Hood ex rel. Mississippi v. Bristol-Myers Squibb Co.
| Decision Date | 27 June 2013 |
| Docket Number | CIVIL ACTION NO. 1:12-CV-00179-GHD-DAS |
| Parties | JIM HOOD, ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, ex rel. THE STATE OF MISSISSIPPI PLAINTIFF v. BRISTOL-MYERS SQUIBB COMPANY; SANOFI-AVENTIS U.S. L.L.C.; SANOFI-AVENTIS, U.S., INC.; And SANOFI-SYNTHELABO, INC. DEFENDANTS |
| Court | U.S. District Court — Northern District of Mississippi |
Presently before the Court is Plaintiff's motion to remand [22] the case sub judice to state court for lack of subject matter jurisdiction. Defendants oppose the motion to remand. The parties have filed materials supporting their positions, and oral argument was held on April 4, 2013. Upon due consideration, the Court finds that the motion to remand should be denied, because the case was properly removed on the bases of diversity jurisdiction and jurisdiction under the Class Action Fairness Act ("CAFA").
On June 29, 2012, Plaintiff, Attorney General of the State of Mississippi ("Plaintiff"), filed suit in the Circuit Court of Chickasaw County, Mississippi against Defendants, Bristol-Myers Squibb Company; Sanofi-Aventis U.S., LLC; Sanofi-Aventis U.S., Inc.; and Sanofi-Synthelabo, Inc. (collectively, "Defendants"). In the original complaint, Plaintiff alleges that Defendants unfairly, falsely, and deceptively labeled and promoted the prescription drug Plavix® (clopidogrel bisulfate) to consumers and healthcare providers. Specifically, Plaintiff asserts that Defendants' marketing strategy was designed to replace aspirin with Plavix® as a treatment forpatients at risk of stroke and related ischemic events. Pl.'s Compl. [2] ¶ 1.1. Plaintiff alleges that Defendants ignored, concealed, and minimized clinical data and other information showing that Plavix® is only as effective as—or in some cases even less effective than—aspirin in treating such patients. Id. Plaintiff further alleges that Defendants falsely marketed Plavix® as a drug more effective than aspirin and other competitor products. Id. ¶ 1.2. Plaintiff avers that Defendants have also falsely marketed Plavix® as a more effective and safe drug for uses for which the drag had not been shown to be effective and safe. Id. ¶ 1.3. Plaintiff further avers that Defendants failed to disclose that a significant percentage of the patient population is genetically predisposed to have a substantially diminished response to Plavix® or no response at all, and that Defendants knew that disclosure of such information would lead to a reduction in the number of prescriptions written for Plavix® and thus a decline in Plavix®'s sales and revenue. Plaintiff sues exclusively under the Mississippi Consumer Protection Act (the "MCPA") and seeks several remedies, including (1) civil penalties, (2) disgorgement in equity, and (3) injunctive relief. Id. ¶¶ 1.6-1.7.
On August 17, 2012, Defendants removed the suit to this Court on the claimed bases of diversity jurisdiction, federal question jurisdiction, and/or jurisdiction under CAFA pursuant to 28 U.S.C. § 1332(d). On September 17, 2012, Plaintiff filed a motion to remand [22] the action to state court for lack of subject matter jurisdiction, as well as an amended complaint [24]. Defendants filed a response in opposition to the motion to remand. Plaintiff filed a reply in support of its motion to remand.
