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I Case 1 :05-cv-00914-JJF Document 21 -20 Filed O1/12/2006 Page 1 of 2
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2005 U.S. Dist. LEXIS 2413, * ,
VIRGINIA STRONG, Plaintiff, v. MERCK & COMPANY, C. and DOES 1-100,
Defendants. _
Nc. C 04-5062 MHP _
‘ UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF I
CALIFORNIA
2005 LCS. Dist. LEXIS 2413 I
February 17, 2005, Decided . _
February 18, 2005, Filed
DISPOSITION: Defendants motion to stay and plain- suits, defendant now moves to stay proceedings in this
tiffs motion to remand DENIED. Further proceedings in court until the Judicial Panel on Multidistrict Litigation
this action STAYED pending the MDL Panel‘s ruling on ("MDL Panel") rules on its motion to transfer. Having _
defendant‘s motion to transfer. considered the parties' arguments and for the reasons
stated below, the court enters the following memoran-
LexisNexis(“R) Headnotes dum and order. p
· BACKGROUND ` . ‘ I
COUNSEL: [*1] For Virginia Strong, Plaintiff: Robert Defendant Merck & Company is a phmmccutical Q
;;fal:{11gAHmTy Sh“Im"‘“= The MMS Law FH*m’ San company incorporated in the state of New Jersey and I
’ ` having its principal place of business in that state. Pl.'s -p
_ . . Compl. P 3. In 1999, defendant received Food and Drug I
For Merck & Co., Inc., Defendant. Michael Kevin Admimstmtiou (NFDAH) approval to mmmfacmrc and
B1-OWH’ Reed Smlth Crosby Hmfcy LLP’ LOS Ang€lES’ market Vioxx a non-steroidal anti-inflammatory drug ’
CA; Him IOOMI Yee Red Sfmt I~LP» LOS me- xr e x The am, We. mee iterate to the pax. eee
les, CA, Steven J. Boraman, Reed Smith LLP, San Fran- that yam and defendant continued to manufacture and
°‘S°°’ CA‘ market Vioxx through September 20, 2004. ia. 1=·1> s, 13. .
_ . . Three days prior to that date, defendant disclosed the I
JUDGES MARILYN HALL PATEL Dlsmct Judge' results ofthe "APPROVe study," a clinical trial designed
OPINIONBY MARILYN HALL PATEL to evaluate the efficacy of Vioxx in preventing the recur-
` rence of colorectal polyps. Id. P 13; see also Boranian _
OPINION _ Decl. P 2. The APRROVe study revealed an increased
° risk of cardiovascular [*3] events in patients taking Vi- {
MEMORANDUM AND ORDER cxx when compared with those taking the placebo. Id. In I
ee. eixxxe. Mm. to Remind, Defendant-, $33;;; *;jrSr *`md1¤gS· ·tfrdr¤t Susprrdrd an site
Motion to Stay ' `
Plaintiff Virginia Strong filed this class action in San begagliggig \<§(i];;1;tS;f);;§ ;@?1i;if;I;n1t;BC;;Z;H2gi)h§
§?;;jS;;O$$°§__Vf§;p;1;;’1‘c(;;;If);;;1§;“§tid]m§fé t>1.·e Compl. PP 1-2. In Meier 2002, pietxarr suffered e
. . . ’ ' . . . thrombotic event that caused her to lose sight in one eye,
complaint, planitrff alleged that she and similarly situ- an in. that She mw Claims was auscd b . tm 1
ated plaintiffs suffered personal injury as a result of in- Vioxiiuig OH November 2 2004 plaintiff H1; ?1g;;_i0§
§§Stg§n;;;;X’ g§n§0l;an1:;t;CI§5cd2%%gcf§g;?§mhicizli against Merck in San Francisco County Superior Court.
moved laintiffs smc com action: to thjS’cOm_t assmjn Plaintiffs state court complaint asserted causes of action
.m_iSdicEOu based OH diversity of citiznshi ’ S8 2g for unfair competition in violation of California Business I
JUS C § § 1332 M4] NOW before thc Cougis lain- and Professions Code § 17200, false advertising in vio- p
.' ' ' . ’ ` . . P . lation of Caiybrnia Business and Professions Code § I
trffs motion to remand this action tc state court. In addr- . . .
HOD having moved pursuant to 28 US C. § 1407 to 17500, and breach of the implied warranties of fitness
tmngfer [,,,2] this action for the OS; bf comdimtm and merchantability in violation of the California Com-
rcmal mccedm S with other pugldm Vioxxmalateg mercial Code. In addition, the complaint sought certifica-
P P g P g tion of a class of plaintiffs consisting of all California
I

Case 1:05-cv-00914-JJF Document 21-20 Filed 01/12/2006 Page 2 of 2
2 ‘ Page 2
2005 U.S. Dist. LEXIS 2413, * .
residents who purchased and ingested Vioxx in the pre- MDL Panel. Defendant concedes that the decision as to .
ceding four years. whether to reach the merits of plaintiffs motion is left to ·
On November 9°» 9999 Pteette eee me em- iii. Zj°»`ii§ °il?i?Z.YI§. iZ°t5féJi°§$9"p€Kd€Zii°i9?§ I
plaint was [*4] timely removed to this court on the basis . ’ ' ’
. . . . (Wrlken, J.). As MDL Panel Rule of Procedure 1.5
of drversrty of the parties and rs now one of more than makes Clear the HUH Of a motion to transfer an action
100 Vioxx-related actions pending in the federal courts. bcfmc the ’ancl ndpi not in an Wa limit the mmal
_ Seeking to coordinate pretrial proceedings in these ac- .... E . . y. P. . ,
. . jurisdiction of the district court m which that action rs 1
tions, defendant had previously moved pursuant to 28 . . .
