Opinion
Case No. ED 12-2036 PSG (Ex)
06-09-2015
Judith Romo, et al. v. McKesson Corporation, et al.
CIVIL MINUTES - GENERAL
Present: The Honorable Philip S. Gutierrez, United States District Judge Wendy Hernandez
Deputy Clerk Not Reported
Court Reporter Attorneys Present for Plaintiff(s): Not Present Attorneys Present for Defendant(s): Not Present
Proceedings (In Chambers): Order GRANTING Defendant's motion to transfer this action to the Eastern District of Kentucky and finding that Defendant's motion to sever has been RENDERED MOOT.
Pending before the Court is Defendant's motion to transfer this action to the Eastern District of Kentucky or sever. Dkt. # 103. The Court held oral argument on the matter on June 8, 2015. After considering the papers submitted by the parties, as well as the arguments made during oral argument, the Court GRANTS Defendant's motion to transfer this action to the Eastern District of Kentucky and finds that Defendant's motion to sever HAS BEEN RENDERED MOOT.
I. Background
This is one of twenty-six cases pending before this Court regarding personal injuries relating to the ingestion of medications containing propoxyphene, which is found in the brand drugs Darvocet and Darvon as well as generic brand pain relievers ("Propoxyphene Actions"). The Propoxyphene Actions were brought against various Defendants that allegedly manufactured, marketed, distributed, and/or sold products containing propoxyphene. There are also other cases relating to Darvocet, Darvon, and propoxyphene pending in a multidistrict litigation ("MDL") in the Eastern District of Kentucky before Judge Danny C. Reeves. In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., No. 2:11-md-2226 (E.D. Ky.).
These cases were originally filed in California state court and subsequently removed to this Court under the "mass action" provision of the Class Action Fairness Act, 28 U.S.C. § 1332(d) ("CAFA"). This Court remanded the cases to California state court after finding that it did not have federal jurisdiction over the Propoxyphene Actions because it concluded that when the plaintiffs in the Propoxyphene Actions filed a Petition for Coordination in state court they did not propose to try their case jointly under the "mass action" provision of CAFA. Defendants appealed. On November 18, 2014, the Ninth Circuit issued a decision in Corber, et al. v. Xanodyne Pharm, Inc., et al., 771 F.3d 1218 (9th Cir. 2014) (en banc), holding that the Propoxyphene Actions were removable under the "mass action" CAFA provision when Plaintiff asked in state court that the cases be coordinated before "one judge . . . for all purposes." Corber, et al. v. Xanodyne Pharm., Inc., 771 F.3d 1218, 1225 (9th Cir. 2014).
The Parties explored the option of transferring these actions to the MDL before Judge Reeves pursuant to the MDL statute, 28 U.S.C. § 1407 ("§ 1407"). However, the majority of the Plaintiffs in the Propoxyphene Actions did not consent to this transfer and, therefore, the cases remain before this Court. Defendant now moves to transfer the Propoxyphene Actions to the Eastern District of Kentucky under 28 U.S.C. § 1404(a) ("§ 1404(a)"). See Mot. Alternatively, Defendant moves the Court to sever the Propoxyphene Actions under Federal Rules of Civil Procedure 21.
II. Legal Standard
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought[.]" 28 U.S.C. § 1404(a). Section 1404(a) explicitly defines three factors - the convenience of the parties, the convenience of witnesses, and the interest of justice - and the Ninth Circuit has explained that district courts may consider factors used in the forum non conveniens context:
(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof...[as well as (9)] the relevant public policy of the forum state[.]Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). The district court may also consider factors such as (10) relative court congestion, (11) "the local interest in having localized controversies decided at home," and (12) "the unfairness of burdening citizens in an unrelated forum with jury duty." Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).
The burden is on the moving party to show that transfer is appropriate. See CFTC v. Savage, 622 F.2d 270, 279 (9th Cir. 1979). Overall, § 1404(a) "is intended to place discretion in the district court to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (citation and internal quotation marks omitted).
