United States District Court, D. Maine
RECOMMENDED DECISION ON PLAINTIFFS' MOTIONS TO
REMAND AND DEFENDANTS' MOTIONS TO STAY
C. NIVISON U.S. MAGISTRATE JUDGE
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.
matters are before the Court on Plaintiffs' motions to
remand and Defendants' motions to stay
proceedings. 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).
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.
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.)
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). (Notice of
Removal ¶¶ 10 - 11, citing Am. Compl. ¶¶
746, 762, 765.)
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.
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.
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).
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.)
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
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 ...