County of San Joaquin, et al. v. Purdue Pharma, L.P. et al.

OPPOSITION

E.D. Cal.September 15, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND ARNOLD & PORTER KAYE SCHOLER LLP Sean Morris (SBN 200368) 777 S. Figueroa Street, 44th Floor Los Angeles, CA 90017 Telephone: (213) 243-4000 Facsimile: (213) 243-4199 sean.morris@apks.com Jonathan L. Stern* Joshua M. Davis* 555 Twelfth Street, NW Washington, DC 2004-1206 Telephone: (202) 942-5000 Facsimile: (202) 924-5999 jonathan.stern@apks.com joshua.davis@apks.com *denotes national counsel who will seek pro hac vice admission Attorneys for Defendants ENDO HEALTH SOLUTIONS INC. and ENDO PHARMACEUTICALS INC. [ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCKS] UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA COUNTY OF SAN JOAQUIN, CITY OF STOCKTON, and MONTEZUMA FIRE PROTECTION DISTRICT, Plaintiffs, vs. PURDUE PHARMA L.P., PURDUE PHARMA INC., THE PURDUE FREDERICK COMPANY, INC., TEVA PHARMACEUTICALS USA, INC., CEPHALON, INC., JOHNSON & JOHNSON, JANSSEN PHARMACEUTICALS, INC., ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS, INC. N/K/A JANSSEN PHARMACEUTICALS, INC., JANSSEN PHARMACEUTICA, INC. N/K/A JANSSEN PHARMACEUTICALS, INC., ENDO HEALTH SOLUTIONS INC., ENDO PHARMACEUTICALS INC., McKESSON CORPORATION, and DOES 1-100, INCLUSIVE, Defendants. Case No. 2:17-cv-01485-MCE-GGH MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND Date: October 19, 2017 Time: 2:00 p.m. Judge: Hon. Morrison C. England, Jr. Courtroom: 7 Action Filed: May 25, 2017 Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 1 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - i - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...............................................................................................................ii INTRODUCTION ...............................................................................................................................1 BACKGROUND .................................................................................................................................2 ARGUMENT .......................................................................................................................................3 I. THIS COURT HAS DIVERSITY JURISDICTION BECAUSE THE ONLY NON-DIVERSE DEFENDANT IS FRAUDULENTLY JOINED .........................................3 A. Plaintiffs Do Not Dispute That They Lack Standing To Assert Their Claims Against the Distributor Defendant...................................................................3 B. Plaintiffs’ Claims Against the Distributor Defendant Are Not Cognizable.................4 II. THIS COURT HAS DIVERSITY JURISDICTION BECAUSE THE ONLY NON-DIVERSE DEFENDANT SHOULD BE SEVERED UNDER FEDERAL RULE OF CIVIL PROCEDURE 21........................................................................................7 A. Courts May Sever Misjoined Defendants Under Rule 21............................................8 B. The Distributor Defendant Is Not Necessary or Indispensable Under Rule 19................................................................................................................................10 1. The Distributor Defendant Is Not Necessary Under Rule 19(a) ....................10 2. The Distributor Defendant Is Not Indispensable Under Rule 19(b) ..............11 III. THIS COURT HAS DIVERSITY JURISDICTION BECAUSE THE ONLY NON-DIVERSE DEFENDANT IS PROCEDURALLY MISJOINED ................................12 CONCLUSION..................................................................................................................................13 Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 2 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - ii - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND TABLE OF AUTHORITIES Page(s) FEDERAL CASES 3W S.A.M. Tout Bois v. Rocklin Forest Prods., Inc., No. 2:10-cv-01070, 2011 WL 489735 (E.D. Cal. Feb. 7, 2011) ............................................. 5 Alfred L. Snapp & Son v. P. R., 458 U.S. 592 (1982) ................................................................................................................. 7 Andren v. Alere, Inc., 207 F. Supp. 3d 1133 (S.D. Cal. 2016) .................................................................................... 5 Astiana v. Hain Celestial Group, Inc., 783 F.3d 753 (9th Cir. 2015) ............................................................................................... 5, 6 Bruton v. Gerber Products Co., -- F. App’x --, 2017 WL 3016740 (9th Cir. July 17, 2017) .................................................... 6 City of Huntington v. AmerisourceBergen Drug Corp., No. 3:17-01362, 2017 WL 3317300 (S.D. W. Va. Aug. 3, 2017) ......................................... 13 Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).............................................................................................. 12 Coldani v. Hamm, No. 2:07-cv-0660, 2008 WL 4104292 (E.D. Cal. Sept. 3, 2008) .......................................... 10 Cty. Comm’n of McDowell Cty. v. McKesson Corp., No. 1:17-00946, 2017 WL 2843614 (S.D. W. Va. July 3, 2017) .......................................... 13 Cuviello v. Feld Ent., Inc., 304 F.R.D. 585 (N.D. Cal. 2015) ......................................................................................... 8, 9 Ellis v. Amerigas Propane, Inc., No. 1:16-CV-1184, 2016 WL 8673036 (E.D. Cal. Nov. 18, 2016)....................................... 12 Flam v. Flam, No. 1:12-CV-1052, 2016 WL 829163 (E.D. Cal. Mar. 3, 2016) ............................................. 4 Galt G/S v. JSS Scandinavia, 142 F.3d 1150 (9th Cir. 1998).................................................................................................. 8 Gatan, Inc. v. Nion Co., No. 15-cv-01862, 2017 WL 57337 (N.D. Cal. Jan. 5, 2017)............................................... 5, 6 Glob. Cmty. Monitor v. Mammoth Pac., L.P., No. 2:14-CV-01612-MCE, 2015 WL 2235815 (E.D. Cal. May 11, 2015) ........................... 