federal judge Josephine L. Staton granted

Case 8:14-cv-01331-JLS-DFM Document 19 Filed 09/29/14 Page 1 of 5 Page ID #:569
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 14-1331-JLS (DFMx)
Title: Evelyn Calvillo v. AbbVie, Inc., et al.
Date: September 29, 2014
Present: Honorable JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE
Terry Guerrero
Deputy Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:
Not Present
N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:
Not Present
PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND (Doc. 11), AND REMANDING CASE
TO ORANGE COUNTY SUPERIOR COURT, CASE NO. 302014-00732840
Before the Court is a Motion to Remand filed by Plaintiff Evelyn Calvillo. (Mot.,
Doc. 11.) Defendants AbbVie, Inc. and Abbott Laboratories, Inc. filed an Opposition,
and Plaintiff replied. (Opp’n, Doc. 16; Reply, Doc. 18.) The Court finds this matter
appropriate for disposition without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. R. 715. Accordingly, the hearing on the Motion, set for October 3, 2014, at 2:30 p.m., is
VACATED. For the reasons set forth below, the Court GRANTS Plaintiff’s Motion.
I.
Background
On July 7, 2014, Plaintiff Evelyn Calvillo filed the present action in Orange
County Superior Court. (Notice of Removal Ex. A (“Compl.”).) In the Complaint,
Plaintiff alleges that she is the surviving spouse of Samuel Calvillo, who died after using
AndroGel. (Id. ¶¶ 1-2.) AndroGel is a prescription drug used for the treatment of adult
males who have low or no testosterone. (Id. ¶ 24.) Defendants AbbVie and Abbott are
pharmaceutical companies who were involved in researching, manufacturing,
distributing, and marketing AndroGel. (Id. ¶¶ 4-5.) Defendant McKesson Corp. was also
involved in distributing and marketing AndroGel. (Id. ¶ 10.) As part of this
involvement, “McKesson printed promotional materials and inserts for Andro[G]el and
provided them to physicians in California, including [the] [d]ecedent’s physician.” (Id.)
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Case 8:14-cv-01331-JLS-DFM Document 19 Filed 09/29/14 Page 2 of 5 Page ID #:570
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 14-1331-JLS (DFMx)
Title: Evelyn Calvillo v. AbbVie, Inc., et al.
Date: September 29, 2014
Additionally, the decedent purchased AndroGel from a pharmacy in California, and
“McKesson was the distributor that supplied this pharmacy with the Andro[G]el that [the]
[d]ecedent purchased and used.” (Id. ¶ 56.)
Plaintiff further alleges that Defendants misrepresented the need for testosterone
therapy, and misrepresented and failed to warn of the dangers of AngroGel. (Id. ¶¶ 2651.) Based on these and other allegations, Plaintiff asserts claims against Defendants for
(1) strict liability – failure to warn, (2) negligence, (3) fraud, (4) fraud – concealment,
suppression, or omission of material facts, (5) negligent misrepresentation, (6) breach of
implied warranty, (7) breach of express warranty, (8) violation of California’s Consumer
Legal Remedies Act, (9) violation of California’s Unfair Competition Law, (10) loss of
consortium, (11) wrongful death, and (12) survival action. (Id. at 11-19.)
On August 20, 2014, Defendants AbbVie and Abbott removed the action to this
Court, asserting diversity jurisdiction. (Notice of Removal ¶ 5.) In their Notice of
Removal, Defendants assert that the parties are diverse because Plaintiff is a citizen of
California and AbbVie and Abbott are citizens of Delaware and Illinois. (Id. ¶¶ 12-14.)
Defendants also assert that, though McKesson is a citizen of California, McKesson’s
presence in this action does not defeat jurisdiction because McKesson was fraudulently
joined. (Id. ¶¶ 16-17.) On September 2, 2014, Plaintiff filed the present Motion.
II.
Legal Standard
When reviewing a notice of removal, “‘[i]t is to be presumed that a cause lies
outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the
contrary rests upon the party asserting jurisdiction.’” Hunter v. Philip Morris USA, 582
F.3d 1039, 1042 (9th Cir. 2009) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d
676, 684 (9th Cir. 2006)) (quotation marks omitted) (alterations in original). Courts
“strictly construe the removal statute against removal jurisdiction,” and “the defendant
always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt
as to the right of removal in the first instance.” Id. To exercise diversity jurisdiction, a
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 14-1331-JLS (DFMx)
Title: Evelyn Calvillo v. AbbVie, Inc., et al.
Date: September 29, 2014
federal court must find complete diversity of citizenship among the adverse parties, and
the amount in controversy must exceed $75,000. 28 U.S.C. § 1332(a).
III.
Discussion
In her Motion, Plaintiff argues that the Court must remand this action because
Plaintiff and McKesson are not diverse, and McKesson was not fraudulently joined.
(Pltf’s Mem. at 9-13, Doc. 11-1.) In their Opposition, Defendants argue that the Court
should decline to decide this issue and should wait for this action to be transferred and
consolidated with ongoing testosterone therapy Multi District Litigation proceedings.
(Opp’n at 4-6.) “[T]he MDL court,” Defendants assert, “will resolve jurisdictional issues
more efficiently and consistently than would piecemeal efforts by many transferor
courts.” (Id. at 5.) Defendants’ argument is unpersuasive. The jurisdictional issue
presented in Plaintiff’s Motion is not factually or legally difficult. Further, it is in the
interest of judicial economy to decide the jurisdictional issue because, if jurisdiction does
not exist, further federal resources will not be wasted. Indeed, a ruling by this Court may
relieve the Panel on Multi District Litigation from the necessity of considering Plaintiff’s
objection to the transfer of this action. (See Opp’n at 4.) The Court will, therefore,
consider Plaintiff’s Motion at this time. See Rivers v. Walt Disney Co., 980 F. Supp.
