Opinion
Case No. C06-681-SC.
August 7, 2006
Catherine Valerio Barrad (SBN 168897), Justin Ma (SBN 216215), Rebecca G. Goldstein (SBN 227180), SIDLEY AUSTIN LLP Los Angeles, California, Attorneys For Defendants, AstraZeneca Pharmaceuticals LP and AstraZeneca LP.
DEFENDANTS ASTRAZENECA PHARMACEUTICALS LP AND ASTRAZENECA LP'S OPPOSITION TO PLAINTIFF'S MOTION FOR ADMINISTRATIVE RELIEF
In the guise of a procedurally improper motion for administrative relief, plaintiff's counsel seeks dismissal of the above-captioned action, bringing the number of cases on these motions in the Northern District of California to a total of 138 cases. Plaintiffs seek to avoid a multidistrict litigation which they sought to create and now no longer find attractive because of a perceived unfavorable jurist. Plaintiffs admit that upon exiting the federal forum they will refile in state courts. Several courts in this district have already denied plaintiffs' administrative motions in over 50 cases so far, and one court found that "it is clear that [plaintiffs'] maneuvering is blatant forum shopping." Exh. A, Judge Patel's order denying omnibus motion to dismiss; Exh. B, Judge Hamilton's order denying omnibus request for dismissals.
In the first part of this year, plaintiffs' counsel filed over 200 complaints against AstraZeneca Pharmaceuticals LP and AstraZeneca LP in the Northern District of California alleging claims resulting from the use of the prescription medication Seroquel. Citing the number of filed federal cases, counsel for these plaintiffs in February 2006 moved the Judicial Panel on Multidistrict Litigation ("JPML") to transfer and consolidate all pending Seroquel actions to Judge Richard Haik of the Western District of Louisiana. See Exh. C. Plaintiffs further sought continuances of case management conferences in the Northern District of California on the ground that these cases would soon be transferred to the MDL. See, e.g., Exh. D.
The JPML created MDL-1769 ( In re Seroquel Products Liability Litigation) and ordered the transfer of all cases identified by plaintiffs to Judge Anne Conway in the Middle District of Florida. See Exh. E, Transfer Order dated July 6, 2006. On July 10, 2006, the Transfer Order was filed in the Middle District of Florida, divesting all transferor courts of their jurisdiction over cases on that order. See Exh. F, docket sheet of MDL-1769. Subsequently-filed cases, including the present case, were identified as tag-along actions to MDL-1769. See Exh. G.
Apparently displeased with the selection of Judge Conway, plaintiffs' counsel dismissed cases in which AstraZeneca had not appeared, and contacted AstraZeneca's counsel to request a stipulation to dismiss without prejudice in 138 additional cases so that some or all of the transferred or tagged cases could be refiled in state courts. See Pl. Mot. at 3; see also Exh. H, email from plaintiffs' counsel; Exh. I, plaintiffs' reply brief filed in Ethel Harkins v. AstraZeneca et al., Case No. C06-0566-MMC). Without waiting for a response from defendants, plaintiffs' counsel filed administrative motions requesting dismissal under Rule 41(a)(2) for nearly all of their pending cases, acknowledging that "[s]ome Plaintiffs will proceed against AstraZeneca . . . in another forum." Pl. Mot. at 3. Plaintiffs later admitted those other forums to be "state courts in Delaware and New Jersey." Exh. I at 4. With the voluntary dismissals filed in cases in which AstraZeneca had not yet answered, plaintiffs have sought or obtained dismissal on every case in the Northern District of California that they identified to the MDL for pretrial coordination.
Plaintiffs' counsel have moved to dismiss because they want to escape the very result that they requested — coordinated proceedings in federal court — for no reason other than that the JPML did not assign the multidistrict litigation to their preferred jurist. This blatant forum shopping should not be permitted. Instead, the Court should deny plaintiff's motion and allow this case to be transferred to MDL-1769, where plaintiff can renew his motion to dismiss.
ARGUMENT
Under Rule 41(a)(2), the court should deny a motion to dismiss where the "defendant will suffer some plain legal prejudice as a result of the dismissal." Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996). The Ninth Circuit has defined legal prejudice in this context to include the "loss of a federal forum." Id. at 97; see also Roybal v. Equifax, 2006 WL 988537, at *2 (E.D. Cal. 2006) (denying plaintiffs' motion to voluntarily dismiss because doing otherwise would prejudice defendants by "depriv[ing] Defendants of the federal forum"). Here, plaintiffs shamelessly admit that they are seeking dismissal in order to refile their cases in state court so as to avoid the federal forum altogether. This loss of a federal forum — a forum which plaintiffs chose and used to create the demand for a MDL — will result in plain legal prejudice to defendants.
The legal prejudice to defendants is compounded by plaintiffs' obvious abuse of judicial process. The primary purpose of entrusting Rule 41(a)(2) dismissals to the supervision of the court is to prevent voluntary dismissals that unfairly prejudice the nonmoving party, including through vexatious litigation, forum shopping, and abuse of judicial process. 9 C. Wright A. Miller, Federal Practice and Procedure, § 2364 (2d ed. 1994); see also Stevedoring Servs. of Am. v. Armilla Int'l B.V., 889 F.2d 919, 921 (9th Cir. 1989); Esquivel v. Arau, 913 F. Supp. 1382, 1391 (C.D. Cal. 1996) (noting purpose of Rule 41(a)(2)).
