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Case 1:05-cv—OO914-JJF Document 21-26 Filed O1/12/2006 Page1 of 4

Case 1:05-cv-00914-JJF Document 21-26 Filed O1/12/2006 Page 2 of 4
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2005 U.S. Dist. LEXIS 2413, *
raised in other cases that have been or may be transferred the named plaintiffs and determine whether each plaintiff
to the MDL proceeding." Id. If both of these require- individually alleges damages that exceed $ 75,000. Gib- `
ments are satisfied, the court should stay the action. Id. son v. Chrysler Corp., 261 F.3d 927, 940-41 (9th Cir.
(citing Meyers, 143 FZ Supp. 2d at 1048-49; [*9] Ba'. of 2001), cert. denied, DaimlerChrysler Cargo. v. Gibson,
Trs. ofthe Teachers' Ret. Sys. of Ill. v. Worldcom, Inc., 534 USC 1104, 151 L. Ed 2d 872, 122 S. Ct. 903 (2002).
244 F Sapp. 2d 900, 903 (ND. Ill. 2002)). Otherwise, The damages that might be available to other members of
the court should entertain the motion to remand without the putative class need not be considered. Id. _
_ ‘ Wmtmg for a mlmg from the MDL Panel' Id' In the instant action, plaintiffs state court complaint
In the absence of guidance from the Ninth Circuit, seeks damages, restitution, attomeys' fees, and other
the court concludes that the factors identified by Conroy costs of suit. Pl.'s Compl. at 8 (Prayer for Relief). How-
and Meyers reflect a reasonable, common-sense ap- ever, the court need not go any further than plaintiffs
_ proach to determining whether to enter a stay in the in- request for damages to conclude that the allegations in
stant action. Here, however, logic dictates that the court her complaint satisfy the amount-in-controversy re-
should first look for any similarities between the issues quirement. The complaint plainly states that "[t]aking
raised by plaintiffs motion to re dmwapnd Htghhg marising VIOXX caused Mrs. Strong to go blind in one eye, r
otheia Vioxx- elated actions. §`t ‘l;éi , [*12] secondary to a thrombotic event," id. P 1, and
seeks “an order awarding damages to Plaintiff and Class
. ... Msmbss fm all dsmrsss ¤¤¤S·=d by r>·¤<=¤¤Si¤s
` VIOXX," id. at 8. Thus, from the face of the complaint,
it is apparent that plaintiffs claims arise from a serious
i f That in- personal injury that, if proven, would entitle her to dam-
quiry focuses on the nature of the loss suffered by the ages in excess of S 75,000.
individual plaintiff in tlns action and whether California Although (mc might think that the complaiufs un-
aw entitles her to recover damages exceeding the Juris- . .
d. . . . . ambiguous prayer for damages would end all dispute as -
- rctronal amount. Nothing about these issues involves a . . .
. ,,, to the amount m controversy, plaintiff nevertheless seeks
question of [ 10] law or fact that one would expect to . . . . .
. . . . to avoid the clear nnplicatron of her own pleadings by
arise ui other V1oxx—related cases. Accordmgly, the court . . . . ,,
. . . . asserting that she intended to limrt her recovery to eco-
sees no advantage in burdeniug an as-yet-to-be xdentrfied . ,, .
. . . . nomic damages caused by her purchase of Vioxx.
transferee court with the task of rulrng on plamtrffs re- . . _
. , . . Strong Decl. P 2; Mills Decl. P 2. In support of tlns as-
mand motion. Defendants motion to stay 1S therefore . . . . .
dcnicd semen, plaintiff submits her own declaration and the
declaration of her attorney, both of which disavow any
H- Plaintiffs Motion to Rcmand intentbto seek recovery for personal injruies. Id. How-
ever, 1n determining whether remand is appropriate, the _
The court now turns to the merits of plaintiffs mo- amount in controversy must be "determined from the
tion to remand. As noted above, the only issue raised by pleadings as they exist at the time a petition for removal
this motion is whether the damages alleged in plaintiffs is filed." Eagle v. American T el. & T el. Co., 769 F.2a'
complaint exceed the amount required to establish diver- 541, 545 (9th Cir. 1985) (citing Pullman Co. v. Jenkins,
_ sity jurisdiction. Under 28 USC § 1332, a district court 305 US. 534, 537, 83 L. Ed. 334, 59 S. Ct. 347 (1939);
may exercise jurisdiction over a diversity action only if [*13] St. Paul Mercury Indern., 303 US. at 292), cert.
