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Rutherford v. Merck & Co.

April 20, 2006


The opinion of the court was delivered by: Murphy, Chief District Judge


This action is before the Court on the Motion to Remand brought by Plaintiffs Barbara Rutherford, Edward Miechle, Rachel Garza, Beth Renee Brodhacker, Sandra Zola, Thomas Vogel, Tom Benhoff, Emil Smith, Connie Testa, and Darrell Lane (Doc. 18). For the following reasons, the motion is GRANTED.


Plaintiffs originally filed this action in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, asserting claims based upon strict products liability, negligence, consumer fraud, common-law fraud, and breach of warranty arising from personal injuries allegedly caused by Vioxx, a prescription pain medication manufactured by Defendant Merck & Co. ("Merck"). Merck subsequently removed the action to this Court, asserting that Defendants Walgreen Co. ("Walgreens") and American Drug Stores, Inc. ("Osco Drugs"), who are, like Plaintiffs, citizens of Illinois, have been fraudulently joined to defeat federal diversity jurisdiction. Plaintiffs have requested remand of the action to Illinois state court for lack of subject matter jurisdiction.

At issue here are Count III, Count VI, and Count XI of Plaintiffs' complaint, which assert, respectively, claims for sale of a defective product sounding in strict products liability, negligent failure to warn, and breach of warranty against Walgreens and Osco Drugs. More specifically, Plaintiffs' complaint alleges that Walgreens and Osco Drugs filled prescriptions for Vioxx for Plaintiff Barbara Rutherford and that Osco Drugs filled prescriptions for Vioxx for Plaintiff Edward Miechle. Merck contends that Plaintiffs have fraudulently joined Walgreens and Osco Drugs because Plaintiffs' claims against those parties are barred by the "learned intermediary" doctrine under Illinois law. Also, Merck contends that under Illinois law a sale of prescription medication does not constitute a sale of "goods" for purposes of Article 2 of the Illinois Uniform Commercial Code ("Illinois UCC"). Finally, Merck contends that the claims in this case are procedurally misjoined so as to amount to fraudulent joinder. The Court will address each of these contentions in turn.


A. Merck's Request for a Stay

In opposing Plaintiffs' request for remand, Merck urges the Court to stay proceedings in this action pending transfer of the action by the Judicial Panel on Multidistrict Litigation ("JPML") for coordinated or consolidated pretrial proceedings. See 28 U.S.C. § 1407. As Merck acknowledges, the Court retains full jurisdiction over this action until such time as a transfer order by the JPML is filed in the office of the clerk of the district court of the transferee district, in this instance the United States District Court for the Eastern District of Louisiana. See Illinois Mun. Retirement Fund v. Citigroup, Inc., 391 F.3d 844, 850 (7th Cir. 2004); Wisconsin v. Abbott Labs., 390 F. Supp. 2d 815, 819 (W.D. Wis. 2005). The decision to grant a stay rests within the Court's discretion. See Walker v. Merck & Co., No. 05-CV-360-DRH, 2005 WL 1565839, at *2 (S.D. Ill. June 22, 2005).

In Meyers v. Bayer AG, 143 F. Supp. 2d 1044 (E.D. Wis. 2001), the court noted that, while it is within the power of a district court to grant a stay of proceedings although subject matter jurisdiction is in question, a court should be "reluctant" to grant such a stay "without making any effort to verify jurisdiction" for a number of reasons. Id. at 1048. First, the Meyers court stated, "Steel Co. [v. Citizens for a Better Environment, 523 U.S. 83 (1998),] emphasized the constitutional importance of the 'jurisdiction first' principle." 143 F. Supp. 2d at 1048. See also Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979) (issues affecting a court's subject matter jurisdiction are "fundamentally preliminary"). Second, the court said, "28 U.S.C. § 1447(c) directs that '[i]f at any time before judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.'" 143 F. Supp. 2d at 1048 (emphasis in original). "This section dictates that a judge should give at least some consideration to a remand motion." Id.

Third, the Meyers court concluded, considerations of judicial economy dictate that a court conduct at least limited review of a remand motion before granting a stay: "If the limited review reveals that the case is a sure loser in the court that has jurisdiction (in the conventional sense) over it, then the [transferor] court . . . should dismiss the case rather than waste the time of another court." 143 F. Supp. 2d at 1048(quoting Phillips v. Seiter, 173 F.3d 609, 611 (7th Cir. 1999)). Fourth, "even though a stay does not directly implicate the merits of a case, it undeniably has important effects on the litigation. A plaintiff may carefully craft a state court complaint in order to avoid litigating the matter in federal court." Id. "Justice Holmes observed that 'the party who brings a suit is master to decide what law he will rely upon, and therefore does determine whether he will bring a . . . suit arising under . . . the patent or other law of the United States by his declaration or bill.'" Id. (quoting The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913)).

The Meyers court concluded that, when faced by a request for a stay while a challenge to jurisdiction is pending, "a court's first step should be to make a preliminary assessment of the jurisdictional issue." 143 F. Supp. 2d at 1048. If this "first step" suggests that removal was improper, then the court "should promptly complete its consideration and remand the case to state court." Id. at 1049. See also Chinn v. Belfer, No. Civ.02-00131-ST, 2002 WL 31474189, at *3 (D. Or. June 19, 2002) (in denying a request for a stay of a case pending transfer of the case by the JPML, conducting a preliminary assessment of the merits of the plaintiffs' request for remand of the case to state court and concluding that, where "the jurisdictional issue is not factually or legally difficult," a stay would be denied and the case would be remanded to state court). In this instance the Court's preliminary assessment of Plaintiffs' motion to remand indicates that the Court should proceed to resolve the motion.

B. Plaintiffs' Motion to Remand

1. Legal Standard

Removal based on diversity requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000. See 28 U.S.C. § 1332; Id. § 1441. The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." Id. Put another way, there ...

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