Judith ROMO; Vincent Taldone; Robin Tayler; Margaret Taylor; Randy Taylor; Ray Teets; Lawrence Tells; Kathryn Temchack; Charles Terry; Veronica Terry; Roberta Thorne; Margaret Tivis; Linda Todd; Delores Toohey; Debra Tourville; Tsouals; Allen Turner; Carolyn Turner; Wanda Turner; Starlet Tyrone; Gloria Underwood; Henry Underwood; Janice Vanison; William Verheyen; Charles Vildibill; Sharon Wallgren; Pam Walsh; Sharon Walsh; Keesha Warrior; Latanga Washington; Darlene Watt; James Weiss; Wesley Welborne, III; Debra Wheeler; Marsha Whitt; Carolyn Whyno; Cecilia Wilckens; Sandra Wilemon; Stella Wilkerson-Clark; Joann Williams; Joyce Williams; Rose Williams; Shantas Williams; Mary Wilson; Rose Wilson; Patsy Winzey; Jimmie Wise; Ruth Wolfson; Juanita Woodson; Lynne Wysocky, single individuals, Plaintiffs-Appellees,
TEVA PHARMACEUTICALS USA, INC., Defendant-Appellant.
Argued and Submitted Aug. 30, 2013.
Karin Bohmholdt (argued), Ginger Pigott, Amy Alderfer, Greenberg Traurig, LLP, Los Angeles, CA; Lori G. Cohen, Victoria D. Lockard, Greenberg Traurig, LLP, Atlanta, GA; Elliot H. Scherker, Greenberg Traurig, PA, Miami, FL, for Defendant-Appellant.
Stuart B. Esner (argued) and Andrew N. Chang, Esner, Chang & Boyer, Pasadena, CA; Elise R. Sanguinetti, Khorrami Boucher Sumner Sanguinetti, LLP, Oakland, CA; J. Paul Sizemore, The Sizemore Law Firm, El Segundo, CA; Matthew J. Sill, The Sill Law Group PLLC, Edmond, OK, for Plaintiffs-Appellees.
Jeremy B. Rosen and Mark A. Kressel, Horvitz & Levy LLP, Encino, CA, for Amicus Curiae Chamber of Commerce of the United States and PhRMA.
Kate Comerford Todd and Tyler R. Green, National Chamber Litigation Center, Inc., Washington, D.C., for Amicus Curiae Chamber of Commerce of the United States.
James M. Spears and Melissa B. Kimmel, PhRMA, Washington, D.C., for Amicus Curiae PhRMA.
Richard A. Samp and Cory L. Andrews, Washington Legal Foundation, Washington, D.C., for Amicus Curiae Washington Legal Foundation.
Appeal from the United States District Court for the Central District of California, Philip S. Gutierrez, District Judge, Presiding. D.C. No. 5:12-cv-02036-PSG-E.
Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District Judge.[*]
Opinion by Judge RAWLINSON; Dissent by Judge GOULD.
RAWLINSON, Circuit Judge:
This case presents the issue of whether removal was proper under the " mass action" provision of the Class Action Fairness Act of 2005 (CAFA), Pub.L. No. 109-2, 119 Stat. 4 (2005), when plaintiffs moved for coordination pursuant to California Code of Civil Procedure section 404. CAFA authorizes federal removal for mass actions when " 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). Because we conclude that this CAFA jurisdictional requirement was not met under the totality of the circumstances in this case, we affirm the district court's remand order.
Defendant-Appellant Teva Pharmaceuticals USA, Inc. (Teva) appeals the district court's order remanding this case to state court. This case was one of twenty-six pending before the district court alleging injuries related to the ingestion of propoxyphene, an ingredient found in the Darvocet and Darvon pain medications, as well as in their generic brand counterparts. There are additional propoxyphene cases pending in multidistrict litigation in the Eastern District of Kentucky. See In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 780 F.Supp.2d 1379 (E.D.Ky.2011).
Propoxyphene is a pain reliever that was used in the United States to treat mild to moderate pain from 1957 through November, 2010, when drugs containing propoxyphene were taken off the market because of the Food & Drug Administration's safety concerns. Teva held the rights to the generic formulary of Darvocet and Darvon, and Plaintiffs allege that Teva was involved in all aspects of the creation, distribution, and sale of generic propoxyphene products.
To date, more than forty actions have been filed in California state courts regarding products containing propoxyphene. On October 23, 2012, a group of attorneys responsible for many of the propoxyphene actions filed a petition asking the California Judicial Council to establish
a coordinated proceeding for all California propoxyphene actions pursuant to California Code of Civil Procedure section 404. Section 404.1 provides:
Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.
After Plaintiffs' petition for coordination was filed, Teva removed the case to federal district court under ...