"the matter in controversy exceeds the sinn or value of $ denied, 475 0 . E 2 1, 6 . _§'t. 14 5
75,000, exclusive of interest and costs." 28 U.S.C. §
1332 (ag, see rise 28 usc. 5 1441 (a)-(lv). This
"amount-in-controversy" requirement is generally satis-
fied if the damages alleged in a plaintiffs state court __ _
complaint are greater than the jurisdictional minimum.
GMS V- _Mfl¢~* 1-;**6-. 989 {Fg 5¢i4r_ 5% (9% Cin 4*995)
(PH Cmlmnly 0`,:J€V€r’ 1 t 6 P amt] S H cgamms O What is significant, however, are the causes of ac-
not conclusively [ ll] demonstrate that the sum or value . . . . .
. . ( . tron alleged 1n the complaint and the remedies available
of his or her clanns exceeds $ 75,000, the removing party u O f f I . {fi, I . WMI I . {ff tl
must demonstrate by a preponderance of the evidence p n proc 0 P ami S C alma S P zlml . $0Hcc
. . observes that monetary rel1ef under Cahfornras unfarr
that the amount-in-controversy requirement has been b . ti d f 1 d ni . mm . 1. .t d
met. Sanchez v. Monumental Life Ins. Co., 102 F.3a’ 398, tuSm€f.iL11§ac cl? an 3 Se? VE, Smg; khcsg; Elm 7
404 (9th cn. 1996). In s eine alarm, as com must rs- ° ms * °“» Om “PPJ’ °· V- OC 99 erm
view the sum or value of the claims asserted by each of COW" 29 Ca; 4th H34’ 1144 131 CHL Rpm 2d 29’ 63
P.3d 937 (2003); Chern v. Bank of Am., 15 Cal. 3d 866,

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2005 U.S. Dist. LEXIS 2413, *
875, 127 Cai. Rptr. 110, 544 P.2d1310 (1976), her com- [*15] `
plaint also includes causes of action for breach of the . . . . .
impact Wmnsss of merchantability nd sims is. E. It is us ee m seafarer for ii%i¤f»pla1s¤ffs!¤g·=:
. , . . that her injuries were caused by purchasing Vioxx
particular ptupose. Pl.s Cornpl. PP 33-41. lf plamtrff . . th I, C 1 - 8 P] . .
- .1 Wh {th I . h . tm dt _ rather thanby rngestmg edrug.P.s omp.at . arn-
prevar s on er er 0 ese c arms, s e is en e 0 re . . . . .
_ . . tiff argues that this choice of phrase evrnces an rntent to
cover consequential damages resulting from the breach . . . ,, . ,,
. . . limit her clann to _ec0nonuc damages, a term that she
[*14] of warranty, which include compensation for any . . . .
,, . . . . appears to use interchangeably with restitution. How-
[1]njury to person or property proxrmately resulting . . . . . . . . .
,, ever, this distinction 1S a b1t too facile. Indeed, rt rs horn-
. from any breach of warranty. Cal. Comm. Code § § . . .
. . . . book law that the proximate (or legal) cause of an injury
2714-2715. Despite plamtrffs belated assertion to the . ,, . . .
. . . . . . is that cause which, rn naturaland continuous sequence,
contrary, nothing in the complaint disclaims any rnten- . . .
. . . . unbroken by any efficient intervening cause, produced
tron to seek such consequential damages, mcludrng dam- th . . . .
. . , e injury . . . and without which such result would not
_ asss f¤rp¢rS¤¤¤11¤J¤¤r- nl have Oceurred," Wal: Rankin & Assoc., Inc. v. City of
Murrieta, 84 Col. App. 4th 605, 626, 101 Cul. Rptr. 2d
48 (2000) (quoting State v. Superior Court, 150 Cal.
