Jonathan Goodman United States Magistrate Judge
Plaintiff
Juan Abreu filed this putative class-action lawsuit against
Defendant Pfizer, Inc. based on claims surrounding
Defendant's production and voluntary recall of Chantix, a
drug developed to assist individuals with combatting nicotine
addiction. [ECF No. 1]. Within a month of Plaintiff's
Complaint being filed, Defendant filed a Motion to Change
Venue, seeking to transfer this matter to the Southern
District of New York, where it contended an earlier-filed
class-action lawsuit is pending. [ECF No. 9].
The
Undersigned previously entered an Order granting
Defendant's motion under the first-to-file rule. [ECF No
37]. Plaintiff filed objections which he also asked be
treated as a motion for reconsideration, arguing, in part
that the relevant facts had changed and that the
first-to-file rule no longer applied. [ECF No. 43]. Defendant
filed a response to Plaintiff's objections [ECF No. 47]
and Plaintiff filed a reply [ECF No. 49].
Senior
United States District Judge Federico A. Moreno held a
hearing on Plaintiff's objections. [ECF Nos. 51; 53].
Following the hearing, Judge Moreno entered an Order
designating the prior Order to transfer as a Report and
Recommendations[1] and permitting “either side to move
to reconsider” the newly-designated Report and
Recommendations and “either party to file a motion to
transfer under 28 U.S.C. § 1404.” [ECF No. 52].
As
allowed by the Order, Plaintiff filed a Motion for
Reconsideration. [ECF No. 55]. Defendant filed a response
[ECF No. 56] and Plaintiff filed a reply [ECF No. 59].
Defendant also filed a Motion to Transfer Under 28 U.S.C.
§ 1404. [ECF No. 61]. This motion is also fully briefed
with a response [ECF No. 63] and reply [ECF No. 64].
Although
not expressly contemplated by Judge Moreno's Order, MSP
Recovery Claims Series 44, LLC and MSP Recovery Claims,
Series LLC (collectively, “MSP”) filed
a Renewed Motion to Intervene to Oppose Defendant's
Motion to Change Venue. [ECF No. 55].[2] MSP filed an earlier motion
to intervene [ECF No. 20] which was denied when Judge Moreno
adopted without objection the Undersigned's Report and
Recommendations [ECF Nos. 34; 50]. MSP's renewed motion
is fully briefed with a response [ECF No. 60] and reply [ECF
No. 62].
Judge
Moreno referred to the Undersigned for a Report and
Recommendations both Plaintiff's Motion to Reconsider and
Defendant's Motion to Transfer Under 28 U.S.C. §
1404. [ECF No. 52].
For the
reasons discussed below, the Undersigned respectfully
recommends that the District Court
deny Plaintiff's Motion for
Reconsideration and grant Defendant's
Motion to Transfer Under the First-Filed Rule. The
Undersigned also respectfully recommends
that the District Court grant
Defendant's Motion to Transfer Under 28 U.S.C. §
1404.
In the
Undersigned's previous Report and Recommendations, I
summarized the relevant litigation background as follows:
This case is one of a series of putative class-action cases
filed nationwide after Defendant recalled
“Chantix,” a drug it had developed to assist
users quit smoking. Based on the Plaintiff's and
Defendant's filings [ECF Nos. 9;
18], the Undersigned has identified the following cases filed
by end-user plaintiffs since Defendant's recall of
Chantix[3]:
Harris v. Pfizer, Inc., 1:21-cv-06789 (S.D.N.Y.)
(filed August 12, 2021)
Edwards v. Pfizer, Inc., 2:21-CV-4275 (E.D. Pa.)
(filed September 29, 2021)
Jacobson v. Pfizer, Inc., 2:21-CV-7961 (C.D. Cal.)
(filed October 5, 2021)
Webb v. Pfizer, Inc., 1:21-CV-8244 (S.D.N.Y.) (filed
October 6, 2021)
Seeley v. Pfizer, Inc., 3:21-CV-7892 (N.D. Cal.)
(filed October 7, 2021)
Duff v. Pfizer, Inc., 2:21-CV-1350 (W.D. Pa.) (filed
October 8, 2021)
Abreu v. Pfizer, Inc., 0:21-CV-62122 (S.D. Fla.)
(filed October 12, 2021)
Evans v. Pfizer, Inc., 3:21-CV-1263 (S.D. Ill.)
(filed October 15, 2021)
Houghton v. Pfizer, Inc., 1:21-CV-23987 (S.D. Fla.)
(filed November 12, 2021)
In addition to these nine class action cases, MSP also filed
a putative class action lawsuit against Defendant, seeking to
represent itself and similarly situated third-party payors.
MSP's lawsuit is currently pending in the Southern
District of Florida with United States District Court Judge
Roy K. Altman: MSP Recovery Claims Series 44, LLC v.
Pfizer Inc., No. 1:21-CV-23676 (S.D. Fla.) (filed
October 19, 2021). Based on the representations of Plaintiff
and MSP, this is the only third-party payor lawsuit against
Pfizer currently pending. [ECF Nos. 18; 20; 29].
The majority of these cases have been stayed pending the
resolution of Defendant's motion to transfer.
Collectively, the universe of plaintiffs are represented by
three law firms:
Bursor and Fisher, P.A.
Harris v. Pfizer, Inc., 1:21-cv-06789 (S.D.N.Y.)
(filed August 12, 2021)
Houghton v. Pfizer, Inc., 1:21-CV-23987 (S.D. Fla.)