11 Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 3 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - iii - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND Goldman v. Bayer AG, No. 17-cv-0647-PJH, 2017 WL 3168525 (N.D. Cal. July 26, 2017)....................................... 6 Greene v. Wyeth, 344 F. Supp. 2d 674 (D. Nev. 2004) ........................................................................ 8, 9, 12, 13 Jeanmard v. Branham, No. 6:16-cv-00343, 2016 WL 7742819 (W.D. La. Dec. 16, 2016) ......................................... 4 Jones v. Hobbs, 745 F. Supp. 2d 886 (E.D. Ark. 2010) ..................................................................................... 4 Joseph v. Baxter Int’l, Inc., 614 F. Supp. 2d 868 (N.D. Ohio 2009).............................................................................. 9, 11 Khanna v. State Bar of Cal., No. C-07-2587 EMC, 2007 WL 2288116 (N.D. Cal. Aug. 7, 2007)..................................... 11 Kirkland v. Legion Ins. Co., 343 F.3d 1135 (9th Cir. 2003).................................................................................................. 8 Lengen v. Gen. Mills, Inc., 185 F. Supp. 3d 1213 (E.D. Cal. 2016)................................................................................ 5, 6 Mamola v. JP Morgan Chase Bank, N.A., No. 2:14-cv-02688, 2016 WL 3197564 (E.D. Cal. June 9, 2016) ....................................... 5, 6 Maxtor Corp. v. Read-Rite (Thailand) Co., Ltd., No. C-03-3064, 2003 WL 24902406 (N.D. Cal. Dec. 4, 2003)............................................. 10 McElroy v. Hamilton Cty. Bd. of Educ., No. 1:12-cv-297, 2012 WL 12871469 (E.D. Tenn. Dec. 20, 2012) ........................................ 9 Morris v. Princess Cruises, Inc., 236 F.3d 1061 (9th Cir. 2001).............................................................................................. 3, 4 In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122 (9th Cir. 1973).................................................................................................... 7 Nelson v. Aim Advisors, Inc., No. 01-CV-0282-MJR, 2002 WL 442189 (S.D. Ill. Mar. 8, 2002) ....................................... 11 Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989) ................................................................................................................. 8 Reed v. Am. Med. Sec. Grp., Inc., 324 F. Supp. 2d 798 (S.D. Miss. 2004).................................................................................. 12 Rieger v. Wells Fargo Bank, Nat’l Ass’n, No. 3:13-cv-00749, 2013 WL 3835815 (N.D. Cal. July 23, 2013) ......................................... 5 Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 4 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - iv - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND Safe Streets Alliance v. Hickenlooper, 859 F.3d 865 (10th Cir. 2017).................................................................................................. 3 Sams v. Beech Aircraft Corp., 625 F.2d 273 (9th Cir. 1980).................................................................................................... 8 Sater v. Chrysler Grp. LLC, No. EDCV 14-00700, 2015 WL 736273 (C.D. Cal. Feb. 20, 2015)........................................ 5 Shin v. Time Squared Global, LLC, No. SACV 15-00943, 2015 WL 13284952 (C.D. Cal. Aug. 26, 2015) ............................... 5, 6 Smith v. Hendricks, 140 F. Supp. 3d 66 (D.D.C. 2015) ......................................................................................... 12 Smith v. Hickenlooper, 164 F. Supp. 3d 1286 (D. Colo. 2016)................................................................................. 3, 4 State of Cal. v. Frito-Lay, Inc., 474 F.2d 774 (9th Cir. 1973).................................................................................................... 7 Sullivan v. Calvert Mem’l Hosp., 117 F. Supp. 3d 702 (D. Md. 2015) ......................................................................................... 9 Sutton v. Davol, Inc., 251 F.R.D. 500 (E.D. Cal. 2008) ............................................................................. 8, 9, 12, 13 Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir. 1996)................................................................................................ 12 Temple v. Synthes Corp., 498 U.S. 5 (1990) ............................................................................................................. 10, 11 Todd by Todd v. Merrell Dow Pharms., Inc., 942 F.2d 1173 (7th Cir. 1991).................................................................................................. 9 U.S. v. Real Prop. & Improvement Located at 1840 Embarcadero, Oakland, Cal., 932 F. Supp. 2d 1064 (N.D. Cal. 2013) ................................................................................... 3 Walker v. Geico Gen. Ins. Co., 558 F.3d 1025 (9th Cir. 2009).................................................................................................. 5 Walker v. USAA Cas. Ins. Co., 474 F. Supp. 2d 1168 (E.D. Cal. 2007).................................................................................... 5 Zamani v. Carnes, 491 F.3d 990 (9th Cir. 2007).................................................................................................... 4 Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 5 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - v - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND STATE CASES Clayworth v. Pfizer, Inc., 49 Cal. 4th 758 (2010) ............................................................................................................. 7 Everett v. Mountains Recreation and Conservancy Authority, 239 Cal. App. 4th 541 (2015)................................................................................................... 6 Hartford Casualty Insurance Company v. J.R. Marketing, L.L.C., 61 Cal. 4th 988 (2015) ............................................................................................................. 6 Melchior v. New Line Prods., Inc., 106 Cal. App. 4th 779 (2003)................................................................................................... 