Opinion
1:04-cv-01956-JDT-WTL.
January 6, 2005
ENTRY ON MOTION TO LIFT STAY (DKT. NO. 12)
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Plaintiff has filed a Motion to Lift Stay to Consider Motion to Remand to State Court for Lack of Subject Matter Jurisdiction ("Motion to Lift Stay") (Dkt. No. 12) and a Motion to Remand to State Court ("Motion to Remand") (Dkt. No. 14). The Defendants have responded to the Motion to Lift Stay.
On October 28, 2004, the Plaintiff, Susan Hotseller, filed a class action complaint in the Marion Superior Court against the Defendants, Pfizer, Inc. and Warner-Lambert Company. The Complaint seeks "to recover money paid to the Defendants as a result of their alleged improper marketing scheme designed to promote `off-label' uses of the prescription drug Neurontin." (Compl. ¶ 1.) An "off-label" use is the use of a drug for a purpose not approved by the Food and Drug Administration ("FDA"). The Plaintiff alleges that she was prescribed and purchased Neurontin for the treatment of pain, an off-label use. She also alleges that the Defendants aggressively marketed Neurontin for a wide variety of off-label uses and generated enormous profits through this marketing. The Complaint asserts fraudulent concealment and claims for breach of implied warranties, unjust enrichment and negligence. The Plaintiff seeks a judgment in the amount sufficient to compensate her and the class for the alleged breaches of the implied warranties and duties, reasonable attorneys' fees, costs and "such further relief as may be proper." (Compl. at 9, 10.)
The Complaint was served on the Defendants on November 1, 2004. They filed a Notice of Removal on December 1, 2004, asserting that removal to this court was proper on the basis of federal question jurisdiction. The bases for this assertion are the allegations that the Defendants marketed, promoted and sold Neurontin in violation of federal laws, specifically the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et seq. (Notice of Removal ¶ 8.) According to the Defendants, resolution of the Plaintiff's allegations is dependent on construction and application of federal law, i.e., whether they violated the FDCA or FDA regulations.
On December 6, 2004, the Defendants filed Defendants' Motion for Stay Pending Determination of Transfer to MDL, seeking a stay of all deadlines and proceedings in this case until the Judicial Panel on Multidistrict Litigation ("JPMDL") determines whether this case will be transferred to the MDL court appointed to handle Neurontin cases. The Defendants stated that this case was "one of dozens" which had been filed in several jurisdictions involving essentially the same facts and that they had notified the JPMDL of this action, identifying it as a potential tag-along case. It was argued that the proceedings should be stayed because the case may be transferred to the MDL court. The Motion for Stay was granted by this court's Order Granting Stay Pending Determination of Transfer of Case to MDL, on December 7, 2004, before the Plaintiff had an opportunity to respond to the motion as provided by local rule.
Shortly thereafter, on December 9, the Plaintiff filed her Motion to Lift Stay along with a Motion to Remand and memorandum supporting both her Motion to Lift Stay and her Motion to Remand. The matters asserted in the Motion to Remand raise questions about this court's subject matter jurisdiction.
In Meyers v. Bayer AG, 143 F. Supp. 2d 1044 (E.D. Wis. 2001), the court established a framework for deciding whether to address a motion to remand or defer consideration of the motion pending transfer to the JPMDL. Under that framework, the court's "first step should be to make a preliminary assessment of the jurisdictional issue." Id. at 1048. If the preliminary assessment suggests that removal was improper, then the court should consider the motion to remand. Id. at 1048-49. Meyer's framework is consistent with the Seventh Circuit's recent admonition that a district court's "first duty in every suit" is "to determine the existence of subject-matter jurisdiction." Johnson v. Wattenbarger, 361 F.3d 991, 992 (7th Cir. 2004).
This court's initial assessment of the Plaintiff's Motion to Remand, memorandum and the authorities cited in her memorandum as well as the Defendants' Brief in Opposition to Motion to Lift Stay and arguments and authorities cited in the Defendants' memorandum supporting the Motion for Stay suggests that removal was improper. Therefore, the court should consider the jurisdictional issues raised by the Motion to Remand even though the Defendants are attempting to have this case transferred by the JPMDL. See Meyers, 143 F. Supp. 2d at 1048-49; see also Wisconsin v. Abbott Labs., No. 04-C-447-C, 2004 WL 2055717, at *1 (W.D. Wis. Sept. 9, 2004) (applying Meyer's framework and lifting stay of proceedings for purposes of considering motion to remand since it appeared removal was improper despite JPMDL's conditional transfer order transferring case). Lifting the stay for the purpose of deciding whether the court has subject matter jurisdiction will not result in any duplication of effort or a risk or conflicting or inconsistent rulings as between this court and the MDL court.
Accordingly, the Plaintiff's Motion to Lift Stay (Dkt. No. 12) is GRANTED and the stay entered by the December 7 Order Granting Stay is VACATED for the limited purpose of allowing briefing and consideration of the Motion to Remand. The court may benefit from any further arguments the Defendants may offer in support of jurisdiction, and they have requested an opportunity to respond to the remand motion. Thus, the Defendants will have until January 26, 2005 to respond to the Motion to Remand. The Plaintiff will have until February 7, 2005 to reply.
The stay is lifted for the purpose of considering the Motion to Remand only. The stay remains in effect for all other matters until further order of this court.