III. Discussion
Defendant argues that the Court should transfer the Propoxyphene Actions to the Eastern District of Kentucky because doing so would be in the interests of justice and for the convenience of the parties and witnesses. See Mot. 2:18-3:2. Alternatively, it requests that the Court sever all misjoined claims in the Propoxyphene Actions because Plaintiffs do not satisfy the requirements of "permissive joinder because their claims do not arise out of the same transaction, occurrence, or series of transactions." Id. 3:12-23. The Court agrees that transferring the Propoxyphene Actions is appropriate and, therefore, declines to assess the merit of Defendant's alternative request.
A. Transfer of CAFA Mass Actions under Section 1404(a)
The Court first addresses Plaintiffs' threshold argument that the transfer of a CAFA "mass action" under Section 1404(a) is prohibited. See Opp. 1:17-2:3:3.
To support their argument, Plaintiffs rely on the language of 28 U.S.C. § 1332(d)(11)(C)(i), the CAFA "mass action" subsection which provides that "[a]ny action(s) removed to Federal court pursuant to this subsection shall not thereafter be transferred to any other court pursuant to section 1407, or the rules promulgated thereunder, unless a majority of the plaintiffs in the action request transfer pursuant to section 1407." 28 U.S.C. § 1332(d)(11)(C)(i). Transfer under § 1407 relates to MDL actions and its adequacy is determined by the Judicial Panel on Multidistrict Litigation. See 28 U.S.C. § 1407. As the CAFA "mass action" subsection makes clear, however, the restrictions apply to any transfers pursuant to § 1407 and makes no mention of transfers made pursuant to § 1404(a). See 28 U.S.C. § 1332(d)(11)(C)(i).
For the same reason, Plaintiff's argument that the MDL Court's recent holding that "cases removed solely on the basis of CAFA were not properly before the MDL Court" is not persuasive because the holding deals with transfers to the MDL, not with transfers under §1404(a). See Opp. 2:16-24 (citing In re Darvocet, Darvon, and Propoxyphene Prods. Liab. Litig., 2:11-md-2226 DCR, Dkt. # 3057 (E.D. Ky.)). Furthermore, Lexecon, in which the Supreme Court cautioned that § 1404(a) must not be used to transfer cases where Congress has expressly limited or prohibited such transfer, is inapposite. See Lexecon, Inc.v.Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 37-38 (1998) (holding that a MDL Court conducting pretrial proceedings may not invoke § 1404 to "assign a transferred case to itself for trial" when § 1407 imposes a duty "on the Panel to remand any such action to the original district 'at or before the conclusion of such pretrial proceedings'").
Therefore, while the Court agrees with Plaintiffs that transfer to an MDL is forbidden without the consent of the majority of plaintiffs in a mass action, Plaintiffs fail to persuade the Court that such prohibition applies to a venue transfer under § 1404. See Bullard v. Burlington Northern Santa Ferry Co., 2008 WL 4104355 (N.D. Ill. 2008) (transferring action removed to Federal court under CAFA "mass action" provision pursuant to Section 1404).
Accordingly, the Court now assesses whether transfer of the Propoxyphene Actions is appropriate under Section 1404.
B. Action Could Have Been Brought in the Eastern District of Kentucky
First, the Court notes that the parties in this case do not dispute that this action might have been filed in the Eastern District of Kentucky. See Mot. 5:10-6:7; Opp. 3:4-10:7. As Defendant points out, venue is appropriate in a "judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated." 28 U.S.C. § 1391(b)(2). Here, "all Plaintiffs allege harm caused by Defendant Xanodyne Pharmaceuticals, Inc., which maintains its principal place of business in Newport, Kentucky, within the Eastern District." Mot. 5:17-19. Additionally, although not dispositive, the Court also considers Defendant Xanodyne's position that while this Court has no personal jurisdiction with regard to claims by out-of-state Plaintiffs, it is subject to such jurisdiction in the Eastern District of Kentucky. See id. 5:22-6:7.
C. Interests of Justice
Second, the Court finds that the transfer of the Propoxyphene Actions to the Eastern District of Kentucky will promote the interests of justice.