6 STATUTES AND RULES 21 U.S.C. § 801 et seq............................................................................................................ 2, 3, 4, 10 Fed. R. Civ. P. 19 ........................................................................................................................... 8, 10 Fed. R. Civ. P. 19(a)..................................................................................................................... 10, 11 Fed. R. Civ. P. 19(b) .......................................................................................................................... 11 Fed. R. Civ. P. 21 ........................................................................................................................ passim Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 6 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND INTRODUCTION This Court has diversity jurisdiction to hear this action against the out-of-state pharmaceutical manufacturer defendants. Plaintiffs do not dispute that the amount-in-controversy requirement is satisfied. Instead, they contend that there is not complete diversity. That contention fails, however, because it is premised on the Complaint including futile and unrelated claims against a single non-diverse pharmaceutical distributor that are asserted in a transparent effort to evade removal. Under clear Ninth Circuit precedent, this Court can and should disregard the citizenship of the distributor defendant for purposes of diversity jurisdiction for three independent reasons: the distributor defendant is (1) fraudulently joined, (2) severable under Federal Rule of Civil Procedure 21, and (3) procedurally misjoined. In their Notice of Removal, the manufacturer defendants demonstrated that the distributor defendant is fraudulently joined because Plaintiffs lack statutory standing to pursue their claims against the distributor. (Dkt. No. 1 ¶¶ 30, 32-36.) In their Motion to Remand, Plaintiffs do not contest this argument, thereby conceding the point. (See Pls.’ Mem. of P’s & A’s In Supp. of Mot. to Remand (“Mot.”) (Dkt. No. 21-1).) For this reason alone, the distributor defendant is fraudulently joined and the removal is proper. Moreover, even if Plaintiffs had standing (and they do not), the distributor defendant would still be fraudulently joined because the only causes of action the Complaint purports to assert against the distributor—unjust enrichment and parens patriae—are not cognizable under settled California law. Accordingly, the Court should dismiss the distributor defendant as fraudulently joined and ignore its citizenship for purposes of diversity jurisdiction. Alternatively, the Court should sever and remand the claims against the distributor defendant under Rule 21 or the procedural misjoinder doctrine, because those claims are factually distinct from the claims against the manufacturers. This Court can and should reject Plaintiffs’ attempt to evade federal jurisdiction and circumvent proper removal by adding unrelated claims against a single non-diverse defendant. In all events, the Court should deny Plaintiffs’ Motion to Remand as to the manufacturer defendants. Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 7 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND BACKGROUND Plaintiffs—the County of San Joaquin, City of Stockton, and Montezuma Fire Protection District—brought this action in state court against several out-of-state companies that manufacture and market FDA-approved prescription opioid medications indicated for management of pain (the “Manufacturer Defendants”).1 (Compl. ¶¶ 1-22, 24-42.) The Complaint also asserts claims against a single distributor, McKesson Corporation, a California citizen (the “Distributor Defendant”). (Id. ¶¶ 43-45, 209-214.) Plaintiffs’ factual allegations against the Manufacturer Defendants and against the Distributor Defendant are wholly distinct. The Complaint purports to assert two claims against the Distributor Defendant—unjust enrichment and parens patriae. Both claims relate solely to the Distributor Defendant’s alleged failure to “report suspicious orders of opioids” in violation of the Controlled Substances Act, 21 U.S.C. § 801 et seq. (the “CSA”), and settlement agreements between the Distributor Defendant and the U.S. Department of Justice regarding CSA compliance. (Compl. ¶¶ 44-45, 209-213, 230-238.) By contrast, Plaintiffs accuse the Manufacturer Defendants of misrepresenting the dangers of long-term opioid use, and engaging in a campaign to create the perception that opioid medications are safe for the treatment of chronic pain, in order to expand the market for such medications and increase profits. (Id. ¶¶ 7-11.) According to Plaintiffs, the Manufacturer Defendants accomplished this objective by “convincing doctors, patients, and others that the benefits of using opioids to treat chronic pain outweighed the risks, and that opioids could be safely used by most patients without threat of addiction.” (Id. ¶ 12.) Plaintiffs assert that the Manufacturer Defendants’ alleged conduct has caused a rise in opioid addiction, resulting in an “increased demand for police, fire, medical, and other municipal services which directly caused Plaintiffs to incur increased expenses to care for their addicted citizens and employees.” (Id. ¶ 13.) 1 The Manufacturer Defendants, each of which is diverse from Plaintiffs, are Purdue Pharma L.P., Purdue Pharma Inc., the Purdue Frederick Company, Inc., Teva Pharmaceuticals USA, Inc., Cephalon, Inc., Johnson & Johnson, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc., Janssen Pharmaceutica, Inc. n/k/a Janssen Pharmaceuticals, Inc., Endo Health Solutions Inc., and Endo Pharmaceuticals Inc. Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 8 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND The Complaint purports to assert four claims against the Manufacturer Defendants: (1) public nuisance; (2) false representations; (3) unjust enrichment; and (4) parens patriae. (Id. ¶¶ 215-238.) On July 17, 2017, the Manufacturer Defendants timely removed the action to this Court based on diversity jurisdiction. (Dkt. No. 1.) On August 16, 2017, Plaintiffs moved to remand the entire action to state court. (Dkt. No. 21.) ARGUMENT Plaintiffs’ Motion to Remand should be denied. Plaintiffs do not dispute that the amount-in- controversy requirement is satisfied. Further, contrary to Plaintiffs’ assertions, there is complete diversity because Plaintiffs are completely diverse from the Manufacturer Defendants—the only properly joined defendants. The citizenship of the Distributor Defendant is irrelevant because the Distributor Defendant is fraudulently joined, severable under Rule 21, and procedurally misjoined. I. THIS COURT HAS DIVERSITY JURISDICTION BECAUSE THE ONLY NON- DIVERSE DEFENDANT IS FRAUDULENTLY JOINED A. Plaintiffs Do Not Dispute That They Lack Standing To Assert Their Claims Against the Distributor Defendant Under the fraudulent joinder doctrine, a court may ignore the citizenship of a defendant for purposes of diversity jurisdiction when the plaintiff “fails to state a cause of action against” that defendant “and the failure is obvious according to the settled rules of the state.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). As set forth in the Notice of Removal, the Distributor Defendant is fraudulently joined because Plaintiffs lack statutory standing to assert claims premised on alleged CSA violations. (Dkt. No. 1 ¶¶ 30, 32-36.) Plaintiffs do not dispute this. Nor could they, since Plaintiffs’ claims against the Distributor Defendant are based solely on alleged violations of the CSA, a federal statute that Plaintiffs lack standing to enforce as a matter of settled law. “[C]ourts have consistently held that there is no private right of action under the CSA to enforce compliance.” U.S. v. Real Prop. & Improvement Located at 1840 Embarcadero, Oakland, Cal., 932 F. Supp. 2d 1064, 1072 (N.D. Cal. 2013) (citations omitted); see also Smith v. Hickenlooper, 164 F. Supp. 3d 1286, 1290 (D. Colo. 2016) (“[T]he CSA does not create a private right of action.”), aff’d sub nom. Safe Streets Alliance v. Hickenlooper, 859 F.3d 865 (10th Cir. Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 9 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND 2017). Rather, “according to its plain terms, the CSA is a statute enforceable only by the Attorney General [of the United States] and, by delegation, the Department of Justice.” Smith, 164 F. Supp. 3d at 1290 (citation and internal quotation marks omitted) (emphasis added). Thus, “Congress . . . provided for enforcement of . . . the CSA by the [federal] executive branch” and “committed complete discretion to the [federal] executive branch to decide when and how to enforce” the CSA. Jones v. Hobbs, 745 F. Supp. 2d 886, 892-94 (E.D. Ark. 2010). Plaintiffs’ claims against the Distributor Defendant impermissibly “seek to bypass the congressionally mandated enforcement scheme[] for the . . . CSA; in effect, they seek private enforcement of th[e] statute[] . . . .” Id. at 893; see also Safe Streets Alliance, 859 F.3d at 909 (affirming dismissal of claims asserted by county attorneys on behalf of their municipal offices that “advance purported causes of action in equity to enforce” provisions of the CSA). Because Plaintiffs lack standing to assert their claims against the Distributor Defendant as a matter of settled law, those claims are fraudulently joined. In their Motion to Remand, Plaintiffs never respond to this argument. They have thus forfeited this dispositive issue. See, e.g., Flam v. Flam, No. 1:12-CV-1052, 2016 WL 829163, at *5 n.4 (E.D. Cal. Mar. 3, 2016) (holding that plaintiff waived issue by failing to make argument until reply in support of motion to remand); Jeanmard v. Branham, No. 6:16-cv-00343, 2016 WL 7742819, at *2 (W.D. La. Dec. 16, 2016) (“In the reply memorandum supporting her motion to remand, the plaintiff suggested that [defendant] may actually be a Louisiana citizen . . . . This argument cannot be considered because arguments raised for the first time in a reply brief are waived.”), adopted by 2017 WL 104465 (W.D. La. Jan. 10, 2017); see also Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”). Plaintiffs’ forfeiture of this issue ends the analysis. The Distributor Defendant is fraudulently joined and its citizenship should be “ignored for purposes of determining diversity,” rendering the removal proper. Morris, 236 F.3d at 1067. B. Plaintiffs’ Claims Against the Distributor Defendant Are Not Cognizable Even if Plaintiffs had standing to pursue their claims against the Distributor Defendant (and they do not), the Distributor Defendant would still be fraudulently joined because Plaintiffs have not Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 10 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND asserted any cognizable cause of action against the Distributor Defendant. The only two claims that Plaintiffs assert against the Distributor Defendant—unjust enrichment and parens patriae—are not standalone causes of action under settled California law. This Court and others “consistently have held that unjust enrichment is not a proper cause of action under California law.” Lengen v. Gen. Mills, Inc., 185 F. Supp. 3d 1213, 1222 (E.D. Cal. 2016) (England, Jr., J.) (citations omitted). As this Court has explained, “unjust enrichment is merely a synonym for the remedy of restitution and not a stand-alone cause of action.” Walker v. USAA Cas. Ins. Co., 474 F. Supp. 2d 1168, 1174 (E.D. Cal. 2007) (England, Jr., J.), aff’d sub nom. Walker v. Geico Gen. Ins. Co., 558 F.3d 1025 (9th Cir. 2009). This Court thus has repeatedly dismissed unjust enrichment claims on the ground that they are not cognizable under California law. E.g., Lengen, 185 F. Supp. 3d at 1222; Walker, 474 F. Supp. 2d at 1174; Mamola v. JP Morgan Chase Bank, N.A., No. 2:14-cv-02688, 2016 WL 3197564, at *5 (E.D. Cal. June 9, 2016) (England, Jr., J.); 3W S.A.M. Tout Bois v. Rocklin Forest Prods., Inc., No. 2:10-cv-01070, 2011 WL 489735, at *5 (E.D. Cal. Feb. 7, 2011) (England, Jr., J.) (“A cause of action must underlie a request for unjust enrichment that gives rise to a right to restitution” because “[u]njust enrichment is not a stand-alone cause of action under California law.” (citations omitted)).2 The cases cited by Plaintiffs