Holley v. Gilead Scis., Inc., Case No. 18-cv-06972-JST
| Decision Date | 16 October 2019 |
| Docket Number | Case No. 18-cv-06972-JST |
| Citation | 410 F.Supp.3d 1096 |
| Parties | Adrian HOLLEY, et al., Plaintiffs, v. GILEAD SCIENCES, INC., Defendant. |
| Court | U.S. District Court — Northern District of California |
Steve W. Berman, Pro Hac Vice, Anne Fornecker Johnson, Pro Hac Vice, Hagens Berman Sobol Shapiro LLP, Seattle, WA, Benjamin Lloyd Crump, Pro Hac Vice, Ben Crump Law, PLLC, Tallahassee, FL, Rio S. Pierce, Hagens Berman Sobol Shapiro LLP, Berkeley, CA, Whitney Kendall Siehl, Pro Hac Vice, Hagens Berman Sobol Shapiro LLP, Chicago, IL, Robert C. Hilliard, Hilliard & Shadowen LLP, Austin, TX, for Plaintiffs.
Joshua Eugene Anderson, Alycia Ann Degen, Debra Elaine Pole, Sidley Austin LLP, Los Angeles, CA, Daniel Adam Spira, Sidley Austin LLP, Chicago, IL, Inn-Young Park, Sidley Austin LLP, San Francisco, CA, for Defendant.
Katrina R. Ashley, Pro Hac Vice, Hilliard Martinez Gonzalez LLP, Robert Carl Hilliard, Pro Hac Vice, Hilliard & Munoz, LLP, Corpus Christi, TX, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP, Berkeley, CA.
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS FIRST AMENDED COMPLAINT
Re: ECF Nos. 91, 92
Before the Court are Defendant Gilead Sciences, Inc.'s motions to dismiss the first amended complaint ("FAC"). Gilead moves to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). ECF No. 91. It also seeks dismissal of Plaintiffs' post-approval, post-2008 failure-to-warn claims, and of Plaintiffs' fraud and consumer protection claims to the extent they rely on affirmative misrepresentations, under Federal Rules of Civil Procedure 12(b)(6) and 9(b). ECF No. 92. The Court will grant the motions in part and deny them in part.
This case concerns allegations by individuals who have taken one of more of Gilead's drugs containing tenofovir disoproxil fumarate ("TDF") – Viread, Truvada, Atripla, Complera, and Stribild – and contend that they have suffered unnecessary kidney and bone damage resulting from Gilead's failure to provide adequate warnings and its decision to develop drugs containing TDF rather than tenofovir alafenamide fumarate ("TAF"). See ECF Nos. 1, 84. Gilead filed a motion to dismiss Plaintiffs' original complaint. ECF No. 45. Granting Gilead's motion in part, the Court dismissed with leave to amend "Plaintiffs' failure-to-warn claims based on post-approval, post-2008 labeling changes" and "Plaintiffs' fraud and consumer protection claims to the extent those claims are based on misrepresentations and not omissions." ECF No. 75 at 30.1
Plaintiffs filed a timely first amended complaint. ECF No. 84. In addition to attempting to cure the deficiencies identified in the Court's order, the FAC also consolidated claims from two later-filed lawsuits: Dowdy v. Gilead Sciences, Inc. , Case No. 19-cv-0481, and Lyons v. Gilead Sciences, Inc. , Case No. 19-cv-2538. The Court had previously granted the parties' stipulations to consolidate these cases "for all pretrial purposes" and "without prejudice to or waiver of Gilead's opposition to consolidated trials in any of these cases." ECF No. 67 at 6; ECF No. 80 at 6. Gilead now moves to dismiss the consolidated FAC in its entirety for lack of subject matter jurisdiction. ECF No. 91. Gilead also argues that Plaintiffs have failed to cure the deficiencies the Court identified and seeks dismissal of the previously dismissed claims with prejudice. ECF No. 92.
