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Alegre v. Aguayo

January 17, 2007


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge


Before the Court is Defendant Merck & Co.'s Motion to Stay and Plaintiff Ines Alegre's Motion for Remand. For the following reasons, Defendant's Motion to Stay is denied, and Plaintiff's Motion for Remand is granted.


On September 29, 2004, Plaintiff Ines Alegre filed her Complaint in this matter in the Circuit Court of Cook County, Illinois, naming Merck & Co. ("Merck"), Dr. Jorge N. Aguayo, Norwegian American Hospital, Inc. ("Norwegian") and Medco Health Solutions as defendants. Ms. Alegre filed the Complaint both on her own behalf (specifically, through a loss of consortium claim (R. 1-1, ¶¶ 167-170)) and as legal guardian of her husband, Mr. Alegre. (Id. at ¶ 1.) Plaintiff alleges that Mr. Alegre was harmed by taking Merck's prescription pain medication -- Vioxx. Specifically, Plaintiff alleges that Merck failed to fully disclose health risks, and particularly the risk of "thromboembolic adverse events, such as heart attacks and strokes" associated with use of Vioxx. (Id. at ¶ 21.)

Plaintiff alleges that Dr. Aguayo (and through respondeat superior, his employer, Norwegian) are liable not only because Dr. Aguayo prescribed Vioxx, but because he prescribed Vioxx "for chronic pain at doses and durations which were far in excess of that recommended by the manufacturer and in doses and durations which were far in excess of that practiced by any responsible member of the medical community." (Id. at ¶ 61.) Plaintiff also claims, on information and belief, that "Dr. Aguayo actually knew of the increased risk for cardiovascular events associated with Vioxx, but continued to prescribe Vioxx to Mr. Alegre at high doses for long durations, at the expense of the health and safety of Mr. Alegre, and in conscious disregard of the foreseeable harm caused by Vioxx." (Id. at ¶ 66.)

Plaintiff and Dr. Aguayo are citizens of Illinois (id. at ¶¶ 1-2), Norwegian is incorporated and located in Illinois (id. at ¶ 3), and Merck is a citizen of New Jersey. (R. 14-1, Am. Notice of Removal at ¶ 12.) On October 23, 2006, Merck filed a Notice of Removal removing Plaintiff's action to this Court pursuant to this Court's diversity jurisdiction and 28 U.S.C. § 1332 (R. 1-1), which they amended one week later, on October 30, 2006. (R. 14-1.) The citizenship of the parties would normally render Merck's removal improper. See 28 U.S.C. § 1441(b) (a defendant may remove an action not founded on a claim or right arising under the Constitution, treaties or laws of the United States "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought"); 28 U.S.C. § 1332(a) (district courts do not have diversity jurisdiction over suits between citizens of the same state). Merck's notice argued that even though Dr. Aguayo and Norwegian are Illinois citizens, removal is proper in this case because Plaintiffs, in an effort to defeat diversity jurisdiction, improperly named Dr. Aguayo and Norwegian as defendants under both the doctrine of fraudulent joinder (R. 14-1, Am. Notice of Removal at ¶¶ 16 - 20) and the similarly named but distinct doctrine of fraudulent misjoinder. (Id. at ¶¶ 21 - 24.)

Merck has moved the Court to stay all proceedings in this action pending its anticipated transfer pursuant to 28 U.S.C. § 1407 to the multidistrict litigation ("MDL") proceeding that has been established in the Eastern District of Louisiana (In re Vioxx Products Liability Litigation, MDL No. 1657) to coordinate federal product liability actions related to Vioxx. (R. 12-1.) Plaintiff has both opposed Merck's motion and has filed a motion to remand this action to the Cook County Circuit Court. (R. 19-1.)


Defendants may remove civil suits filed in state court to federal court pursuant to 28 U.S.C. § 1441 and related statutes. "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). The burden of establishing federal jurisdiction falls on the party seeking removal. Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004).


I. Timing of Consideration of Motion to Remand

The first question confronting the Court is whether to address Plaintiff's remand motion now or to stay all proceedings, which could result in the MDL judge ruling on the remand motion if the case is transferred to the Eastern District of Louisiana. The Court will consider Plaintiff's remand motion now.

Merck's stay motion argues that because resolution of all similar remand motions serves the interests of judicial economy and uniformity of decision, and because a stay will not unduly prejudice Plaintiff, this Court should order a stay of all proceedings. (R. 12-1, Merck's Mot. to Stay at 4-7.) In response, Plaintiff argues that because federal jurisdiction is in doubt, this Court has both the ability and the duty to consider its jurisdiction over this matter prior to ruling on Merck's motion to stay. (R. 19-1, Opp. to Merck's Mot. to Stay and Mot. for Remand at 6-8.)

This 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." Rutherford v. Merck & Co., 428 F. Supp. 2d 842, 845 (S.D. Ill. 2006) (citing Illinois Mun. Retirement Fund v. Citigroup, Inc., 391 F.3d 844, 850 (7th Cir. 2004)). "A pending JPML transfer motion or conditional transfer order does not affect the jurisdiction of the transferor court or its ability to rule upon any pending motions." Meyers v. Bayer AG, 143 F. Supp. 2d 1044, 1046 (E.D. Wis. 2001) (citing Rules of Procedure of the J.P.M.L. R. 1.5; General Elec. Co. v. Byrne, 611 F.2d 670, 673 (7th Cir. 1979)). Given that to this point Merck has merely identified this action on a "tag-along letter," meaning that a Conditional Transfer Order has not yet issued (R. 27-1, Merck's Reply in Supp. of Mot. to Stay and Opp. to Pl.'s Mot. to Remand at 1), the Court clearly has the discretion to first rule on either the remand motion or the motion to stay. Courts have reached both conclusions on this question, often without providing a great deal of guidance on how they reached their decision. See Meyers, 143 F. Supp. 2d at 1047-48 (citing cases). The Meyers court, recognizing this deficit, formulated a compelling and logical framework for deciding whether to first address a remand motion or a motion to stay. See id. at 1048-49. The Court adopts ...

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