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Sanders v. Merck & Co.

March 27, 2007

JAMES SANDERS, AS ADMINISTRATOR OF THE ESTATE OF BETTY SANDERS, AND CURTIS BOBO, PLAINTIFFS,
v.
MERCK & CO., INC., AND CVS PHARMACY, INC., DEFENDANTS.



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

MEMORANDUM AND ORDER

This matter is before the Court on the motion for a stay of proceedings brought by Defendant Merck & Co., Inc. ("Merck") (Doc. 4) and the motion for remand to state court brought by Plaintiff James Sanders, as administrator of the estate of Betty Sanders, and Plaintiff Curtis Bobo (Doc. 11). For the following reasons, Merck's motion for a stay is DENIED. The motion for remand brought by Sanders and Bobo is GRANTED.

INTRODUCTION

This case is a successor to Riddle v. Merck & Co., Civil No. 06-172-GPM (S.D. Ill. filed Feb. 27, 2006).*fn1 In the Riddle case Sanders and Bobo joined with Kimberly Riddle, Sybil Griffin, Rita Carr, Huey Danzie, Roy Shain, Ray Hemken, and Clemotine Cornelious to bring suit for personal injuries allegedly caused by Vioxx, a prescription pain medication manufactured by Merck. Sanders, who brings a wrongful death claim in connection with the death of his mother, Betty Sanders, allegedly as a result of taking Vioxx, asserted in addition to claims against Merck claims against Defendant CVS Pharmacy, Inc. ("CVS") based on prescriptions for Vioxx that CVS allegedly filled for his decedent. Similarly, in addition to their claims against Merck, Riddle and Carr asserted claims against Walgreen Co. ("Walgreens") and Griffin asserted claims against American Drug Stores, Inc. ("Osco Drugs") based on prescriptions for Vioxx that Walgreens and Osco Drugs allegedly filled for them. The Riddle action was filed originally in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, on February 1, 2006, then removed by Merck to this Court in federal diversity jurisdiction on February 27, 2006. On April 21, 2006, the Court remanded the Riddle case to state court for lack of subject matter jurisdiction. See Riddle v. Merck & Co., Civil No. 06-172-GPM, 2006 WL 1064070 (S.D. Ill. Apr. 21, 2006).

On January 23, 2007, the state court entered an order in the Riddle case which provides in full:

The matter comes before the Court on all Defendants' Motions to Transfer for Forum Non Conveniens and Motions to Sever. The Court hereby severs Plaintiffs James Sanders and Curtis Bobo for purposes of the Motions to Transfer only. The cases of those Plaintiffs shall remain in St. Clair County. The Court grants the Motions to Transfer with respect to Plaintiffs Riddle, Griffin, Carr, Danzie, Shain, Hemken, and Cornelious; however, over Defendants' objections, these cases are transferred to Cook County. The Court makes no rulings on Defendants' Motions to Sever, except as necessary to address the Motions to Transfer with respect to Plaintiffs Sanders and Bobo as stated above, and sends the remaining Motions to Sever to the transferee court in Cook County, Illinois.

The Clerk is ordered to establish a new cause number and file for Sanders and Bobo v. Merck & Co., Inc., et al. All costs and fees with respect to this new file are hereby waived.

Doc. 3, Ex. 2. On January 25, 2007, Merck removed the claims of Sanders and Bobo to this Court in diversity jurisdiction for the second time; CVS timely consented to the removal. See Doc. 2, Ex. 3; Doc. 7. Although after removal the case initially was assigned to United States District Judge David R. Herndon, on February 2, 2007, it was reassigned to the undersigned United States District Judge, in conformity with the Court's policy that related cases, in this instance Riddle and this case, should be concentrated before the same judge. See Smith v. Check-N-Go of Ill., Inc., 200 F.3d 511, 513 n.1 (7th Cir. 1999); Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 839 (7th Cir. 1999); Vogel v. Merck & Co., Civil No. 07-21-GPM, 2007 WL 709002, at *1 (S.D. Ill. Mar. 6, 2007). Merck has moved for a stay of this case pending transfer of the case to a multidistrict litigation ("MDL") proceeding. Sanders and Bobo in turn have moved for remand of their claims to state court.

DISCUSSION

A. Motion to 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") to an MDL proceeding 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. Ret. Fund v. Citigroup, Inc., 391 F.3d 844, 850 (7th Cir. 2004). The decision to grant a stay rests within the Court's discretion. See Smith v. Merck & Co., No. CIV. 06-882-GPM, 2007 WL 403789, at *1 n.1 (S.D. Ill. Jan. 12, 2007); George v. Kraft Foods Global, Inc., No. 06-cv-798-DRH, 2006 WL 3842169, at *1 (S.D. Ill. Dec. 22, 2006); Walker v. Monsanto Co. Pension Plan, Nos. 04CV436 DRH, 06CV139 DRH, 06CV3 DRH, 05CV736 DRH, 2006 WL 4023651, at *1 (S.D. Ill. Oct. 25, 2006); Brooks v. Merck & Co., 443 F. Supp. 2d 994, 997 (S.D. Ill. 2006).

In Meyers v. Bayer AG, 143 F. Supp. 2d 1044 (E.D. Wis. 2001), the court concluded that, in deciding whether to address a motion to remand or to defer consideration of the motion pending transfer of an action by the JPML, a court's "first step should be to make a preliminary assessment" of the propriety of removal. Id. at 1048. If the preliminary assessment suggests that removal was improper, then the court should consider the motion to remand. See id.at 1048-49. The principle set out in Meyers is consistent with the settled rule that "[t]he removal statute, 28 U.S.C. § 1441, is construed narrowly, and doubts concerning removal are resolved in favor of remand." Kuntz v. Illinois Cent. R.R. Co., 469 F. Supp. 2d 586, 589 (S.D. Ill. 2007). The Court's initial assessment of the motion for remand in this case and the response thereto filed by Merck suggests that the removal is improper. Therefore, the Court concludes that it should consider the motion for remand even though Merck is attempting to have this case transferred by the JPML. See Wisconsin v. Abbott Labs., No. 04-C-447-C, 2004 WL 2055717, at *1 (W.D. Wis. Sept. 9, 2004) (applying Meyers and lifting a stay of proceedings for the purpose of considering a motion to remand, since it appeared the removal was improper, despite the JPML's conditional transfer order directing transfer of the case to an MDL proceeding).

B. Motion to ...


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