United States District Court, M.D. Tennessee, Nashville Division
BRYANT C. DUNAWAY, et al. Plaintiffs,
PURDUE PHARMA L.P., et al., Defendants.
MEMORANDUM & ORDER
A. TRAUGER, JUDGE
plaintiffs have filed a Motion to Remand (Docket No. 18), to
which McKesson Corporation (“McKesson”) has filed
a Response (Docket No. 54), and the plaintiffs have filed a
Reply (Docket No. 56). McKesson, Cardinal Health, Inc., and
AmerisourceBergen Drug Corporation (“Moving
Defendants”) have filed a Joint Motion to Stay
Proceedings (Docket No. 29), to which the plaintiffs have
filed a Response (Docket No. 41). For the reasons set out
herein, the Moving Defendants' motion will be denied, and
the plaintiffs' motion will be granted.
plaintiffs are District Attorneys General from judicial
districts including Bedford County, Cannon County, Clay
County, Giles County, and Van Buren County, along with Baby
Doe, an infant allegedly born dependent on opioids. They
filed suit against the defendants-a number of pharmaceutical
companies, pharmacies, clinics, and individuals-in Cumberland
County Circuit Court, alleging liability arising out of the
defendants' actions related to opioid medications,
including, in particular, many defendants' alleged
filling of suspicious orders for opioid medications. The
plaintiffs have pleaded two causes of action under the
Tennessee Drug Dealer Liability Act (“TDDLA”),
Tenn. Code Ann. §§ 29-38-101 to -116, one on behalf
of Baby Doe and one on behalf of the DAGs' judicial
districts. (Docket No. 1-3 ¶¶ 627-682.) On May 3,
2019, one of the defendants, McKesson Corporation, filed a
Notice of Removal removing the case to federal court. (Docket
No. 1.) As the basis for removal, McKesson asserted that,
although the plaintiffs have pleaded only state-law causes of
action, their claims “arise under federal law”
for jurisdictional purposes because they involve duties under
the federal Controlled Substances Act (“CSA”), 21
U.S.C. § 801 et seq. (Docket No. 1 ¶ 23.)
The defendants point out that the plaintiffs' Second
Amended Complaint alleges a number of CSA violations,
including violations of the duty, under 21 U.S.C. § 823
and related regulations and DEA guidance, to report and
suspend suspicious orders of opioid medications and to
exercise due diligence to avoid filling orders that might be
diverted to unlawful uses. See Masters Pharm., Inc. v.
DEA, 861 F.3d 206, 212 (D.C. Cir. 2017) (discussing
duties of prescription drug distributors under the CSA).
(Docket No. 1-3 ¶¶ 305, 308, 329, 351.)
plaintiffs are far from the only parties to notice that
pharmaceutical manufacturers, distributors, pharmacies, and
others might face liability related to their sale, marketing,
and/or distribution of dangerous and addictive opioids.
Currently pending before Judge Dan Polster of the Northern
District Ohio is multidistrict litigation (“MDL”)
that includes more than 1, 800 opioid-related actions,
including several originally filed in this district.
Contemporaneously with the removal, one of the defendants,
Purdue Pharma L.P., filed a notice with the Judicial Panel on
Multidistrict Litigation (“JPML”) seeking to have
this case transferred into that MDL.
10, 2019, the plaintiffs filed a Motion to Remand (Docket No.
18) in this court, arguing that the removal of the case to
federal court was improper. Shortly thereafter, the Moving
Defendants filed a Joint Motion to Stay Proceedings (Docket
No. 29), arguing that the court should stay any consideration
of the remand motion until the JPML determines whether the
case will be transferred into the MDL. On May 16, 2019, the
JPML entered a Conditional Transfer Order (Docket No. 44),
proposing that the case be transferred into the MDL.
Consistently with JPML Rules, the transfer will not take
effect until, at the earliest, its entry on the docket of the
U.S. District Court of the Northern District of Ohio.
(Id. at 1.) If a party opposes the transfer, the
transfer will be stayed indefinitely. (Id.)
district court “has broad discretion to stay
proceedings as an incident to its power to control its own
docket.” Clinton v. Jones, 520 U.S. 681,
706-07 (1997) (citing Landis v. N. Am. Co., 299 U.S.
248, 254 (1936)). “The power to stay proceedings is
incidental to the power inherent in every court to control
the disposition of the causes [on] its docket with economy of
time and effort for itself, for counsel and for litigants,
and the entry of such an order ordinarily rests with the
sound discretion of the District Court.” F.T.C. v.