App. 3d 848, 857, 197 Cal. Rptr. 914 (1984)). Because
nl The court also notes that at the hearing held on defendant's sale of Vioxx naturally led plaintiff to ingest
this motion, plaintiffs counsel indicated that they the drug and, thus, suffer a "thrombotic event" resulting
believed their client's "personal injury" claim to in the loss of sight in one eye as alleged in the complaint,
be time barred. The court presumes that counsel there can be no serious dispute that "purchasing" Vioxx
were referring to California’s one—year statute of is alleged to be the proximate cause of plaintiffs injury.
limitations for negligence claims that was in ef- Plaintiffs argument to the contrary is little more than an
fect at the time that plaintiffs thrombotic event attempt to [*16] substitute semantic games for sound
occurred. See Cal. Civ. Pro. § 335.1 (2001), legal reasoning that need not be seriously considered by
amended by S.B. 688 (2002). However, in spite the court.
f 1‘ t rr ` ’ th ‘ 1 — . .
iicmié is if Pr.:.2i*$;;¤g:;.;*:.:;.;t¤ xzttstazzg
plaintiffs injury could have reasonably been dis- p y . Jury P Y . y .
. . . . . purchase of Vioxx and asserts a cause of action that enti-
covered on a date outside the limitations period,
. . tles her to recover damages to compensate her for that
as would be required for defendant to prevail on a . . . . .
. . . . . . injury. Assuming the facts alleged m the complaint to be
statute of limitations defense under California
. true, these damages undoubtedly exceed $ 75,000. Fur-
law. See, e.g., Norgart v. Upjohn Co., 21 Cal. 4th . . . . . . .
thermore, nothing m the complaint disclaims plaintiffs
. 383, 397, 87 Cal. Rptr. 2d 453, 981 P.2d 79 .
(1999 WM] .t. leaf h laimiff, Cmmscl right to seek such damages. The court therefore con-
. )` cl IS imc . W y P . S cludes that defendant has met its burden of establishing
declined to pursue a negligence clarrn under such . . . .
,, . ,, . . . that the amount—rn-controversy requirement rs satisfied
a delayed discovery theory, it is possible that d denies lainuffs motion to remand
they considered the availability of consequential an P ' ·
damages upon proof of breach of warranty to be .
an adequate alternative to a negligence cause of HL Stay OfFuHhCI P1-Occcdmgs
action. It is nevertheless telling that when con- Having concluded that plaintiffs motion to remand
fronted with the possibility that the allegations in must be denied, this court continues to have jurisdiction
the complaint would, if proven, entitle their client over these proceedings. However, the court's ruling on
to recover damages greatly exceeding the $ plaintiffs motion does not affect the pendency of defen-
75,000 jurisdictional amount, the sole rationale da.nt's motion to transfer. As noted above, this court has
that counsel could identify for including the inherent power to stay proceedings "to control the dispo-
breach of warranty claims in the complaint was sition of the causes on its docket with economy of time
the availability of attorneys' fees under the perti- and effort for itself for counsel, and for litigants."
nent California statutes. In any event, the fact re- Landis, 299 US. at 254. [*17] Because further pretrial
mains that the allegations in the complaint clearly proceedings in this court would likely be duplicative of
support a claim for personal injury damages, re- any coordinated proceedings that the MDL Panel may
gardless of whether the negligence (or products deem appropriate, the court finds that the interest of judi-
liability) claim is pleaded and regardless of coun- cial economy favors staying this action pending the
sel's intent in asserting the breach of warranty MDL Panel's ruling on defendant's motion to transfer.
causes of action. The stay shall take effect upon entry of the court's order
denying plaintiffs motion to remand.

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2005 U.S. Dist. LEXIS 2413, *
CONCLUSION Dated: February 17, 2005 l l
For the reasons stated above, defendant's motion to MARILYN HALL PATEL
stay and plaintiffs motion to remand are DENIED. Upon District Jud B ‘
entry of this order, further proceedings in this action g
shall be STAYED pending the MDL Panel's ruling on United States District Court
cli}e;e1gda§nt Lgignon to transfer this action pursuant to 28 Northam District Of Califomia
l IT IS SO ORDERED. . , _ U .
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