevada.

October 29, 2004.

COPYRIGHT MATERIAL OMITTED

David Meany, White, Meany & Wetherall, LLP, Reno, NV, for Gardner, Stephanie, Plaintiffs.

J. Jorgensen, Beckley Singleton, Chtd., Las Vegas, NV, Adam LeBerthon, Arnold & Porter, LLP, Los Angeles, CA, Adam LeBurthon, PRO HAC VICE FIRM, NO., for Wyeth formerly known as American Home Products Corp., Defendant.

J. Jorgenson, Beckley Singleton, Chtd., Las Vegas, NV, Adam LeBurthon, PRO HAC VICE NO., for Wyeth Laboratories, Inc., Defendant.

J. Jorgensen, Beckley Singleton, Chtd., Las Vegas, NV, for American Home Products Subsidiary Holding Corp., Defendant.

J. Jorgensen, Beckley Singleton, Chtd., Las Vegas, NV, Adam LeBurthon, PRO HAC VICE FIRM NO., for Wyeth-Ayerst Laboratories Company, Defendant.

J. Jorgensen, Beckley Singleton, Chtd., Las Vegas, NV, for Wyeth-Ayerst Laboratories Division, Defendant.

J. Jorgensen, Beckley Singleton, Chtd., Las Vegas, NV, for David M. Turner, Defendant.

Edward Lemons, Lemons, Grundy & Eisenberg, Reno, NV, for Michael Panicari, MD, Defendant.

J. Jorgensen, Beckley Singleton, Chtd., Las Vegas, NV, for A.H. Robins Company, Defendant.

ORDER

HICKS, District Judge.

Presently before this Court is a motion to remand (Docket No. 16) brought by Plaintiffs Deborah Greene, Joyce Trombley, Stephanie Gardner, Deborah Wilson, and Karen Tatomer ("Plaintiffs"). Defendants Wyeth, American Home Products Subsidiary Holding Corporation,¹ and Wyeth Pharmaceuticals, Inc.² (collectively the "Wyeth Defendants") have submitted an opposition (Docket No. 26), to which Plaintiffs subsequently replied (Docket No. 38). Also before the Court is the Wyeth Defendants'"Motion to Stay all Proceedings in this Court Pending Transfer to MDL 1203" (Docket No. 11). Plaintiffs have filed an opposition (Docket No. 22), and the Wyeth Defendants have submitted a reply (Docket No. 31). Upon review of the record and relevant law, the Court makes the following disposition:

FACTUAL AND PROCEDURAL BACKGROUND

The Plaintiffs' case is one among thousands of product liability cases recently brought by individuals who allege to have suffered heart valve injuries as a result of their use of the diet drugs Pondimin and Redux (hereinafter, "Fen-Phen").³ Although occasionally other defendants are named, for the most part these cases are brought against Wyeth — the company which manufactured, marketed, and sold Fen-Phen — and other Wyeth affiliates. Due to the high volume of Fen-Phen litigation across the nation, a Judicial Panel on Multidistrict Litigation (the "Panel") has been authorized, pursuant to 28 U.S.C. § 1407, to coordinate those lawsuits over which the federal courts have jurisdiction. The Panel is responsible for conditionally transferring all federal cases to the Multidistrict Litigation court, see id., which is in the United States District Court for the Eastern District of Pennsylvania (the "MDL court"). The Plaintiffs in this action originally filed their claims in state court. On June 16, 2004, the Wyeth Defendants removed the case to federal court on the basis of diversity jurisdiction. Plaintiffs' complaint stated claims not only against Wyeth and its affiliates (collectively, the "diverse Defendants"), but also against two Nevada citizens, Defendants Michael Panicari, M.D. and David M. Turner (collectively, the "non-diverse Defendants"). Therefore, on the face of the complaint it appeared that complete diversity was lacking in the case, and the Court was without jurisdiction. However, the Wyeth Defendants' notice of removal asserts that the non-diverse Defendants have been fraudulently joined in the case, and therefore cannot defeat diversity jurisdiction.

