City of Holly Springs v. Johnson & Johnson

• Decision Date: 06 August 2020
• Docket Number: CIVIL ACTION NO. 3:20-CV-205-M-P
• Parties: CITY OF HOLLY SPRINGS, Plaintiff v. JOHNSON & JOHNSON, et al., Defendants
• Court: U.S. District Court — Northern District of Mississippi

477 F.Supp.3d 547

CITY OF HOLLY SPRINGS, Plaintiff

v.JOHNSON & JOHNSON, et al., Defendants

CIVIL ACTION NO. 3:20-CV-205-M-P

United States District Court, N.D. Mississippi, Oxford Division.

Signed August 6, 2020

Carlos Eugene Moore, Moore Law Group, PC, Grenada, MS, Shirley C. Byers, Byers Law Firm, LLC, Holly Springs, MS, for Plaintiff.

Chad R. Hutchinson, Kasey Mitchell Adams, Orlando Rodriquez Richmond, Sr., Butler Snow LLP, Ridgeland, MS, for Defendants Johnson & Johnson, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc., Janssen Pharmaceutica, Inc.

J. Carter Thompson, Jr., Samuel Deucalion Gregory, Baker Donelson Bearman Caldwell & Berkowitz, Jackson, MS, for Defendants Endo Health Solutions Inc., Endo Pharmaceuticals, Inc.

Stephen Lee Thomas, Simon T. Bailey, Bradley Arant Boult Cummings LLP, Jackson, MS, for Defendants Watson Laboratories, Inc., Actavis LLC, Cephalon, Inc., Actavis Pharma, Inc.

Robert L. Gibbs, Gibbs Travis PLLC, Jackson, MS, for Defendant Mckesson Corp.

W. Thomas McCraney, III, McRaney Montagnet & Quin & Noble PLLC, Ridgeland, MS, for Defendant Cardinal Health, Inc.

Edderek Linnel Cole, Thomas W. Tardy, III, Maron Marvel Bradley Anderson & Tardy LLC, Jackson, MS, for Defendant AmerisourceBergen Corporation.

Leo Joseph Carmody, Jr., Upchurch & Upchurch, P.A., Oxford, MS, for Defendant Walgreens Boots Alliance, Inc.

J. Cal Mayo, Jr., Kate Mauldin Embry, Mayo Mallette, PLLC, Oxford, MS, for Defendant CVS Health.

J. L. Wilson, IV, Upshaw, Williams, Biggers & Beckham, LLP, Greenwood, MS, for Defendant Cassandra Hawkins, M.D.

Bertis Wayne Williams, Josh R. Daniel, Webb Sanders & Williams, PLLC, Tupelo, MS, for Defendant Liddy Pharmacy.

Kent Elliot Smith, Smith Whaley, P.L.L.C., Holly Springs, MS, Marc A. Sorin, McNabb Bragorgos & Burgess & Sorin, PLLC, Memphis, TN, for Defendant Tyson Pharmacy.

ORDER

Michael P. Mills, UNITED STATES DISTRICT JUDGE This cause comes before this court on the motion of plaintiff City of Holly Springs, Mississippi to remand this case to the Circuit Court of Marshall County. Defendants have responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that the motion is well taken and should be granted.

This action is one of thousands of related lawsuits filed against manufacturers and distributors of FDA-approved prescription opioid medications on behalf of state and local governments and others relating to alleged harms stemming from abuse of these medications. On July 20, 2020, defendants Endo Health Solutions Inc. and Endo Pharmaceuticals Inc. (collectively, "Endo") removed this case from the Circuit Court of Marshall County, Mississippi on the basis of diversity jurisdiction. The assertion of diversity jurisdiction in this case strikes this court as being quite aggressive, considering that Endo concedes that five defendants in this case—Liddy Pharmacy, Tyson Pharmacy, Robinson Pharmacy, Cassandra Hawkins, M.D., and Byhalia FamilyHealth Center—are non-diverse. Thus, it is uncontested that complete diversity of citizenship is lacking on the face of the complaint, and, yet, diversity of citizenship is the only purported basis for removing this case to federal court.

In asserting that federal jurisdiction nevertheless exists, defendants argue that the citizenship of the non-diverse medical providers and pharmacies should be ignored because they are subject to severance under Rule 21 and because they have been fraudulently misjoined. Importantly, however, defendants make it clear that they do not actually desire a ruling from this court on whether it has jurisdiction over this case. To the contrary, defendants seek for this court to essentially sit back and do nothing, secure in the knowledge that a federal MDL court will soon take this case off its docket. [Notice of removal at 3. "Though any motion to remand would be without merit, all remand questions should be resolved by the MDL court."]