E.M.A. Nationwide, Inc., 767 F.3d 611, 626- 27 (6th Cir.
2014) (quoting Ohio Envtl. Council v. U.S. Dist.
Court, 565 F.2d 393, 396 (6th Cir. 1977)).
Rules of Procedure of the U.S. Judicial Panel on
Multidistrict Litigation expressly provide that the pendency
of the Conditional Transfer Order has no bearing on this
court's ability to consider a pretrial matter pending in
a case filed in or removed to this court. See JPML
R. 2.1(d). Nevertheless, “the district court certainly
has discretion to grant a stay in the interests of judicial
economy.” Glazer v. Whirlpool Corp., No.
1:08-CV-1624, 2008 WL 4534133, at *2 (N.D. Ohio Oct. 6,
2008). When considering a stay pending the resolution of a
motion to transfer a case into an MDL, the district court
balances the following factors: “(1) potential
prejudice to the non- moving party; (2) hardship and inequity
to the moving party if the action is not stayed; and (3) the
judicial resources that would be saved by avoiding
duplicative litigation if the cases are in fact
consolidated.” Id. (quoting Rivers v. Walt
Disney Co., 980 F.Supp. 1358, 1360 (C.D. Cal. 1997)).
from state to federal court is appropriate for “any
civil action brought in a State court of which the district
courts of the United States have original
jurisdiction.” See 28 USC § 1441(a).
However, “[i]f at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C.
§ 1447(c). A party also may file a motion to remand
based on a “defect other than lack of subject matter
jurisdiction, ” provided that the party does so within
30 days after the filing of the notice of removal.
Motion to Stay
Moving Defendants argue that all three of the factors
governing its stay request- prejudice to the non-moving
parties, hardship to the moving parties, and judicial
economy-favor a stay. They point to a number of other cases
in which courts have stayed their consideration of remand
motions pending the resolution of an MDL transfer request.
See, e.g., Beshear v. Volkswagen Grp. of Am.,
Inc., 2016 WL 3040492, at *8 (E.D. Ky. May 25, 2016);
McGraw -Hill Companies, Inc., 2013 WL 1785512, at *7
(M.D. Tenn. Apr. 25, 2013) (Sharp, J.); Karrels v. Morgan
Asset Mgmt., Inc., 2010 WL 11565140, at *2 (M.D. Tenn.
Jan. 6, 2010) (Echols, J.); Marshall v. Am. Gen. Life
& Accident Ins. Co., 174 F.Supp.2d 709, 718 (M.D.
Tenn. 2001) (Nixon, S.J.). (See also Docket Nos.
30-1 to -13.) The court, the Moving Defendants argue, should
follow the lead of those courts and judges and allow the
issue of remand to be resolved either by the MDL court or by
this court after a transfer to the MDL has been rejected.
court does not deny that staying consideration of a remand
motion pending an MDL transfer decision may often be
appropriate. “As other district courts within the Sixth
Circuit have recognized, the ‘general rule is for
federal courts to defer ruling on pending motions to remand
in MDL litigation until after the [JPML] has transferred the
case.'” Beshear, 2016 WL 3040492, at *8
(quoting Kelly v. Aultman Physician Center, 2013 WL
2358583, *2 (N.D. Ohio May 29, 2013)). The fact that courts
usually handle these matters one way, however, does not
relieve this court of the necessity of considering whether a
stay is warranted here. Indeed, the JPML's own rules
explicitly make clear that no stay is mandated here, leaving
the decision on how to proceed up to the original district
court. JPML R. 2.1(d). Based on the court's balancing of the
factors relevant to whether a stay should be granted, the
court concludes that proceeding with consideration of the
plaintiffs' motion is warranted.
the risk of hardship resulting from a postponement of a
jurisdictional determination is great. If transferred, this
case will join a veritable sea of others in the MDL court.
There is no guarantee of when that heavily burdened court
would be able to address the important jurisdictional issues
raised here. This court, however, is prepared to address
those jurisdictional issues now. The prospect of indefinitely
postponing a jurisdictional ruling is especially troubling,
given that this case involves Tennessee public officials,
charged with representing the interests of the citizens of
their respective judicial districts, seeking access to the
state's courts to assert claims under the state's
laws. There is nothing inherently objectionable about a
federal court considering state-law claims involving state
and local officials, as long as it does so pursuant to its
limited constitutional and statutory jurisdiction. If that