1358, 1360 (C.D. Cal. 1997) (“[A] district judge should not automatically . . . postpone
rulings on pending motions . . . upon a parties’ motion to the MDL Panel for transfer and
consolidation.”).
Assuming McKesson is a proper defendant, the Court lacks diversity jurisdiction
over this matter because Plaintiff and McKesson are both California citizens. A nondiverse defendant is deemed fraudulent, and its presence disregarded for purposes of
diversity jurisdiction, where “the plaintiff fails to state a cause of action against [the] . . .
defendant, and the failure is obvious according to the settled rules of the state.” McCabe
v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). A defendant bears a “heavy
burden” in establishing fraudulent joinder. Hunter, 582 F.3d at 1046. “The standard is
not whether plaintiff[] will actually or even probably prevail on the merits, but whether
there is a possibility that [she] may do so.” Rico v. Jones Lang LaSalle Americas, Inc.,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 14-1331-JLS (DFMx)
Title: Evelyn Calvillo v. AbbVie, Inc., et al.
Date: September 29, 2014
No. CV 14-1322-GHK JEMX, 2014 WL 1512190, *2 (C.D. Cal. Apr. 16, 2014)
(quotation marks omitted) (emphasis added). See also J.P. ex rel. Plummer v. McKesson
Corp., No. 2:13-CV-02207-TLN, 2014 WL 3890326, *2 (E.D. Cal. Aug. 7, 2014)
(“Fraudulent joinder is not evaluated under the more exacting Iqbal/Twombly pleading
standards.”).
Plaintiff alleges that McKesson distributes and markets AndroGel, and is the
distributor that provided the AndroGel used by the decedent. (Compl. ¶¶ 10, 56.) Under
California law, “[i]n a product liability action, every supplier in the stream of commerce
or chain of distribution, from manufacturer to retailer, is potentially liable.” Edwards v.
A.L. Lease & Co., 46 Cal. App. 4th 1029, 1033 (1996). Defendants have provided no
reason that this rule would be inapplicable to McKesson. Instead, Defendants argue that
Plaintiff has failed to allege a causal connection between Plaintiff’s injury and
McKesson’s conduct. (Opp’n at 7.) Plaintiff, however, alleges that McKesson printed
promotional materials and inserts for AndroGel, provided these materials to the
decedent’s physician, and provided the AndroGel used by the decedent. (Compl. ¶¶ 10,
56.) Plaintiff also alleges that Defendants misrepresented the need for testosterone
therapy, and misrepresented and failed to warn of the dangers of AngroGel. (See id.
¶¶ 26-51.)1 Based on these allegations, it is not “obvious” that Plaintiff cannot
demonstrate causality with respect to her claim for strict liability against McKesson. See
D.A. ex rel. Wilson v. McKesson Corp., No. 1:13-CV-01700-LJO, 2014 WL 202738, *5
(E.D. Cal. Jan. 17, 2014) (finding that McKesson was not fraudulently joined where
complaint alleged that McKesson supplied the pills ingested by the plaintiff at issue).
Defendants also argue that, because McKesson is not a defendant in most other
testosterone therapy cases, McKesson must not be a “necessary party” to this action.
(Opp’n at 8.) Defendants’ assertion regarding other testosterone therapy cases, even if
true, has no bearing on this action. Defendants have not provided any information
regarding the facts and circumstances of those cases, much less information
1
Because Plaintiff sufficiently alleges McKesson’s role in the marketing and distribution of
AndroGel, it is of no moment that many allegations refer to “Defendants” generally. See J.P. ex
rel. Plummer, No. 2:13-CV-02207-TLN, 2014 WL 3890326, at *3 (“[T]he fact that allegations
refer to Defendants generally does not prevent the Court from finding that there is a possibility
that Plaintiff[] could prevail on a claim against McKesson.”).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 14-1331-JLS (DFMx)
Title: Evelyn Calvillo v. AbbVie, Inc., et al.
Date: September 29, 2014
demonstrating that McKesson is not a proper party to this action. In sum, there is a
possibility that Plaintiff will be able to proceed against McKesson in state court, and
McKesson is therefore not a fraudulently joined defendant. Because complete diversity
was lacking at the time of removal, the Court must remand this action.
In her Motion, Plaintiff requests an award of attorney’s fees for Defendants’
improper removal. (Pltf’s Mem. at 12-13.) The removal statute permits the Court, upon
remand, to “require payment of just costs and any actual expenses, including attorney
fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). “Absent unusual
circumstances, courts may award attorney’s fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for seeking removal.” Martin v.
Franklin Capital Corp., 546 U.S. 132, 141 (2005). Courts in other pharmaceutical cases
have concluded that McKesson was fraudulently joined. See, e.g., Aronis v. Merck &
Co., No. CIV. S-05-0486WBSDAD, 2005 WL 5518485 (E.D. Cal. May 3, 2005). While
those cases are distinguishable, Defendants reliance on them was not objectively
unreasonable. Plaintiff’s request for fees is therefore denied.
IV.
Conclusion
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion, and
REMANDS this action to Orange County Superior Court, Case Number 30-201400732840.
Initials of Preparer: tg
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