. pending. MDL Rule 1.5. Thus, the court must consider .
USC. § 1407 to transfer all Vroxx-related cases to a . . . .
. . . . whether 1t should exercrse 1ts inherent power to stay pro-
single drstrrct. Boraruan Dec]. P 4. On November 22, ccdm S in the intrest of hdicial ccmmm SBE B -
2004, defendant amended its motion to transfer to reflect Lcmdisgv North Am C0 2*Lg US 248 25; 81, il j
- the fact that this action was among the seventy—nine Vi- 153 57 Ct 1,63 (m36)" ` ` ’ ’ ' ` Q
oxx-related cases filed since October 22, 2004, the date ’ ` ` ` }
of its original motion. Defendant's amended motion is In exercising this discretion, the court is informed by ,
currently pending before the MDL Panel. Id. PP 4-5. the intent of the statute authorizing the coordination of e D
p1`ClZI'1t':\l p1'OCCCCl11‘lgi by tilt? MDL Pflllttl, Whltlh 1S (l11”CClZ€d
`"“'W"T'“ "`§§ ;gt j;_; rl are .. t0W31'd `[JIOIHOLIIIQ the _]l1S1 and efflclent C01"ld11Cli of the
.. §_ %;1_ , i .»I‘·? agsj ggriigrr .-·,_p&i rg vv » n ah- e. . ,, .
actrons transferred. In re Ivy, 901 F2d 7, 9 (2d Cir.
=i· 19992 i*9l (e tree Ceee rté .
s ib, r . Sess (196 3)) “ 1 .-9
.; - -i—- ri -
fg,g§;,g;, ,g“r§, The following memorandum and order §§%,.l @ ?,$,§;,%%;,,,.,,é,n ge, )
addresses both of the parties' motions. . ·*’ ¥ i s
LEGAL STANDARD ’
¢ lr ·. --¤¥- Y r ·F-"¤€.fr-Tttititzriri E: 9 .-..t f ... i
A, ,, I I - - · =···
gfmcm fu c= Em eeeee IS eemereete te 9* tedetel $2 i' ieee
eehet eehr it it misht here heee hreesht there erisihelly-
[*5] 28 USC § 1441 (rr). The removal statute is strictly Nonetheless, there are many cases in which a motion to [
construed, and the court must reject federal jurisdiction if remand will raise questions of fact or law that would not
there is any doubt as to whether removal was proper. otherwise arise in the proceedings before the MDL court.
Duncan v. Stuetzie, 76 F.3a' 1480, 1485 (9th Cir. 199tQ. See, e.g., Greene v. Wyeth, 344 FC Supp. 2d 674, 678-79 i
The defendant bears the burden of proving the propriety (D. Nev. 2004); In re Massachusetts Diet Drug Lttig.,
of removal. Id. (citing Harris v. Provident Lge & Acci- 338 F. Supp. 2d 198, 201 (D. Mass. 2004); Conroy, 325 j
dent Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994)). Thus, F. Supp. 2d at 1054. In such cases, the interest of judicial I
where removal jurisdiction is premised upon diversity of economy is best served by denying the motion to stay `
citizenship, the defendant must establish that the court and adjudicating the motion to remand in the court in
would have had original jurisdiction over the action pur- which the action is pending. See Greene, 344 F. Supp. 2d
suant to 28 US. C. § 1332, which grants district courts at 679 (declining to enter a [*8] stay and reaching the
the authority to entertain any civil action "where the merits of the plaintiffs' motion to remand); Massachu— I
amount in controversy exceeds the sum or value of S setts Diet Drug Litig., 338 F. Supp. 2d at 201 (same);
75,000, exclusive of interest and costs, and is between . . Conroy, 325 F. Supp. 2a' at 1054 (same). _ I
· °‘"Z9¥‘S.°f ‘*"ff°‘°‘" S"‘"°S· 28. US C § ’332(“)(U· In wrure there re no taxed rel-mare ree deciding whether
determining whether these requirements have been met, . . . , . . .
nth . . . a stay rs appropriate, this courts recent opinion rn Con- t
e status of the case as disclosed by the plamtrffs com- .
. . . ,, roy found the procedure set forth in Meyers v. Bayer AG,
plamtrs controllmg. Sr. PauiMercu1y Indem. Co. v. Red M3 F S . ,, ,, . .
. upp 2d 1044 (ED. Wis. 2001), helpful usr 1ts
Cab Co., 303 US. 283, 291, 82 L. Eat 845, 58 S. Ct. 586 1 . .
(1938) ana ysrs. -C0nroy, 325 F. Supp. 2d at 1053. Vifhrle Con-
' roy describes this procedure as "three—step approach," id.,
in fact the approach boils down to two factors that a _
DISCUSSION icourt mpst consgder beglore deferring to the 3/IDL cotrlprt .
, . or reso ution o a pen 'ng motion to reman . First, e
I` [*6] Dafcndantshdotlon to Stay court should consider whether the jurisdictional issue
Before entertaining plaintiffs motion to remand, the appears "factually or legally difricult." Id. lf so, the court ‘ ·
court must consider defendant's request to stay this ac- should look to the second factor and determine whether j
tion while its motion to transfer is pending before the "identical or similar jurisdictional issues have been