An MDL court has, in fact, issued a conditional transfer order in this case, and while a final transfer order has not been entered, it seems highly likely based on this court's prior experience that, if this case is not remanded, it will eventually be transferred to the MDL court. A brief word about the MDL history of this case is in order. On December 5, 2017, the Judicial Panel on Multidistrict Litigation created a Multidistrict Litigation ("MDL") in the Northern District of Ohio for cases in which "cities, counties and states ... allege that: (1) manufacturers of prescription opioid medications overstated the benefits and downplayed the risks of the use of their opiods and aggressively marketed ... these drugs to physicians, and/or (2) distributors failed to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates." In re Nat'l Prescription Opiate Litig. , 290 F. Supp. 3d 1375, 1378 (J.P.M.L. 2017).

For jurisdiction purposes, the most important point for this court is that the MDL court is a federal court, and, if federal jurisdiction is lacking, then an MDL court likewise has no jurisdiction to hear this matter. Moreover, while defendants argue that the court should stay its ruling on the motion to remand, plaintiff urges that it be ruled upon expeditiously since federal jurisdiction is lacking and, if it is transferred to the MDL court, a ruling on the motion to remand by the MDL court could take years, if it ever occurs. Indeed, a South Carolina district court noted in 2018 that "[t]he MDL Court has issued a moratorium on all substantive filings, including motions to remand, and has indicated that it is not going to rule on any pending motions to remand at the present time." County of Anderson v. Rite Aid of S.C., Inc. , 2018 WL 8800188, at *2 (D.S.C. Aug. 20, 2018). In its motion to remand, plaintiffs argue that this moratorium remains in effect, and defendants do not contest this assertion in their response. [Plaintiff's brief at 1, citing Order Regarding Remands, In re National Prescription Opiate Litigation, MDL 2804 (N.D. Ohio Feb. 16, 2018).]

As discussed below, this court concludes that federal jurisdiction is lacking in this case, and it can discern serious fairness issues with a system whereby state court actions are improperly removed to federal court and then transferred to a federal court which has issued a moratorium on ruling on remand motions. This court believes that this is a situation which should be avoided if possible, and it has the ability to do so here. In so stating, this court notes that it has the authority to rule on pending motions at any time until the JPML issues a transfer order. Stephens v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc. , 807 F. Supp. 2d 375, 381 (D. Md. 2011) (quoting Moore v. Wyeth–Ayerst Labs. , 236 F. Supp. 2d 509, 511 (D. Md. 2002) ). Indeed, the Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation expressly provide that a conditional transfer order "does not affect or suspend orders and pretrial proceedings in any pending federal district court action and does not limit the pretrial jurisdiction of that court." R. Proc. J.P.M.L. 2.1(d).

The district court in Stephens observed that "motions to remand are particularly appropriate for resolution by this court" because if it "does not have jurisdiction over th[e] matter, then neither will the MDL court." Stephens , 807 F.Supp.2d at 381. Consistent with this view, several federal district courts have recently granted motions to remand similar opioid cases before the JPML could transfer them to the MDL court.¹ Typical of these decisions is County of Falls v. Purdue Pharma, LP , in which a Texas district court rejected misjoinder arguments in an opioid case, writing that:

This case does not present the sort of extreme case for which fraudulent misjoinder is reserved. Falls County has asserted five causes of action against both the Manufacturer and Distributor Defendants. As discussed above, the claims against each set of defendants are hardly wholly distinct or lacking any real connection; on the contrary, they raise a host of common factual and legal issues. The Court therefore finds that Falls County did not fraudulently misjoin the Manufacturer Defendants and declines to sever the county's claims against them on that basis.

County of Falls , No. 6:18-CV-47-RP-JCM, 2018 WL 1518849, at *4 (W.D. Tex. Mar. 28, 2018). Similarly, a Maryland district court recently rejected severance and misjoinder arguments in an opioid case, finding that "the County's claims against the Prescriber Defendants are factually and legally intertwined with its claims against the Manufacturer and Distributor Defendants." Anne Arundel County, Maryland v. Purdue Pharma L.P. , No. CV GLR-18-519, 2018 WL 1963789, at *5 (D. Md. Apr. 25, 2018).

For its part, this court is not irrevocably opposed to having an MDL court decide remand issues, particularly if there appears to be a strong argument for federal jurisdiction in a particular case. In such cases, there is, in fact, benefit to be gained by having a single federal court rule upon remand issues, so as to avoid inconsistent results among federal courts. In cases where federal jurisdiction is clearly lacking, however, this court believes that it has a duty to prevent a misuse of the removal process in order to create a lengthy detour into a federal MDL court and deprive a state court of the jurisdiction which rightfully belongs to it. This court concludes that this is one such case in which jurisdiction is clearly lacking, for reasons which it will presently explain.

There are several non-diverse defendants in this case, and, as noted previously, defendants’ arguments that federal jurisdiction exists are based on severance and fraudulent misjoinder theories which this court finds to be unavailing in this case. As to the severance issue, defendants write in their Notice of Removal that:

Even where the face of a

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