United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court are three motions: a Motion to Stay filed by
Defendants AmerisourceBergen Corporation, McKesson
Corporation, and Cardinal Health, Inc. (collectively,
“Distributor Defendants”), (Dkt. 3); a Motion to
Remand filed by Plaintiff County of Travis (“Travis
County” or “the county”), (Dkt. 4); and a
Motion to Expedite Consideration of Motion to Remand by
Travis County, (Dkt. 5). This case is one of hundreds of
lawsuits against pharmaceutical companies relating to the
sale, marketing, and distribution of opioid medications.
(Mot. Stay, Dkt. 3, at 2). Many of the federal cases have
been transferred to the United States District Court for the
Northern District of Ohio for consolidated proceedings
(“the MDL”). (Id. at 3). The Distributor
Defendants ask the Court to stay this action until the Joint
Panel on Multidistrict Litigation (“JPML”)
decides whether to transfer this action to the MDL.
(Id. at 6-7). Travis County, meanwhile, argues that
the presence of nondiverse defendants deprives this Court of
subject-matter jurisdiction and asks the Court to deny the
motion to stay and remand the case to state court before the
case is transferred. (Mot. Remand, Dkt. 4; Resp. Mot. Stay,
Dkt. 6). After considering the parties' arguments and the
relevant law, the Court agrees with Travis County that it
lacks subject-matter jurisdiction over this action and that
remand is proper.
County filed this action in the 261st Judicial District Court
of Travis County, Texas, on February 5, 2018, against a
number of defendants that distribute or manufacture opioid
medications. (Orig. Pet., Dkt. 1-1, at 11-12). Specifically,
those defendants include the Distributor Defendants, a group
of Doe defendants, and a group of manufacturers: Purdue
Pharma L.P.; Purdue Pharma Inc.; The Purdue Frederick
Company; 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.; Abbvie Inc.; Knoll
Pharmaceutical Company, a wholly-owned subsidiary of Abbvie
Inc.; Allergan PLC f/k/a Actavis PLC; Allergan Finance, LLC
f/k/a Actavis, Inc. f/k/a Watson Pharmaceuticals, Inc.;
Watson Laboratories, Inc.; Actavis LLC; Actavis Pharma, Inc.
f/k/a Watson Pharma, Inc. (collectively, the
March 23, 2018, the Distributor Defendants removed this case
to this Court pursuant to 28 U.S.C. §§ 1332, 1441,
and 1446, on the basis of diversity jurisdiction. (Not.
Removal, Dkt. 1, at 5). The same day, the Distributor
Defendants filed their Motion to Stay, (Dkt. 3), and the
county filed its Motion to Remand, (Dkt. 4).
defendant may remove any civil action from state court to a
district court of the United States that has original
jurisdiction. 28 U.S.C. § 1441. District courts have
original jurisdiction over all civil actions that are between
citizens of different states and involve an amount in
controversy in excess of $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332(a). Diversity jurisdiction
“requires complete diversity- if any plaintiff is a
citizen of the same State as any defendant, then diversity
jurisdiction does not exist.” Flagg v. Stryker
Corp., 819 F.3d 132, 136 (5th Cir. 2016) (citing
Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2
L.Ed. 435 (1806)). Moreover, 28 U.S.C. § 1441(b)(2)
provides that a case cannot be removed based on diversity
jurisdiction if any properly joined defendant is a citizen of
the state in which the action is brought.
party seeking removal “bears the burden of establishing
that federal jurisdiction exists and that removal was
proper.” Manguno v. Prudential Prop. & Cas.
Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). The removal
statute must “be strictly construed, and any doubt
about the propriety of removal must be resolved in favor of
remand.” Gasch v. Hartford Accident & Indem.
Co., 491 F.3d 278, 281-82 (5th Cir. 2007). A
district court is required to remand the case to state court
if, at any time before final judgment, it determines that it
lacks subject matter jurisdiction. 28 U.S.C. § 1447(c).
MOTION TO STAY
Distributor Defendants argue that a stay will conserve
judicial resources and prevent inconsistent pretrial rulings
by permitting the JPML to decide whether to transfer this
case. (Mot. Stay, Dkt. 3, at 4). Other federal courts have
decided to stay similar cases in the interest of promoting
uniformity through the MDL. (Mot. Stay, Dkt. 3, at 5 (citing
Estate of Brockel v. Purdue Pharma L.P., No.
1:17-cv-00521, Dkt. No. 58 at 11 (S.D. Ala. Feb. 27, 2018)).
However, Travis County points out that the district judge
presiding over the MDL has issued a moratorium on substantive
filings, including motions to remand, and that their motion
to remand may not be considered for some time. (Resp. Mot.
Stay, Dkt. 6, at 2). More importantly, if this Court lacks
subject-matter jurisdiction over this action, it has no
authority to stay this action. See In re Querner, 7
F.3d 1199, 1201 (5th Cir.1993) (“Where a federal court
lacks jurisdiction, its decisions, opinions, and orders are
MOTION TO REMAND
Distributor Defendants admit that Travis County is a Texas
citizen and that at least one of the Manufacturer Defendants,
Purdue Pharma L.P., is a Texas citizen. (Not. Removal, Dkt.
1, at 6, 5 n.1). There is thus no question that if the
Manufacturer Defendants are properly joined, the Court lacks
subject matter jurisdiction over this action. See
Flagg, 819 F.3d at 136.
Distributor Defendants therefore argue that the Manufacturer
Defendants are not properly joined and that the
Court should sever the county's claims against the two
sets of defendants. (Not. Removal, Dkt. 1, at 5).
Specifically, the Distributor Defendants argue that the
Manufacturer Defendants are neither necessary parties under
Federal Rule of Civil Procedure 19 nor appropriately joined
parties under Rule 20. (Not. Removal, Dkt. 1, at 10-15). The
Distributor Defendants move for severance under Rule 21 or
the fraudulent misjoinder doctrine. (Not. Removal, Dkt. 1, at 7,