"If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). A defendant may raise the defense of lack of subject matter jurisdiction by motion pursuant to Federal Rule of Civil Procedure 12(b)(1). The party asserting subject matter jurisdiction bears the burden of establishing it. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). Dismissal under Federal Rule of Civil Procedure 12(b)(6) "is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr. , 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint need not contain detailed factual allegations, but facts pleaded by a plaintiff must be "enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. While this standard is not a probability requirement, "[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal quotation marks and citation omitted). In determining whether a plaintiff has met this plausibility standard, a court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable" to the plaintiff. Knievel v. ESPN , 393 F.3d 1068, 1072 (9th Cir. 2005).
Federal Rule of Civil Procedure 9(b) requires that "a party must state with particularity the circumstances constituting fraud or mistake" but allows that "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Allegations of fraud must Vess v. Ciba-Geigy Corp. USA , 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotation marks, alteration, and citation omitted). However, "a plaintiff in a fraud by omission suit will not be able to specify the time, place, and specific content of an omission as precisely as would a plaintiff in a false representation claim," and such a claim "will not be dismissed purely for failure to precisely state the time and place of the fraudulent conduct." Falk v. Gen. Motors Corp. , 496 F. Supp. 2d 1088, 1098-99 (N.D. Cal. 2007) ; Washington v. Baenziger , 673 F. Supp. 1478, 1482 (N.D. Cal. 1987) ().
Plaintiffs assert that the Court has jurisdiction over this case under the Class Action Fairness Act of 2005 ("CAFA"), which "provides federal district courts with original jurisdiction over ‘mass actions’ if the actions meet all of the statutory requirements" under 28 U.S.C. § 1332(d). Corber v. Xanodyne Pharm., Inc. , 771 F.3d 1218, 1222 (9th Cir. 2014) (en banc); ECF No. 84 ¶ 19. They also contend that the Court has diversity jurisdiction "under 28 U.S.C. § 1332(a) for those Plaintiffs who are citizens of states other than California." Id. ¶ 20.
Gilead does not dispute diversity jurisdiction as to the non-California Plaintiffs but argues that the Court lacks CAFA jurisdiction. Although the Court previously concluded that it had such jurisdiction when it ruled on Gilead's first motion to dismiss, ECF No. 75 at 4-5, the Court is also under a continuing obligation to evaluate its own subject matter jurisdiction, Fed. R. Civ. P. 12(h)(3) (). Thus, the Court's prior ruling is not dispositive, and the Court does not construe Gilead's motion as a procedurally improper motion for reconsideration.
A mass action qualifies for federal jurisdiction under § 1332(d) if it is a civil action "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." 28 U.S.C. § 1332(d)(11)(B)(i). Gilead contends that the Court lacks jurisdiction because Plaintiffs have not proposed that their claims be tried jointly. Gilead does not "dispute that, based on Plaintiffs' allegations, Plaintiffs are sufficiently numerous, that the parties are minimally diverse, or that the individual and aggregate amount in controversy requirements are satisfied." ECF No. 91 at 10.
Plaintiffs need not "expressly request a ‘joint trial’ " to propose one. Corber , 771 F.3d at 1223. However, a "proposal" for a joint trial Briggs v. Merck Sharp & Dohme , 796 F.3d 1038, 1048 (9th Cir. 2015) (internal quotation marks and citations omitted). "[A]n implicit proposal may be found when all of the circumstances of the action, including the language of the complaint and the structure of the action, lead to the assumption that the claims will be tried jointly." Ramirez v. Vintage Pharm., LLC , 852 F.3d 324, 329 (3d Cir. 2017). When "assess[ing] whether there has been a proposal for joint trial, [courts] hold plaintiffs responsible for what they have said and done." Corber , 771 F.3d at 1223.
That Plaintiffs filed a single amended complaint is some evidence of a proposal to try claims jointly. The Ninth Circuit has found CAFA jurisdiction...
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