(filed November 12, 2021) (stayed [1:21-CV-23987 (S.D. Fla.)
ECF No. 11][4])
Honik LLC
Edwards v. Pfizer, Inc., 2:21-CV-4275 (E.D. Pa.)
(filed September 29, 2021) (stayed [2:21-CV-4275 (E.D. Pa.)
ECF No. 6])
Jacobson v. Pfizer, Inc., 2:21-CV-7961 (C.D. Cal.)
(filed October 5, 2021) (voluntarily dismissed after stay
denied [2:21-CV-7961 (C.D. Cal.) ECF Nos. 22; 23])
Webb v. Pfizer, Inc., 1:21-CV-8244 (S.D.N.Y.) (filed
October 6, 2021) (stayed [1:21-CV-8244 (S.D.N.Y.) ECF No.
13])
Seeley v. Pfizer, Inc., 3:21-CV-7892 (N.D. Cal.)
(filed October 7, 2021) (stayed [3:21-CV-7892 (N.D. Cal.) ECF
Nos. 16; 17])
Duff v. Pfizer, Inc., 2:21-CV-1350 (W.D. Pa.) (filed
October 8, 2021) (stayed [2:21-CV-1350 (W.D. Pa.) ECF No. 8])
Abreu v. Pfizer, Inc., 0:21-CV-62122 (S.D. Fla.)
(filed October 12, 2021) Evans v. Pfizer, Inc.,
3:21-CV-1263 (S.D. Ill.) (filed October 15, 2021) (stayed
[3:21-CV-1263 (S.D. Ill.) ECF Nos. 8; 11])
Rivero Mestre
MSP Recovery Claims Series 44, LLC v. Pfizer Inc.,
No. 1:21-CV-23676 (S.D. Fla.) (filed October 19, 2021)
Two of the three firms each represent a separate Southern
District of New York plaintiff and a separate Southern
District of Florida plaintiff. These two firms, along with
MSP's law firm, have filed a motion to consolidate their
three Southern District of Florida cases and appoint all
three firms as class counsel. [ECF No. 24]. According to
Plaintiff, all class counsel and the plaintiffs throughout
the nation have been informally coordinating and jointly
agreed that this jurisdiction and this case is the
appropriate forum within which to prosecute their claims
against Pfizer. Currently, however, all three Southern
District of Florida cases are assigned to different judges.
Pfizer, on the other hand, desires for this case to move
forward in the Southern District of New York, where
Harris was filed more than a month and a half before
Evans (the next earliest-filed case) and two months
before
this case was filed. In Harris, the plaintiff has
filed a complaint and amended complaint [1:21-cv-06789
(S.D.N.Y.) ECF Nos. 1; 24], Pfizer has filed an Answer
[1:21-cv-06789 (S.D.N.Y.) ECF No. 23], and there is a fully
briefed motion to dismiss [1:21-cv-06789 (S.D.N.Y.) ECF Nos.
30; 33; 36].
Unlike the other end-user plaintiffs, MSP is the outlier
plaintiff in that it seeks to represent “a class of
similarly situated third-party payers.” [1:21-CV-23676
(S.D. Fla.) ECF No. 1]. MSP represents the interests of
various Medicare Advantage plans and healthcare benefit
providers (collectively, “insurance carriers”)
through assignment, including the right to recover.
[1:21-CV-23676 (S.D. Fla.) ECF No. 1, ¶¶ 17-23]. A
sample of the insurance carriers who have assigned their
rights to MSP includes: Blue Cross & Blue Shield of Rhode
Island; Health First Health Plans, a central Florida
insurance carrier; EmblemHealth, a New York insurance
carrier; Summacare, an Ohio-based insurance carrier; and
Connecticare, a Connecticut based insurance carrier.
[1:21-CV-23676 (S.D. Fla.) ECF No. 1, ¶¶ 24-36].
In MSP's case, United States District Court Judge Roy K.
Altman denied MSP's request to transfer its case to
United States District Judge Federico A. Moreno, the
presiding judge in the instant case. [1:21-CV-23676 (S.D.
Fla.) ECF Nos. 7; 15].
[ECF No. 37 (footnotes in original)].
As
argued by Plaintiff during the hearing, since the Undersigned
entered the earlier Report and Recommendations that the case
be transferred to the Southern District of New York,
“the world has changed.” [ECF No. 53]. Because of
these changes, the above recitation of the facts is no longer
completely accurate. Specifically, the following relevant
events have occurred: (1) United States District Court Judge
Denise L. Cote dismissed the Harris action with
prejudice in a twenty-six-page Order [1:21-cv-06789
(S.D.N.Y.) ECF No. 39]; (2) Plaintiff's counsel, Honik
LLC, voluntarily dismissed the Webb action
[1:21-CV-8244 (S.D.N.Y.) ECF Nos 15; 16]; and (3) all three
Pfizer-related Florida cases have
been transferred to Judge Moreno [1:21-cv-23676 (S.D. Fla)
ECF No. 17; 1:21-CV-23987 (S.D. Fla.) ECF No. 15].
Plaintiff
argues, in part, that these factual developments support
reconsideration of the Undersigned's prior finding that
transfer is appropriate under the first-filed rule. Defendant
opposes this view and believes that transfer under the
first-filed rule is still appropriate. Defendant also argues
that even if transfer is no longer appropriate under the
first-filed rule, the case should still be...