Here, plaintiffs' admitted and concerted effort at forum shopping in order to circumvent the decision of the JPML is an abuse of the very judicial process they requested. Plaintiffs' tactics in having filed hundreds of lawsuits within a matter of weeks, seeking an MDL, and now seeking dismissal without prejudice of the actions because the MDL was assigned to a judge they dislike, is a "conscious, calculated, and impermissible decision to shop for a more favorable forum." Marlow v. Winston Strawn, 1993 WL 45957 (N.D. Ill. 1993) (dismissing with prejudice for "bad faith" tactics in filing a motion to dismiss without prejudice to seek a more favorable forum), rev'd on other grounds, 19 F.3d 300 (7th Cir. 1994) (reversing to permit plaintiff opportunity to withdraw motion to dismiss if plaintiff does not accept conditions imposed by court with dismissal).
Such "bad faith" forum-shopping tactics are evident in plaintiffs' admission that "[s]ome Plaintiffs may not proceed further with an Action. Some Plaintiffs will not pursue AstraZeneca, but will instead proceed against one or more co-defendants. Some Plaintiffs will proceed against AstraZeneca and/or certain other co-defendants in another forum." Pl. Mot. at 3 (emphasis added). Plaintiffs further admit that they seek to flee the federal forum and refile in "state courts in Delaware and New Jersey." Exh. I at 4.
Plaintiff's bad faith tactics are further underscored by his request for summary dismissals by administrative motion. Motions under Local Rule 7-11, which can be brought on just three days' notice, are limited to "administrative matters, not otherwise governed by a . . . Federal . . . rule." See Northern District L.R. 7-11. Plaintiffs flout the clear language of Local Rule 7-11 by explicitly seeking relief under and quoting verbatim the text of Federal Rule 41(a)(2). See Pl. Mot. at 1-2.
Plaintiff's request is particularly egregious since courts have already confirmed the "general impropriety of plaintiffs' use of an administrative motion . . . [which] fails to give the parties . . . adequate opportunity to be heard." Exh. B at 1-2 (plaintiffs' "administrative motion is not the appropriate vehicle for resolution of substantive arguments"); see also Exh. A at 2 (plaintiffs "did not notice the motion as required by Rule 41(a)(2), which by the implication of its wording indicates that a motion must be made. . . . [and] given all the circumstances surrounding this effort, it appears to be nothing more than forum shopping.").
Where, as here, plaintiff seeks relief under the Federal Rules of Civil Procedure, such relief must be obtained through a properly-noticed motion. But because the district court loses jurisdiction over an action transferred to a MDL once the JPML's transfer order is filed in the office of the clerk of the district court of the transferee district, see Illinois Mun. Ret. Fund v. Citigroup, Inc., 391 F.3d 844, 850 (7th Cir. 2004), the purpose of plaintiff's improper motion is to secure a dismissal before the MDL obtains jurisdiction. Plaintiff's procedurally improper motion should be denied on this ground alone.
Moreover, plaintiffs' counsel do not identify which of the actions "will not proceed" or as to which they have decided "not [to] pursue AstraZeneca." If counsel really knew that plaintiffs had decided not to proceed against AstraZeneca, then they would have agreed to dismissals with prejudice. Without question, those actions should be dismissed with prejudice — or the motions denied until such time as plaintiffs can identify the cases they will not pursue so that dismissals with prejudice may be entered. See, e.g., Hamm v. Rhône-Poulenc Rorer Pharma., Inc., 187 F.3d 941, 950 (8th Cir. 1999) (citing the insufficiency of plaintiff's explanation for the necessity of dismissal as one factor in determining whether to deny Rule 41(a)(2) motion); Ferguson v. Eakle, 492 F.2d 26, 29 (3rd Cir. 1974) (same).
What plaintiffs are attempting to do is nothing less than an abuse of the judicial process. Having affirmatively sought an MDL, and engaged the resources of the federal judiciary through this Court and the JPML in order to obtain it, plaintiffs now seek to avoid the MDL through mass dismissals without prejudice of all of their cases before the cases can be transferred. Such gamesmanship and abuse of process should not be permitted. Cf. Kern Oil and Refining Co. v. Tenneco Oil Co., 792 F.2d 1380 (9th Cir. 1986) (affirming denial of motion to dismiss without prejudice where movant sought to engage in impermissible forum shopping).
Rather, the MDL judge should be permitted to evaluate the requests for dismissal and to determine whether to grant them. All of the cases for which plaintiffs seek dismissal have been either transferred or tagged for transfer to MDL-1769. The plaintiffs can renew their motions to dismiss before the MDL judge, and then a single judge, responsible for the very coordination that plaintiffs sought, will be able to evaluate all of the plaintiffs' requests for dismissal at one time.
For the foregoing reasons, AstraZeneca respectfully requests that plaintiff's motion to dismiss be denied. SIDLEY AUSTIN LLP