Of the over a dozen factors that courts consider in this inquiry, only one could arguably weigh in favor of the Central District of California - Plaintiffs' choice of forum. Ordinarily, there is a strong presumption in favor of a plaintiff's choice of forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 265-66 (1981). This presumption, however, is not applicable in this case for two related, but distinct reasons.
A "plaintiff's choice of forum is given much less weight in ruling on a discretionary transfer motion" "where plaintiff has commenced the action in a forum that is not his residence." Mason v. Telefunken Semiconductors Am., LLC, 2012 WL 6652496, at *1 (N.D. Cal. 2012); see also Pac. Car & Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968) ("[I]f the operative facts have not occurred within the forum of original selection and that forum has no particular interest in the parties or the subject matter, the plaintiff's choice is entitled only to minimal consideration."). Here, not all Plaintiffs are citizens of California and they have failed to identify any operative facts that occurred in California. Plaintiffs aver that "more than 10% of the Plaintiffs are California residents and Defendant McKesson is a California resident." Opp. 7:28-8:1. These facts, without more, do nothing to convince the Court that it should defer to Plaintiffs' choice of forum. Furthermore, the Court gives Plaintiffs' choice of forum less deference because it is a mass action with Plaintiffs from all over the country. See J.B., et al. v. Abbott Labs., Inc., 2013 WL 452807, at *4 (N.D. Ill. 2013) ("In a mass action like this, the factor of the choice of forum is discounted, though not disregarded."); see also cf. Gueorguiev v. Max Rave, LLC, 526 F. Supp. 2d 853, 857 (N.D. Ill. 2007) ("A plaintiff's choice of forum may be afforded less deference . . . in the context of nationwide class actions.").
Defendant identifies a number of factors that suggests that transferring the Propoxyphene Actions to the Eastern District of Kentucky would promote the interests of justice. For example, Defendant argues that the Propoxyphene Actions should be transferred to the Eastern District of Kentucky for efficiency purposes. Mot. 4:6-9. As the Court explained above, the Eastern District of Kentucky Court has presided over the Propoxyphene MDL and, therefore, "may efficiently handle these claims as well, for [that tribunal] is already familiar with the legal issues presented by these cases, having already established various procedures and protocols, [and] considered various legal arguments." Mot. 7:15-19. In Opposition, Plaintiffs point out that the MDL is "disbanded" in "every practical sense" so that transferring the Propoxyphene Actions to the Eastern District of Kentucky will no longer be efficient. See Opp. 5:6-12. The Court disagrees. Even if the MDL is winding down because many of the MDL cases are being remanded, that Court has become familiar with the issues at stake in this litigation and would, consequently, resolve them more efficiently. See e.g., In re Galectin Therapeutics, Inc. Sec. Litig., 2015 WL 260881, at *2 (D. Nev. 2015) ("A court considering transfer may also weigh the 'interest of conserving judicial resources and practical considerations which will facilitate a final resolution of the litigation in an expeditious and inexpensive manner.'") (citation omitted).
Additionally, the Eastern District of Kentucky has made various rulings in the MDL that likely touch on the Propoxyphene Actions. Plaintiffs contend that the Eastern District of Kentucky "has merely addressed the issue of preemption in certain cases without ruling on the underlying causes of action specific to various states, including California." Opp. 5:26-28. Even if Plaintiffs were correct that the Eastern District of Kentucky tribunal has touched on just this issue, this still weighs in favor of transferring the Propoxyphene Actions to the Eastern District of Kentucky. See Puri v. Hearthside Food Solutions, LLC, 2011 WL 6257182, at * 3 (C.D. Cal. 2011) ("[L]itigation of related claims in the same tribunal is strongly favored because it facilitates efficient, economical and expeditious pre-trial proceedings and discovery and avoid[s] duplicitous litigation and inconsistent results.") (internal quotations omitted); see also LGF Nat'l Capital, LLC v. Gary, Williams, Finney, Lewis, Watson & Sperando, P.L., 2012 WL 8109236, at *5 (C.D. Cal. 2012) ("[i]t would be far from economical to litigate precisely the same issue in parallel in two federal district courts located on opposite sides of the United States"). Moreover, as Defendants show the Court in Reply, that Court has made extensive rulings extending beyond the scope of preemption. See Reply 4:21-5:4.
