Briggs v. Merck Sharp & Dohme
| Citation | 796 F.3d 1038 |
| Decision Date | 06 August 2015 |
| Docket Number | 15–55876,15–55877,15–55874,15–55875.,Nos. 15–55873,s. 15–55873 |
| Parties | Justine BRIGGS; Catherine Citrano; John Buckley; Selestino Lovato; James Owens; Edwin Pretter; Delores Hedrick; Joe Ladner; Charlotte Peak; Bruce Rininger; Robert Rubus; Jennifer Hannan; Doris Parshall; Carol Goodwin ; Silvana Rossi; Shambre Skidmore; Ruth Studer; Wilson Thomas; Ralph Wiloughby; James Holzbaur; John Consentino, Plaintiffs–Appellants, v. MERCK SHARP & DOHME, Defendant–Appellee. Nicolette Kreis; Maria Fedorczyk; Camille Neto; Linda Mauro; Nancy Boyd; Dawn Hadry; Alexis Jackson; Gary Jones; Debra Rife; William Weber; Robert Morgan; Earl Bartlett; Roger Hall; Steven Hatfield ; Robert Ikemeier; Mary Jane Hendricks; Dina Karambasis; Laurel Royal ; Robert Dokmanovich; Rose Ann Fiorita; Mae Brooks; Peggy Young ; Carolyn McDaniel; Leroy Smith; William Bell; Sande Young; Herbert Howard; William Laplante; Patricia Hene; Peggy Richardson; Mary Brown; Ellen Allen ; Patricia Allen ; Shirley Phelps; Richard Mauro; Lisa Veit, Plaintiffs–Appellants v. Merck Sharp & Dohme Corp., Defendant–Appellee. Tracey L. Kelly; Timothy B. Kelly; Chad Kelly; Joyce E. Booth; William Booth; Cletus E. Breeden; Tim Cagle ; Jeri Bramble; Melanie Brown ; Pam Geilhner; Kim Carpenter; Barbara Collins; Aswell W. Cook; Deborah Warne; Elender McIntire; Ronald F. Cook; Kelly Jones; Andrew Cook; Doris E. Corkern; Jesse L. Fitch; Glenda R. Fitch; Valorie Harrell; Kimberly Wassana; Janice Inzalaco; Wanda Lucas; Gary L. Montgomery; Kathy M. Montgomery; Debra Patrick–Golabek; Walter Golabek; Jody Prater–Vincent; Lee Prater; Billy Joseph Prater; Bettye J. Robertson; Harold Rodgers, Jr.; Alma Hewitt; Cornell Stewart; Floretha Stewart; Edwin J. Strysko; Ruby Strysko; Marianne Mabry; Donna Lynn Duda; Brenda Thomason; Jackie Hammond; Cynthia Tomlin; Reid F. Waffle; Rose M. Waffle; Julius Whittington ; Mary Whittington; Janet M. Wood, Plaintiffs–Appellants, v. Merck Sharp & Dohme, Corp., Defendant–Appellee. Louis Johnson; Ruth Suyamakim; Aileen Segerstrom; Alfred Husk; Edith Magnabigon; Nancy Morgan; Jane Sugrue; Donna Lauricella; Judilyn Knight; Harry Schweinsberg; Joann Cortese; Brenda Cooper; Dean Johnson; Mary Fishe; Rexford Wheeler; Josephine Bastone; Marie Anselme ; Sherman Robinson ; Sylvester Allison; Todd Leonard ; Lorraine Squillante; Lois Young ; Tracy Johnson; Ross Macpherson; Julie Williams; Noor Shaikh; Marisa Sifontes; Joseph Sabia; Patricia Turner; Deborah Wells; Albert Gutierrez ; Audrey Moore, Plaintiffs–Appellants, v. Merck Sharp & Dohme, Corp., Defendant–Appellee. Rodolfo L. Martinez; Antonio Martinez; Abram S. Miller, Jr.; Danny Lenzi; Daniel Alloway; Jodi Alloway; Bruce Bradshaw; Frank S. Bradshaw; Brian J. Bradshaw; Carol L. Brown; Sophie L. Cody; Angela Castor; Tabori Debraux; Leopoldo C. Bausas; Fe B. Encina; Rosewell B. Encina; Anita Fineman; Betty J. Hobbs; Norma Kordick; Dawn Kordick; Timothy Kordick; Elizabeth B. Lawrenece; William D. Lawrenece; Kathryn L. Cowan; Carol M. Lawrenece; Patricia Mahoney; Maurine P. Bingham; Michael D. Mahoney ; Richard W. Mahoney; Kathleen Newbold; Kevin J. Mahoney; Margaret A. Hale; Elizabeth K. Olson; Deborah C. Mahoney; James R.T. Martin; Anthony Minero; Camielle Minero; David R. Moton, Sr.; Carol Rup; Christopher Rup; Mark Rup; Tracy Emmert; Louis Salcido; Milissa A. Fay; Sylvia L. Smith; Mark A. Salcido; Deidre L. Salcido; Sidney L. Salcido; Stephen A. Salcido; Louis M. Salcido; Bridgette L. Smith; Patricia L. Sanders; Lisa K. Carlson; Laurie A. Booth; Daniel Stark; Mary J. Ward; Felicia Washington; Marvolene Oliver; Annie Wade; Charlene Wasilewski; Natalie Geigle; Alexia Krane; Brenda Cox, Plaintiffs–Appellants, v. Merck Sharp & Dohme, Corp.; Merck Sharp & Dohme, Ltd., Defendants–Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Louis M. Brograd (argued), Center for Constitutional Litigation, P.C., Washington, D.C.; John M. Restaino, Jr., Restaino Siler, LLD, Denver, CO; Ryan L. Thompson (argued), Watts Guerra LLP, San Antonio, TX; John R. Lytle, Napoli Bern Ripka Shkolnik, LLP, Ladera Ranch, California; Hunter J. Shkolnik, Napoli Bern Ripka Shkolnik, LLP, New York, N.Y., for Plaintiffs–Appellants.
