Williams v. Purdue Pharma Co., Civil Action No. 02-0556 (RMC) (D. D.C. 2/27/2003)
| Decision Date | 27 February 2003 |
| Docket Number | Civil Action No. 02-0556 (RMC). |
| Parties | WILLIAMS, et al., Plaintiffs, v. PURDUE PHARMA CO., et al. Defendants. |
| Court | U.S. District Court — District of Columbia |
This matter comes before the court on plaintiffs' motion to remand this matter to the Superior Court of the District of Columbia, where plaintiffs first filed suit. Defendants, having removed the case to federal court, oppose remand. Upon consideration of the brief in support of the motion, defendants' opposition, plaintiffs' reply and defendants' surreply,1 the underlying complaint and the applicable law, the motion to remand is denied.
Robert Williams and Clifford Perry have sued Purdue Pharma Company, Purdue Pharma LP, Purdue Pharma, Inc., Purdue Frederick, P.F. Laboratories, Inc. [collectively "Purdue"], Abbott Laboratories and Abbott Laboratories, Inc. [collectively "Abbott"] for class relief, injunctive relief, refunds, and damages arising from the purchase or receipt of the pain medication OxyContin® ["OxyContin"].2 Messrs. Williams and Perry seek to represent a class defined as "[a]ll persons who purchased or received OxyContin in the District of Columbia by prescription from 1995 to the present." The complaint was first served on Abbott on March 1, 2002, and the defendants timely filed a Notice of Removal, pursuant to 28 U.S.C. §§ 1441, 1442(a) and 1446, on March 21, 2002.
In the complaint, Purdue is alleged to own the patent for OxyContin Tablets and to, inter alia, manufacture, advertise, promote, sell and distribute the drug.3 Abbott allegedly also has been engaged in the manufacture, advertisement, promotion and sale or distribution of OxyContin.4 Plaintiffs contend that the defendants aggressively marketed and promoted OxyContin through a campaign of misinformation, knowing falsehoods and fraud in violation of The District of Columbia Consumer Protection Procedures Act, D.C. CODE ANN. §§ 28-3901, et seq. ["DCCPA"].
Specifically, plaintiffs assert that OxyContin is a synthetic morphine drug that defendants have marketed as providing a "smooth and sustained pain control for 12-hour dosing intervals" with "only a negligible risk, if any, of addiction." Complaint ¶ 14. Plaintiffs maintain that OxyContin does not have the benefits and effects predicted, that it poses a great risk of addiction, and that the defendants knew these facts and ignored them. Through an alleged campaign of misrepresentation and omission, plaintiffs aver, defendants were able to inflate the price for OxyContin, leading to approximately one billion dollars in sales in the United States in 2000. A portion of the sales are alleged to have occurred in the District of Columbia. Messrs. Williams and Perry state that they were prescribed OxyContin and purchased it through pharmacies in the District of Columbia.
The plaintiffs charge defendants with violating the DCCPA (Count One) and engaging in a conspiracy to violate the DCCPA (Count Two). With respect to Count One the complaint asserts,
Through their misleading marketing campaign, Defendants have violated the DCCPA, and are liable for a refund of all moneys acquired, for treble damages, or $1,500 per violations [sic], whichever is greater, and any additional legal and equitable relief as deemed appropriate by this Court.
Complaint ¶ 60. In addition, the complaint seeks punitive damages. Complaint ¶ 61. Count Two alleges a conspiracy among the defendants to use unfair, fraudulent and deceptive business practices and thereby to violate the DCCPA. Further, "As a direct, proximate and legal result of [these alleged] violations . . ., Plaintiffs and class members have suffered, and continue to suffer, common damages." Complaint ¶ 66. Exemplary damages are also sought on Count Two. Complaint ¶ 67.
In its prayer for relief, the complaint seeks, inter alia,
• "[A]ll equitable injunctive and monetary relief and penalties due to Plaintiffs and class members . . . including treble damages and/or the statutory penalty amount;"
• "[T]he refund of all monies spent by Plaintiffs and class members on OxyContin";
• Punitive damages;
• Interest, costs, expenses and attorneys' fees; and
• "Such other and further relief as the Court deems just and proper . . . ."