Plaintiffs argue that transferring the Propoxyphene Actions would not promote the interests of justice because a transfer "at this stage of the proceedings would inevitably lead to further delay." Opp. 5:13-14. A transfer to the Eastern District of Kentucky, however, will move the matter "from a more congested to a significantly less congested venue" which could lead to a faster resolution of these actions. Mot. 10 n. 7. Defendant points out, a fact that Plaintiff does not challenge, that judges in the Central District of California have more than twice weighted filings than judges in the Eastern District of Kentucky. See id. ("According to statistics compiled by the Administrative Office of the U.S. Courts on behalf of the Federal Judiciary, there were 663 weighted filings per judge in the Central District of California in 2014, compared with 299 weighted filings per judge in the Eastern District of Kentucky."); see also Parker v. FedEx Nat'l, Inc., 2010 WL 5113809, at *4 (E.D. Cal. 2010) ("[B]oth the Central and Eastern District [of California] are over-burdened with significant caseloads.").
Lastly, a consideration of the "relevant public policy of the forum state," in this case California, also supports transfer of the actions. See Jones, 211 F.3d at 498-99. Defendant argues, and Plaintiff does not contest, that not all Plaintiffs are citizens of California. If all Plaintiffs in the Propoxyphene Actions were citizens of California, this Court would have a greater interest in adjudicating these claims. Here, however, Plaintiffs fail to plead the citizenship of all Plaintiffs and do not contest that Plaintiffs come from all over the nation. Under these circumstances, public policy does not support keeping the cases in this Court.
Overall, the interests of justice weigh in favor of transferring the Propoxyphene Actions to the Eastern District of Kentucky.
D. Convenience of the Parties and Witnesses
Third, the Court addresses whether the transfer of these cases will be convenient for the parties and witnesses.
After considering the arguments made by the Parties, the Court finds that this factor weighs slightly in favor of transferring the Propoxyphene Actions to the Eastern District of Kentucky. The Court agrees with Defendant that "this factor is less relevant to the transfer analysis . . . where both this Court and the Eastern District of Kentucky necessarily have a more limited connection to nationwide litigation by hundreds of unrelated Plaintiffs from around the County, as well as a host of Defendants with widely varied locations." Mot. 10:7-10. Nevertheless, Defendant argues that the Eastern District of Kentucky is more convenient because Xanodyne, "a primary Defendant," is located in Kentucky and "none of the alleged manufacturing Defendants has a meaningful connection to California." Id. 11:7-10; Reply 6:14-15. Defendant also contends that the only Defendant located in California is McKesson,"a tangentially related Defendant," alleged to only be a distributor. Id. 11:7-10. Instead of challenging these statements, Plaintiffs simply respond that Xanodyne is " one of the nineteen Defendants." Opp. 9:24-25 (emphasis in original). Plaintiffs' observation does not undermine Defendant's assertion; the Eastern District of Kentucky would be more convenient as long as Xanodyne is a primary defendant even if it is one of nineteen defendants. Furthermore, Plaintiffs' assertion that transferring the actions will "shift the inconvenience to Plaintiffs" rings hollow when Plaintiffs have not all alleged their citizenship and according to Plaintiffs, eighty to ninety percent of the Plaintiffs are residents of states outside of California. See Reply at 6 n.3. Accordingly, this factor weighs slightly in favor of transferring the actions.
On balance, the Court concludes that the Eastern District of Kentucky is the most convenient forum to hear the Propoxyphene Actions both because it serves the interest of justice by providing a more efficient forum and because a primary Defendant is located within the district.
IV. Conclusion
For the reasons stated above, the Court GRANTS Defendant's motion to transfer this action to the Eastern District of Kentucky and finds that Defendant's motion to sever has been RENDERED MOOT.
IT IS SO ORDERED.