Meanwhile, on October 15, 2012, Defendants notified this Court of their filing with the United States Judicial Panel on Multidistrict Litigation (the "Panel") a renewed motion to transfer the action to a single judge for coordinated or consolidated pretrial proceedings pursuantto 28 U.S.C. § 1407.1 Defendants had filed a prior motion to transfer with the Panel relating to other Plavix® litigation; the Panel had denied that transfer motion on December 14, 2011. Plaintiff filed an opposition to the renewed transfer motion with the Panel. Defendants filed a motion to stay proceedings in this Court pending the Panel's transfer decision [43]; this Court granted the requested stay in a memorandum opinion [51] and Order [50] dated January 2, 2013. Subsequently, the Panel entered a Transfer Order denying the request for transfer to the United States District Court for the District of New Jersey. However, the Panel stated in the Order that the Panel was in agreement with Defendants that the litigation had expanded dramatically since the initial denial of the transfer request and denied without prejudice the transfer request, to await rulings on the motions to remand pending in several transferor courts, including this Court.
On April 4, 2013, this Court held a hearing on the pending motion to remand. On June 7, 2013, the Panel entered a Conditional Transfer Order ("CTO") stating that the case sub judice, along with several others, would be transferred to MDL, because the cases "involve questions of fact that are common to the actions previously transferred" to the MDL court. While the CTO was stayed the customary seven days from entry, Plaintiff timely filed a notice of opposition to MDL transfer with the Clerk of the Panel. Due to the notice of opposition, the stay will continue until further order of the Panel, during which time this Court's jurisdiction continues over the pending motion for remand. With this factual and procedural background in mind, the Court now turns to the merits of the motion to remand.
The removal statute provides in pertinent part:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts ofthe United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
28 U.S.C. § 1441(a). A case may be remanded upon a motion filed within thirty days after the filing of the notice of removal on any defect except subject matter jurisdiction, which can be raised at any time by any party or sua sponte by the court. See Wachovia Bank, N.A. v. PICC Prop. & Cas. Co., 328 F. App'x 946, 947 (5th Cir. 2009). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). Any "doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction." Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).
As stated above, the case sub judice was removed to this Court on the purported grounds of (1) diversity jurisdiction, (2) federal question jurisdiction, and (3) jurisdiction under CAFA pursuant to 28 U.S.C. § 1332(d). The Court will examine each purported ground for removal in turn.
First, Defendants argue that the action is removable based on diversity jurisdiction. At the outset, the Court addresses a threshold issue in the case: when considering whether the case is removable based on diversity, should this Court look to the original complaint or the amended complaint, which was filed the same day as the motion to remand? A plethora of case law demonstrates that the Court should look to the complaint at the time the petition for removal was filed. See, e.g., Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S. Ct. 347, 348-49, 83 L. Ed. 334 (1939) () (citations omitted); Richey v. Wal-Mart Stores, Inc., 390 F. App'x 375, 377 (5th Cir. 2010) (per curiam) (); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995) (). The Fifth Circuit explained in Cavallini:
The rationale for determining removal jurisdiction on the basis of claims in the state court complaint as it exists at the time of removal is obvious. Without such a rule, disposition of the issue would never be final, but would instead have to be revisited every time the plaintiff sought to amend the complaint to assert a new cause of action against the nondiverse defendant, all at considerable expense and delay to the parties and the state and federal courts involved. Limiting the removal jurisdiction question to the claims in the state court complaint avoids that unacceptable result, and permits early resolution of which court has jurisdiction, so that the parties and the court can proceed with, and expeditiously conclude, the litigation.
44 F.3d at 264 (footnote omitted). Based on the foregoing, this Court will look to the whole of Plaintiff's original complaint, which was the current complaint at the time the removal petition was filed, to determine whether the case is removable based on diversity jurisdiction.
To satisfy their burden to establish federal diversity jurisdiction, Defendants must show that (1) a dispute has arisen between citizens of different states, and (2) the sum or value in controversy exceeds $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332(a). The parties do not dispute that the amount in controversy is satisfied by Plaintiff's allegations in the original complaint, as Plaintiff seeks to recover civil penalties not to exceed $10,000 per statutory violation, disgorgement under the doctrine of unjust enrichment in the amount of"hundreds of millions of dollars," interest, attorney's fees, and costs. See Pl.'s Compl. [2] ¶¶ 5.1, 5.35, 9.1. The parties...
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