are not to the contrary. (See Mot. at 5-6.) Indeed, in one of those cases, the Ninth Circuit squarely held that “in California, there is not a standalone cause of action for ‘unjust enrichment,’ which is synonymous with ‘restitution.’” Astiana v. Hain Celestial Group, Inc., 783 F.3d 753, 762 (9th Cir. 2015) (citations omitted) (Mot. at 5). While Astiana recognized that courts, in appropriate circumstances, “may construe the cause of action [for unjust 2 Decisions of other district courts in the Ninth Circuit are in accord. E.g., Gatan, Inc. v. Nion Co., No. 15-cv-01862, 2017 WL 57337, at *5 (N.D. Cal. Jan. 5, 2017) (“Unjust enrichment is not a ‘stand-alone cause of action’ in California.” (citations omitted)); Andren v. Alere, Inc., 207 F. Supp. 3d 1133, 1143 (S.D. Cal. 2016) (“A claim for unjust enrichment cannot stand alone as an independent claim for relief.” (citations omitted)); Shin v. Time Squared Global, LLC, No. SACV 15-00943, 2015 WL 13284952, at *4 (C.D. Cal. Aug. 26, 2015) (“Unjust enrichment must be based on other claims” because it is “not a stand-alone claim” in California (citations omitted)); Sater v. Chrysler Grp. LLC, No. EDCV 14-00700, 2015 WL 736273, at *14 (C.D. Cal. Feb. 20, 2015) (dismissing unjust enrichment claim with prejudice because “California . . . [does] not recognize unjust enrichment as an independent cause of action”); Rieger v. Wells Fargo Bank, Nat’l Ass’n, No. 3:13-cv-00749, 2013 WL 3835815, at *5 (N.D. Cal. July 23, 2013) (same). Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 11 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND enrichment] as a quasi-contract claim seeking restitution,” id. (internal quotation marks omitted), Plaintiffs do not attempt to assert any quasi-contract claim against the Distributor Defendant. This case is therefore nothing like Astiana, in which the plaintiff’s complaint asserted that “she was entitled to relief under a ‘quasi-contract’ cause of action.” Id. Plaintiffs’ reliance on the unpublished memorandum disposition in Bruton v. Gerber Products Co., -- F. App’x --, 2017 WL 3016740 (9th Cir. July 17, 2017) (Mot. at 6), is also misplaced. There, the Ninth Circuit held that a district court “erred in dismissing [a] claim for unjust enrichment/quasi-contract,” noting that the California Supreme Court in Hartford Casualty Insurance Company v. J.R. Marketing, L.L.C., 61 Cal. 4th 988 (2015), “allowed an independent claim for unjust enrichment to proceed in an insurance dispute.” Bruton, 2017 WL 3016740, at *1 (citing Hartford, 61 Cal. 4th at 1000) (emphasis added). That holding merely follows Astiana’s observation that an unjust enrichment claim properly construed as a quasi-contract claim may proceed as a standalone cause of action, which is not the case here as discussed above. See Goldman v. Bayer AG, No. 17-cv-0647-PJH, 2017 WL 3168525, at *8 & n.1 (N.D. Cal. July 26, 2017) (distinguishing Bruton on this ground in holding that “a claim of unjust enrichment cannot stand without a cognizable claim under a quasi-contractual theory or some other misconduct.”). Moreover, the Hartford court was never asked to decide whether unjust enrichment is cognizable as a standalone cause of action. 61 Cal. 4th at 1004 n.9 (“The sole issue before us is whether, assuming the insurer may seek reimbursement of allegedly excessive . . . charges from a court after the underlying litigation has concluded, the insurer may seek such reimbursement directly from counsel.”). By contrast, in Everett v. Mountains Recreation and Conservancy Authority, 239 Cal. App. 4th 541 (2015), when squarely presented with the question, the California Court of Appeal affirmed the dismissal of an unjust enrichment claim because “there is no cause of action in California for unjust enrichment.” Id. at 553 (quoting Melchior v. New Line Prods., Inc., 106 Cal. App. 4th 779, 793 (2003)). Even after Hartford, then, this Court and others have correctly continued to dismiss unjust enrichment claims because unjust enrichment is not a standalone cause of action. E.g., Goldman, 2017 WL 3168525, at *8; Lengen, 185 F. Supp. 3d at 1222; Mamola, 2016 WL 3197564, at *5; Gatan, Inc., 2017 WL 57337, at *5; Shin, 2015 WL 13284952, at *4. Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 12 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 7 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND Parens patriae likewise is not a standalone cause of action, but rather a standing concept. See Alfred L. Snapp & Son v. P. R., 458 U.S. 592, 600 (1982) (describing “the concept of parens patriae standing that has developed in American law”). Parens patriae means “parent of the country” and “refers traditionally to [the] role of state as sovereign and guardian of persons under legal disability.” Id. at 600 n.8 (citation and internal quotation marks omitted); see also id. at 607 (discussing “whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue as parens patriae”); Clayworth v. Pfizer, Inc., 49 Cal. 4th 758, 776 n.14 (2010) (adopting Alfred L. Snapp & Son’s description of parens patriae standing); State of Cal. v. Frito- Lay, Inc., 474 F.2d 774, 775 (9th Cir. 1973) (“Parens patriae has received no judicial recognition in this country as a basis for recovery of money damages for injuries suffered by individuals.”). Plaintiffs misread Alfred L. Snapp & Son. (See Mot. at 7.) There, Puerto Rico did not assert a standalone cause of action for parens patriae, but rather invoked parens patriae standing to pursue other claims “against [defendants] for their alleged violations of federal law.” Alfred L. Snapp & Son, 458 U.S. at 594. Specifically, “[i]n three counts, the complaint alleged that the defendants had violated the Wagner-Peyser Act, the Immigration and Nationality Act of 1952, and various federal regulations implementing those statutes.” Id. at 597-98. In any event, Plaintiffs cannot even invoke parens patriae standing. As the Ninth Circuit has long held, “the federal government and the states, as the twin sovereigns in our constitutional scheme, may in appropriate circumstances sue as parens patriae to vindicate interests of their citizens.” In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 131 (9th Cir. 1973). “On the other hand, political subdivisions such as cities and counties, whose power is derivative and not sovereign, cannot sue as parens patriae . . . .” Id. In sum, because Plaintiffs have not asserted any cognizable cause of action against the Distributor Defendant, it is fraudulently joined and the removal was proper. II. THIS COURT HAS DIVERSITY JURISDICTION BECAUSE THE ONLY NON- DIVERSE DEFENDANT SHOULD BE SEVERED UNDER FEDERAL RULE OF CIVIL PROCEDURE 21 Separate and apart from the fraudulent joinder doctrine, the Court may preserve diversity jurisdiction by severing the Distributor Defendant under Rule 21. Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 13 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 8 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND A. Courts May Sever Misjoined Defendants Under Rule 21 It is settled law that Rule 21 “grant[s] . . . discretionary power [to a federal court] to perfect its diversity jurisdiction by dropping a nondiverse party provided the nondiverse party is not indispensable to the action under Rule 19.” Cuviello v. Feld Ent., Inc., 304 F.R.D. 585, 593 (N.D. Cal. 2015) (quoting Kirkland v. Legion Ins. Co., 343 F.3d 1135, 1142 (9th Cir. 2003)); see also Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980) (same); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989) (“[I]t is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time.”); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1154 (9th Cir. 1998) (affirming dismissal of non-diverse party to preserve diversity jurisdiction). This Court’s decision in Sutton v. Davol, Inc., 251 F.R.D. 500 (E.D. Cal. 2008), is particularly instructive. There, two California citizens filed a personal injury action in state court arising from the implant of a medical device. Id. at 502. Plaintiffs asserted products liability claims against the out-of-state device manufacturer, as well as medical malpractice claims against the doctor who performed the procedure and the hospital, both California citizens. Id. The manufacturer removed the action to federal court based on diversity jurisdiction, arguing that the non-diverse doctor and hospital were not properly joined. Id. Despite the presence these non- diverse defendants, the Court denied plaintiffs’ motion to remand the entire case. The Court explained that “Plaintiffs’ claims based on strict products liability against the [manufacturer] are separate from Plaintiffs’ claims of medical malpractice against the [doctor and hospital] in implanting a previously recalled [medical device] in Plaintiff.” Id. at 505. Unlike the claims against the manufacturer, the claims against the doctor and hospital were “not based on the allegedly negligent testing and manufacture of the” device. Id. Accordingly, the Court explained, “Plaintiffs’ claims against the [doctor and hospital] are severed and remanded pursuant to Rule 21 . . . so as to preserve the [manufacturer’s] right to removal” based on diversity jurisdiction. Id. Greene v. Wyeth, 344 F. Supp. 2d 674 (D. Nev. 2004), is in accord. There, several users of a diet drug filed a state court action against the out-of-state manufacturer and two non-diverse defendants—a doctor who prescribed the drug to a plaintiff and a sales representative who Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 14 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 9 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND promoted the drug. Id. at 677, 679. The manufacturer removed the case to federal court based on diversity jurisdiction, contending that the two non-diverse defendants were improperly joined and subject to severance. Id. at 679. Despite the presence of the non-diverse doctor and sales representative, the court denied plaintiffs’ motion to remand the entire case. The court reasoned that, “[a]lthough each of the Plaintiffs’ claims against the [manufacturer] may regard the ‘same transaction or occurrence’—i.e., the manufacture and marketing of [the drug]—this characterization of the complaint would not apply equally to the physician and sales representative who are joined as Defendants.” Id. at 683. “[T]he only common attribute among the Plaintiffs’ claims against the [manufacturer] and those against the non-diverse Defendants is that each Plaintiff ultimately ingested [the drug] due to the alleged actions of one or more of these Defendants. Individual circumstances, actions, and omissions were involved in each Plaintiff’s choice to ingest the medication, as well as each Defendant’s role in, and responsibility for, that decision.” Id. at 683-84. The court, “mindful of its authority under . . . Rule 21[] to add or drop parties,” held that the manufacturer’s “right of removal ha[d] been frustrated by Plaintiffs’ improper joinder,” warranting severance of the non-diverse defendants. Id. at 685; see also Cuviello, 304 F.R.D. at 594 (“Because the Court finds that Taylor is a nondiverse, not indispensable party, the Court elects, in its discretion, to dismiss Taylor as a defendant from the case in order to perfect its diversity jurisdiction.” (citation and internal quotation marks omitted)).3 Likewise, here, this Court should sever the Distributor Defendant and deny remand as to the Manufacturer Defendants. As described above, Plaintiffs’ claims against the Manufacturer Defendants are factually distinct from their claims against the Distributor Defendant. Plaintiffs allege that the Manufacturer Defendants misrepresented the risks of FDA-approved prescription opioid medications. (Compl. ¶¶ 7-22, 68-208.) By contrast, none of the Plaintiffs’ allegations against the Distributor Defendant relate to purported misrepresentations about opioid products. 3 Numerous decisions by courts in other circuits are in accord with Sutton and Greene. See, e.g., Todd by Todd v. Merrell Dow Pharms., Inc., 942 F.2d 1173, 1176 (7th Cir. 1991); Sullivan v. Calvert Mem’l Hosp., 117 F. Supp. 3d 702, 707 (D. Md. 2015); McElroy v. Hamilton Cty. Bd. of Educ., No. 1:12-cv-297, 2012 WL 12871469, at *3 (E.D. Tenn. Dec. 20, 2012); Joseph v. Baxter Int’l, Inc., 614 F. Supp. 2d 868, 872 (N.D. Ohio 2009). Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 15 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND Instead, Plaintiffs allege that the Distributor Defendant failed to report suspicious orders of opioid products in violation of the CSA and failed to comply with its settlements with DOJ—settlements to which the Manufacturer Defendants are not parties. (Id. ¶¶ 21, 43-45, 209-214.) Plaintiffs characterize Rule 21 severance as a “back-door attempt at creating federal-court jurisdiction under the guise of a procedural maneuver.” (Mot. at 8.) But this Court and many others in the Ninth Circuit have found the procedure warranted in situations, like here, where a plaintiff seeks to thwart federal jurisdiction by adding unrelated claims against a non-diverse defendant. If there was any “procedural maneuver” here, it was Plaintiffs’ misjoinder of the Distributor Defendant. Tellingly, Plaintiffs named only one distributor—McKesson, a California citizen—as a defendant. They did not name other distributors that have been named in similar opioid-related lawsuits in other jurisdictions; those other distributors are not California citizens and thus could not defeat diversity here. This lays bare Plaintiffs’ intent to include McKesson for the sole purpose of trying to defeat diversity jurisdiction. In short, Rule 21 provides yet another ground for this Court to uphold the removal. B. The Distributor Defendant Is Not Necessary or Indispensable Under Rule 19 Plaintiffs assert that severance under Rule 21 is precluded because the Distributor Defendant is a Rule 19 necessary and indispensable party. (Mot. at 8-10.) It is neither. 1. The Distributor Defendant Is Not Necessary Under Rule 19(a) The Distributor Defendant is not necessary under Rule 19(a) in two independent respects. For one, “the [United States] Supreme Court has held that joint tortfeasors are not necessary parties under Rule 19.” Maxtor Corp. v. Read-Rite (Thailand) Co., Ltd., No. C-03-3064, 2003 WL 24902406, at *9 (N.D. Cal. Dec. 4, 2003) (citing Temple v. Synthes Corp., 498 U.S. 5, 7 (1990)); Coldani v. Hamm, No. 2:07-cv-0660, 2008 WL 4104292, at *2 (E.D. Cal. Sept. 3, 2008) (“Tortfeasors facing joint and several liability are not parties who must be joined in a single lawsuit.” (citation omitted)). Here, the Distributor Defendant is an alleged joint tortfeasor: the Complaint “demand[s] judgment against Defendants, jointly and severally.” (Compl. Prayer For Relief.) Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 16 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND In addition, where, as here, the claims against different defendants arise out of different transactions or occurrences, and the plaintiffs can pursue their claims against a non-diverse defendant in state court, the non-diverse defendant “do[es] not meet any of the elements required to be deemed necessary.” Baxter, 614 F. Supp. 2d at 872. 2. The Distributor Defendant Is Not Indispensable Under Rule 19(b) Because the Distributor Defendant is not a necessary party, the severability analysis ends. Temple, 498 U.S. at 8 (“[N]o inquiry under Rule 19(b) is necessary, because the threshold requirements of Rule 19(a) have not been satisfied.”); Glob. Cmty. Monitor v. Mammoth Pac., L.P., No. 2:14-CV-01612-MCE, 2015 WL 2235815, at *8 (E.D. Cal. May 11, 2015) (parties who are not necessary “also cannot be considered indispensable”). Nevertheless, even if the Distributor Defendant was a necessary party (and it is not), it is not indispensable because, as explained above, the claims against it “arise from different factual situations or pose different legal questions,” Khanna v. State Bar of Cal., No. C-07-2587 EMC, 2007 WL 2288116, at *2 (N.D. Cal. Aug. 7, 2007), and because Plaintiffs have an “adequate remedy” against the Distributor Defendant in state court and thus will not be prejudiced by severance, Baxter, 614 F. Supp. 2d at 872. Plaintiffs argue that the Distributor Defendant is an “integral actor in the collective injury and damages to the Plaintiffs” (Mot. at 9), but as support, they cite only conclusory allegations against “all Defendants.” Those allegations cannot support any claim, and they fail to show that the claims against the Manufacturer Defendants and the Distributor Defendant arise from common alleged facts. Further, if Plaintiffs truly believed that the Distributor Defendant is indispensable to this litigation, they presumably would have named other distributors. Instead, they named only the distributor that is a California citizen and therefore offered the possibility of defeating diversity. It does not matter that some of the causes of action are asserted against “all Defendants.” (E.g., Compl. ¶¶ 230-238.) The relevant inquiry is not whether a complaint asserts the same causes of action against different defendants, but whether the claims rest on distinct factual allegations. “Although Plaintiffs’ claims against all Defendants are pleaded under the same legal theory, it is only in this abstract sense that Plaintiffs’ claims share anything in common.” Nelson v. Aim Advisors, Inc., No. 01-CV-0282-MJR, 2002 WL 442189, at *3 (S.D. Ill. Mar. 8, 2002). Thus, in Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 17 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND Smith v. Hendricks, 140 F. Supp. 3d 66 (D.D.C. 2015), the court severed non-diverse healthcare- provider defendants even though the plaintiff asserted some of the same causes of action against both those defendants and the diverse manufacturer defendant. Id. at 76. Severance was warranted and diversity jurisdiction proper, the court concluded, because the “factual basis” for the claims against the manufacturer and the healthcare providers were distinct and arose out of different occurrences. Id. at 75. The same is true here with respect to Plaintiffs’ claims against the Distributor Defendant. III. THIS COURT HAS DIVERSITY JURISDICTION BECAUSE THE ONLY NON- DIVERSE DEFENDANT IS PROCEDURALLY MISJOINED This Court can independently ignore the Distributor Defendant’s citizenship under the procedural misjoinder doctrine (sometimes termed fraudulent misjoinder). Procedural