Maurita Elaine Horn, Douglas R. Marvin, Kristin Ann Shapiro (argued), Williams & Connolly LLP, Washington, D.C., for Defendants–Appellees.
Before: WILLIAM A. FLETCHER, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.
The Class Action Fairness Act (“CAFA”), Pub.L. No. 109–2, 119 Stat. 4 (2005), authorizes the removal to federal court of “mass actions.” 28 U.S.C. § 1332(d)(11)(A), (B). “Mass actions” are civil actions in which “monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact.” Id. § 1332(d)(11)(B)(i). The statute excludes from the “mass action” definition actions in which “the claims are joined upon motion of a defendant,” id. § 1332(d)(11)(B)(ii)(II), or in which “the claims have been consolidated or coordinated solely for pretrial proceedings,” id. § 1332(d)(11)(B)(ii)(IV).
Plaintiffs–Appellants (“plaintiffs”) in this consolidated appeal filed five separate tort cases in a California state court, each with fewer than one hundred plaintiffs. Plaintiffs alleged that they, or the deceased individuals they represent, suffered from pancreatic cancer due to their use of incretin-based therapies for diabetes, including those developed by Defendant–Appellee Merck Sharp & Dohme Corporation (“Merck”), and other defendant drug companies. At the time plaintiffs filed suit, a coordinated proceeding covering similar claims was pending in a California state court in a different county. Merck removed four of the five cases based on conventional federal diversity jurisdiction, but the district court granted plaintiffs' motions to remand. Merck then removed all five cases based on CAFA, contending that plaintiffs' statements to the court during the earlier remand proceedings converted four of the five cases into a mass action, and that the filing of the fifth case in the same state court as the other four had the same consequence. Plaintiffs moved to remand the five cases. The district court denied the motions for remand and subsequent motions for reconsideration.
This appeal presents two questions. First, were plaintiffs' petitions for permission to appeal timely? The answer depends on whether a timely motion for reconsideration of an order denying or granting a motion for remand under 28 U.S.C. § 1453(c)(1) restarts the ten-day period during which a party may file a petition for permission to appeal. We hold that it does.
Second, do these five cases, or any of them, constitute a mass action under CAFA? When plaintiffs filed the five cases, a coordinated proceeding involving similar issues and overlapping defendants was already underway in state court. Plaintiffs in four of the five cases made statements in the first federal court remand proceeding indicating that they anticipated that their cases would be joined to the existing coordinated state proceeding after remand. Some of the defendants in the cases now before us were (and are) defendants in the coordinated state proceeding; indeed, defendants initiated that proceeding. Plaintiffs in one of the five cases had petitioned unsuccessfully in state court to join the coordinated state proceeding. Despite these actions by plaintiffs, we hold that in none of the five cases did plaintiffs propose that the claims of one hundred or more persons be tried jointly.
We therefore reverse and remand with instructions to grant plaintiffs' motions to remand to state court.
Five distinct groups of plaintiffs filed suit in Superior Court for the County of San Diego during the spring and summer of 2014. The five cases are Kreis, Kelly, Johnson, Briggs , and Martinez . The complaints alleged various tort claims against manufacturers and a distributor of incretin-based drugs, including Byetta, which is manufactured and promoted by Eli Lilly and Company and Amylin Pharmaceuticals, and Januvia and Janumet, which were developed by Merck. Plaintiffs in Kreis, Johnson , and Briggs have common counsel. Plaintiffs in Kelly and Martinez have different common counsel. Each of the five cases has fewer than one hundred plaintiffs.
When plaintiffs filed their five complaints in Superior Court in San Diego, a second set of cases involving incretin-based drugs was already pending in the Superior Court for the County of Los Angeles as a coordinated state proceeding under California Code of Civil Procedure section 404. Section 404 provides:
Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.
Cal.Civ.Proc.Code § 404.1.
Eli Lilly and Amylin Pharmaceuticals initiated the state court coordinated proceeding in 2009 for the purpose of litigating claims that the drug Byetta causes pancreatitis. Judge Highberger of the Los Angeles Superior Court presides over the coordinated proceeding. We refer to the coordinated proceeding as the Byetta Judicial Council Coordinated Proceeding (“Byetta JCCP”).
The Byetta JCCP has been expanded to cover claims dealing with other incretin-based drugs, other injuries (including pancreatic cancer ), and other drug companies ...
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