In addition to removing the case to this Court, the Wyeth Defendants gave notice of this case to the Panel and requested transfer to the MDL court. Simultaneously, the Wyeth Defendants filed a motion requesting a stay of all proceedings until such time as the Panel has had the opportunity to transfer the case. The Panel has not yet transferred the case to the MDL court, nor is it known when it will do so. Consequently, this Court continues to have jurisdiction. See Rivers v. Walt Disney Co., 980 F.Supp. 1358 (C.D.Cal.1997) (citing the Multidistrict Litigation Panel holding that "the pendency of a motion or conditional transfer order [does] not affect or suspend orders and pretrial proceedings in the district court in which the action is pending and does not in any way limit the pretrial jurisdiction of that court").

LEGAL STANDARD FOR MOTIONS TO REMAND

Under 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for any district ... where such action is pending." 28 U.S.C. § 1441(a). One instance in which the district courts of the United States have "original jurisdiction" is where there is complete diversity between the parties and the amount in controversy exceeds $75,000.

The proper procedure for challenging removal is a motion to remand, and a federal court must order remand if there is any defect which causes federal jurisdiction to fail, or if there is any defect in the removal procedure. 28 U.S.C. § 1447(c). The removal statutes are construed restrictively, and any doubts about removability are resolved in favor of remanding the case to state court. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). On a motion to remand, the removing defendant faces a strong presumption against removal, and bears the burden of establishing that removal was proper by a preponderance of evidence. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-404 (9th Cir.1996); Gaus, 980 F.2d at 567.

DISCUSSION

Several issues are presented by the motions before the Court. Initially, the Wyeth Defendants request that this Court grant their motion to stay all proceedings pending the Panel's transfer of this case to the MDL court. Staying this action would preclude the Court from ruling on Plaintiffs' motion to remand. However, if the Court opts to deny the motion to stay, two issues are posed by the pending motion for remand: (1) whether the case is subject to diversity jurisdiction and therefore properly removed to the federal court; and (2) if the case before the Court is not subject to diversity jurisdiction, whether the Court should sever the Plaintiffs who are seeking claims against the non-diverse Defendants so that those Plaintiffs' cases may be remanded to state court, while the remaining Plaintiffs with claims against only the Wyeth Defendants may proceed in federal court.

I. The Wyeth Defendants' Motion to Stay

Although the Court has jurisdiction to decide the remand issue at this time, see, e.g. Rivers v. Walt Disney Co., 980 F.Supp. 1358 (C.D.Cal.1997), the Wyeth Defendants request a stay of all proceedings until such time as the MDL court has asserted jurisdiction over the case. The Wyeth Defendants argue that the MDL court is better suited to consider the remand issue, citing in support an unpublished opinion in which the MDL court currently assigned to the Fen-Phen litigation states, without providing any detail, that it is in the best position to evaluate motions to remand such as the one brought by Plaintiffs. This Court disagrees. The central inquiry in determining whether the jurisdictional issue is more appropriately resolved by the MDL court should be whether deferring to that court would advance the interests for which the statutes authorizing multidistrict litigation were intended: "Section 1407 was intended to promote the `just and efficient conduct' of the actions transferred [to the MDL court]." See, e.g. In re Ivy, 901 F.2d 7 (2d Cir.1990) (citing H.R.Rep. No. 1130, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin. News 1898, 1900). See also Meyers v. Bayer AG, 143 F.Supp.2d 1044, 1049 (E.D.Wis.2001) (citing H.R.Rep. No. 90-1190). As explained in more detail below, this Court concludes that determination of the jurisdictional issue presented in this case will rely on examination of factual issues and interpretation of Nevada law. The Wyeth Defendants have not provided the Court any authority establishing that the MDL court has previously considered the issue of Nevada law which is raised; and, in any event, it is clear that a court within the District of Nevada is best-suited for consideration of the matter. See, e.g. Kohl v. American Home Products Corp., 78 F.Supp.2d 885, 888 (W.D.Ark.1999) (noting that the remand issue dealt with "a unique question wholly dependent on the law of the State of Arkansas"); Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft, 54 F.Supp.2d 1042, 1048 at n. 2 (D.Kan.1999) (addressing the remand issue in part because Kansas law applied). Moreover, the Court finds that the interest of expediency weighs in favor of determining the motion to remand. It is unknown when the multilitigation panel will issue a conditional transfer order to the MDL court. Even once it does so, the Plaintiffs are then provided an opportunity to contest the transfer, which will result in proceedings that further delay determination of the motion to remand. As ...