misjoinder “refers to the joining of claims into one suit in order to defeat diversity jurisdiction where in reality there is no sufficient factual nexus among the claims to satisfy the permissive joinder standard.” Reed v. Am. Med. Sec. Grp., Inc., 324 F. Supp. 2d 798, 803 n.8 (S.D. Miss. 2004) (citation and internal quotation marks omitted); see also Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996) (“Misjoinder may be just as fraudulent as the joinder of a resident defendant against whom a plaintiff has no possibility of a cause of action.”), abrogated on another ground in Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000)). Under this doctrine, the Court may find that, based on the misjoinder of the Distributor Defendant, there is complete diversity and the case is removable ab initio. While the Ninth Circuit has not yet addressed procedural misjoinder, this Court and other district courts in this Circuit have applied the doctrine. E.g., Sutton, 251 F.R.D. at 504-05 (finding misjoinder and describing defendants’ “legal and factual position” for applying the procedural misjoinder doctrine as “compelling”); Greene, 344 F. Supp. 2d at 684-85 (“Although the Ninth Circuit has not yet published an opinion addressing the fraudulent misjoinder rule, this Court agrees with the Fifth and Eleventh Circuits that the rule is a logical extension of the established precedent that a plaintiff may not fraudulently join a defendant in order to defeat diversity jurisdiction in federal court.” (footnotes omitted)); Ellis v. Amerigas Propane, Inc., No. 1:16-CV-1184, 2016 WL Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 18 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND 8673036, at *2 (E.D. Cal. Nov. 18, 2016) (“[F]raudulent misjoinder has been explicitly applied twice by district courts within the jurisdiction of the Ninth Circuit.” (citing Sutton and Greene)). Other courts in this Circuit have declined to apply the doctrine. See Sutton, 251 F.R.D. at 504-05 (describing the “split”). Notably, in opioid-related cases like this one, federal district courts have recently relied on the fraudulent misjoinder doctrine to ignore the citizenship of non-diverse defendants and deny remand based on diversity jurisdiction. Cty. Comm’n of McDowell Cty. v. McKesson Corp., No. 1:17-00946, 2017 WL 2843614, at *4-5 (S.D. W. Va. July 3, 2017); City of Huntington v. AmerisourceBergen Drug Corp., No. 3:17-01362, 2017 WL 3317300, at *4-5 (S.D. W. Va. Aug. 3, 2017). In McKesson Corp., the plaintiff filed suit in state court against diverse distributors of opioid products for allegedly “flood[ing] McDowell County with opioids well beyond what was necessary to address pain and other [legitimate] reasons,” and also against a non-diverse physician for allegedly “provid[ing] written opioid prescriptions for patients, knowing that the drugs were likely to be abused, diverted or misused.” Id. at *1. The court found that these claims were fraudulently misjoined and accordingly denied remand because “plaintiff’s claims against the [distributors] and the claims against [the doctor]” lacked “common questions of law or fact” and were “separate and distinct.” Id. at *5. In AmerisourceBergen Drug Corp., the court reached the same conclusion for substantially the same reasons. 2017 WL 3317300, at *5 (claims against diverse and non-diverse defendants were “separate and distinct”). As in McKesson Corp. and AmerisourceBergen Drug Corp., Plaintiffs’ claims against the Manufacturer Defendants are separate and distinct from their claims against the Distributor Defendant. The Court thus may deny remand under the procedural misjoinder doctrine. CONCLUSION For the foregoing reasons, the Court should deny Plaintiffs’ Motion to Remand, and should either dismiss the Distributor Defendant as fraudulently joined or alternatively sever and remand the Distributor Defendant under Rule 21 or the procedural misjoinder doctrine. Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 19 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND Dated: September 15, 2017 ARNOLD & PORTER KAYE SCHOLER LLP By: /s/ Sean Morris Sean Morris Jonathan L. Stern* Joshua M. Davis* 777 S. Figueroa Street, 44th Floor Los Angeles, CA 90017 Telephone: (213) 243-4000 Facsimile: (213) 243-4199 sean.morris@apks.com -and- 555 Twelfth Street, NW Washington, DC 2004-1206 Telephone: (202) 942-5000 Facsimile: (202) 942-5999 jonathan.stern@apks.com joshua.davis@apks.com *denotes national counsel who will seek pro hac vice admission Attorneys for Defendants ENDO HEALTH SOLUTIONS INC. and ENDO PHARMACEUTICALS INC. Dated: September 15, 2017 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP By: /s/ Lisa M. Gilford Lisa M. Gilford Kevin J. Minnick 300 South Grand Avenue Los Angeles, California 90071 Telephone: (213) 687-5000 Facsimile: (213) 621-5130 lisa.gilford@skadden.com kevin.minnick@skadden.com Attorneys for Defendants PURDUE PHARMA L.P., PURDUE PHARMA INC., and THE PURDUE FREDERICK COMPANY, INC. Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 20 of 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 15 - MANUFACTURER DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND Dated: September 15, 2017 MORGAN, LEWIS & BOCKIUS LLP By: /s/ Steven A. Reed Steven A. Reed Collie F. James IV Jeremy A. Menkowitz 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5000 Facsimile: (215) 963-5001 steven.reed@morganlewis.com jeremy.menkowitz@morganlewis.com -and- 600 Anton Blvd., Ste. 1800 Costa Mesa, CA 92626 Telephone: (949) 399-7199 Facsimile: (949) 399-7001 collie.james@morganlewis.com Attorneys for Defendants TEVA PHARMACEUTICALS USA, INC. and CEPHALON, INC. Dated: September 15, 2017 O’MELVENY & MYERS LLP By: /s/ Charles C. Lifland Charles C. Lifland 400 S. Hope Street Los Angeles, CA 90071 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 clifland@omm.com Attorneys for Defendants JOHNSON & JOHNSON, JANSSEN PHARMACEUTICALS, INC., ORTHO-MCNEIL- JANSSEN PHARMACEUTICALS, INC. N/K/A JANSSEN PHARMACEUTICALS, INC., and JANSSEN PHARMACEUTICA, INC. N/K/A JANSSEN PHARMACEUTICALS, Inc. Case 2:17-cv-01485-MCE-GGH Document 30 Filed 09/15/17 Page 21 of 21