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City of Portland v. Purdue Pharma, LP

United States District Court, D. Maine

November 28, 2018

CITY OF PORTLAND, Plaintiff
v.
PURDUE PHARMA, LP, et al., Defendants CITY OF BANGOR, Plaintiff
v.
PURDUE PHARMA, LP, et al., Defendants CITY OF LEWISTON, Plaintiff
v.
PURDUE PHARMA, LP, et al., Defendants

          RECOMMENDED DECISION ON PLAINTIFFS' MOTIONS TO REMAND AND DEFENDANTS' MOTIONS TO STAY PROCEEDINGS

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE

         In the above-captioned removed actions, the Cities of Bangor, Lewiston, and Portland allege that Defendants, a group comprised of manufacturers, producers, distributors, retailers, and physicians, are legally responsible for the harm resulting from the extensive use of opioid medication.

         The matters are before the Court on Plaintiffs' motions to remand and Defendants' motions to stay proceedings.[1] Through their motions to remand, Plaintiffs maintain that the Court does not have jurisdiction over the subject matter of Plaintiffs' claims. Through their motions to stay, Defendants ask the Court to stay the matters given the “likely transfer” of the matters to the multidistrict litigation in the United States District Court for the Northern District of Ohio, to which the United States Judicial Panel on Multidistrict Litigation (JPML) has transferred similar cases for purposes of centralized pretrial proceedings. In re Nat'l Prescription Opiate Litig., 290 F.Supp.3d 1375, 1376 (U.S. Jud. Pan. Mult. Lit. 2017).

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court grant Defendants' motions to stay and defer decision on Plaintiffs' motions to remand.

         Background

         Plaintiffs allege Defendants misrepresented the risks and benefits of opioid medication. Plaintiffs maintain Defendants' conduct resulted in an epidemic of opioid addiction, and that Plaintiffs, as municipalities, have sustained particularized harm, including the fiscal and social costs resulting from addiction-related conditions, which costs include the treatment costs associated with municipal-employee health claims and public-health demands. (Id. ¶¶ 20, 24, 37, 49, 50, 59, 61.)

         Plaintiffs assert the following state law claims against Defendants: (1) unfair trade practices; (2) public nuisance; (3) fraud; (4) unjust enrichment; (5) negligence related to drug distribution activity; and (6) negligence specific to marketing activity. Plaintiff filed the claims in the Maine Superior Court in Cumberland, Penobscot and Androscoggin Counties. Defendant AmerisourceBergen Drug Company removed the actions from the Maine Superior Court to this Court. Defendant AmerisourceBergen asserted that this Court has subject matter jurisdiction over Plaintiffs' actions based on Plaintiffs' contention that Defendants' actions violated the federal Controlled Substances Act, 21 U.S.C. §§ 801 et seq. (CSA).[2] (Notice of Removal ¶¶ 10 - 11, citing Am. Compl. ¶¶ 746, 762, 765.)

         The cases are under review by the JPML for potential transfer for centralized pretrial proceedings pursuant to 28 U.S.C. § 1407. If transferred, the cases will join several hundred other cases now pending in the United States District Court for the Northern District of Ohio. In re National Prescription Opiate Litigation, MDL No. 2804.[3]

         Discussion

         Defendants argue this Court should stay proceedings on Plaintiffs' motions to remand pending a final order by the JPML on the possible transfer of the matters. According to Defendants, because transfer is likely, a stay is appropriate to permit the transfer and allow the Northern District of Ohio to rule on the remand question, which question will be generated in a number of the matters pending in MDL No. 2804.

         Pursuant to the JPML Rules of Procedure, the JPML's consideration of the transfer of the matters “does not affect or suspend orders and pretrial proceedings in any pending federal district court action and does not limit the pretrial jurisdiction of that court.” R.P.J.P.M.L. 2.1(d). The decision whether to stay proceedings in anticipation of a transfer to join MDL No. 2804, therefore, is within the discretion of this Court. Good v. Altria Grp., Inc., 624 F.Supp.2d 132, 134 (D. Me. 2009).

         Defendants argue that a stay is warranted because (1) transfer to the MDL is likely; (2) following transfer, judicial economy would be served as only one court would be required to consider whether the asserted state law claims raise an embedded federal question based on allegations related to the CSA; (3) the lack of a stay to facilitate a transfer could lead to inconsistent results, and prejudice Defendants given the potential for duplication of effort in multiple proceedings; and (4) a stay to await transfer would, at most, impose a minimal burden on Plaintiffs. (Motion to Stay, ECF No. 34.)

         In assessing Defendants' motions to stay pending a potential transfer to the MDL, the Court must be mindful that a motion to remand is “particularly appropriate for resolution before the [JPML] acts” because the right to litigate in the MDL depends on the existence of federal jurisdiction. Manual for Complex Litigation § 20.131 (4th ed. 2004). See Mayor & City Council of Baltimore v. Purdue Pharma L.P., et al., No. 1:18-cv-800, 2018 WL 1963816, at *3 (D. Md. Apr. 25, 2018) (order denying stay, granting motion to remand, collecting cases). In other words, either the federal court has jurisdiction over the matters or it does not. When a legitimate challenge to this Court's jurisdiction is raised, the advisability of a “routine” grant of a stay, Whittman v. Aetna Health, Inc., No. 1:14-cv-00322-JAW, 2014 WL 4772666, at *1 (D. Me. Sept. 24, 2014), based merely on the pendency of MDL litigation, has been questioned by some courts. Green v. Arizona Cardinals Football Club LLC, 21 F.Supp.3d 1020, 1026 (E.D. Mo. 2014). Where the jurisdictional question is not difficult, such that conflicting rulings would not be anticipated, and where the merits warrant a remand, a transferor court acts well within its discretion by granting the motion to remand. See, e.g., Robinson v. Ortho-McNeil Pharm., Inc., 533 F.Supp.2d 838, 841 (S.D. Ill. 2008); Hood ex rel. Mississippi v. Microsoft Corp., 428 F.Supp.2d 537, 541 (S.D.Miss. 2006); see also Bd. of Trs. of Teachers' Ret. Sys. of Ill. v. Worldcom, Inc., 244 F.Supp.2d 900, 905 (N.D. Ill.2002) (choosing to decide the motion to stay due to the complex legal issues involved in the motion to remand and noting that judicial economy would be served by “having one court rather than three decide complex jurisdictional issues”).

         Relevant case law thus suggests that consideration of the issues generated by the motion to remand is appropriate when determining whether a stay is warranted. The court's approach in Meyers v. Bayer AG, 143 F.Supp.2d 1044 (E.D. Wis. 2001), is instructive. The court in Meyers reasoned that when presented with a motion to stay and a motion to remand a matter in ...


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