The defendants have not yet filed an answer to the complaint. Instead, as indicated above, they filed a Notice of Removal and brought the case to federal court. Now the question is whether it should stay here or be returned to Superior Court where the plaintiffs would prefer to litigate. As explained below, the Court finds that it would have had diversity jurisdiction over this matter had it originally been filed in federal court. Therefore, defendants properly exercised their statutory right of removal, and plaintiffs' motion to remand must be denied.
"Federal courts are courts of limited jurisdiction," Anile Pharmacy, Inc. v. Hoffman-Larouch, Inc., No. 99-197, 2000 U.S. Dist. LEXIS 11348, at *8 (D.D.C. Feb. 1, 2000) (citations omitted), and the court must respect the jurisdiction of state courts if our system of federalism is to work properly. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). The local courts in the District of Columbia are entitled to such respect. Anile Pharmacy, 2000 U.S. Dist. LEXIS 11348, at *19. The burden is on the proponent of federal jurisdiction who must make an "affirmative showing" of the requisite jurisdictional factors. NOW v. Mut. of Omaha Ins. Co., 612 F. Supp. 100, 103 (D.D.C. 1985); see also McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936). Doubts must be resolved in favor of remand. See Anile Pharmacy, 2000 U.S. Dist. LEXIS 11348 at *19; NOW, 612 F. Supp. at 103.
A plaintiff is normally the master of his own complaint and can select his own court, even if it means forgoing remedies that might be available elsewhere. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). If the complaint satisfies the requirements of federal jurisdiction, however, a defendant has a right to have a federal court hear the matter. The defendants cited 28 U.S.C. §§ 1441, 1442 and 1446 as the bases for their removal.5
Turning first to § 1442, defendants assert, without explanation, that they are acting under an agency, or officers of an agency of the United States, in manufacturing, promoting, distributing and selling OxyContin and are therefore entitled to remove this action pursuant to § 1442(a)(1). See 28 U.S.C. § 1442(a)(1) (). The gravamen of the argument is that the pervasive regulation of OxyContin transforms the defendants, otherwise private entities, into persons acting under the auspices of a United States agency or officers of such an agency. These arguments have not had much success elsewhere6 and they are not persuasive here. Federal regulation, even intense federal regulation, does not transmogrify a private party into a federal officer. See Ajemba v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., No. 98-713, 1998 U.S. Dist. LEXIS 22297 (D.D.C. 1998) () (quotations omitted); Russell v. Baxter Healthcare Corp., No. 01-2296, 2002 U.S. Dist. LEXIS 8733, at *24-24 (E.D. LA May 10, 2002) (). Defendants therefore cannot rely on § 1442(a)(1) as a basis for removal jurisdiction.
Defendants also assert removal jurisdiction under 28 U.S.C. § 1441, which provides that "any civil action brought in a State court of which the district courts of the 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). The original jurisdiction of a federal district court is, in turn, defined by 28 U.S.C. §§ 1331 and 1332. Section 1331 grants the federal district courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Under § 1332(a), "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332(a). Defendants maintain that this action is properly in federal court on the basis of both federal question and diversity jurisdiction. The Court will address each in turn.
Defendants argue that OxyContin is so highly-regulated by the Food and Drug Administration ["FDA"] and the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq. ["FDCA"], that the plaintiffs' charges are really attacks on federal law and regulation. Therefore, defendants suggest, this suit "arises under federal law" within the meaning of § 1331. See Notice of Removal at ¶ 8 (). This argument has been rejected by various other federal courts that have considered the issue,7 and this Court finds it similarly unpersuasive. Plaintiffs do not attack the federal regulatory scheme but rather the alleged campaign by defendants to market OxyContin aggressively with misinformation and knowingly-false statements. To the extent the complaint can be read to challenge the FDA-approved warning materials included with OxyContin, such allegations do not create federal question jurisdiction under...
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