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MDL court to decide remand motions in opiate cases.

Byline: Virginia Lawyers Weekly

The MDL court will decide whether numerous suits brought by Virginia localities against persons and entities they allege are responsible for opiate-related damages will proceed in federal court or state court.


This opinion is being entered in 12 cases in order to address nearly identical motions in all cases. Each of these substantially similar cases was filed in state court and removed by at least one defendant. Each involves claims by a locality in the Commonwealth of Virginia against four groups of defendants: (1) manufacturers of various opioid pain medications; (2) distributors of those medications; (3) pharmacy benefit manager defendants and (4) Doe defendants.

The removing defendants argue removal is proper in all cases under the Class Action Fairness Act, this court's federal-question jurisdiction or on the basis that non-diverse defendants are fraudulently joined and that, absent those defendants, the court has diversity jurisdiction. However, in City of Martinsville, Va. v. Purdue Pharma L.P, the removing defendants removed only on CAFA grounds.

A number of similar cases have been filed in state and federal courts across the country. Many of those cases have been transferred to the Opiate MDL. A conditional transfer order applicable to all 12 cases before this court was entered by the JPML on Dec. 27, 2018. Timely objection was made to the conditional transfer order and the issue now has been briefed before the JPML. If a final transfer is ordered, it is likely that it will occur after the next meeting of the JPML, which is scheduled for March 28, 2019.

The removing defendants' ask the court to stay a decision on the pending motions to remand until after a final transfer order is issued. Especially because all parties seem to believe it is likely that the cases will get transferred absent any action by this court, the motions to stay effectively request that this court allow the MDL court to rule on the motions for remand.


The removing defendants urge the court apply the "general rule" that motions to stay in this circumstance are generally granted and simply stay these cases so the motions for remand can be resolved by the MDL court. Instead, the court concludes that the better approach is one in which the court first gives "preliminary scrutiny to the merits of the motion to remand." If that preliminary assessment suggests improper removal, the court should complete its analysis and remand the case, if appropriate. If, however, the jurisdictional question appears "factually or legally difficult" and similar jurisdictional questions are likely to be raised in other cases in the MDL, then a stay may well be preferable, but the court nonetheless looks to the factors underlying a motion to stay.

Here, with regard to all of the cases except City of Martinsville, there are three potential bases asserted for removal. The court has given preliminary consideration to the jurisdictional issues and concludes that the question of whether diversity jurisdiction exists here, which involves issues of fraudulent joinder and improper joinder, is factually or legally complicated. It is likewise clearly similar to the types of jurisdictional issues that the MDL court has before it already or is likely to encounter. Accordingly, for those 11 cases, the court looks to the general factors governing whether a stay is appropriate. After considering the relevant factors, the court stays these cases.

Turning to the City of Martinsville case, the removing defendants assert that jurisdiction is proper under CAFA. The removing defendants contend that this action is a class action because it is, in effect, brought on behalf of the residents of the City of Martinsville. First of all, this statement is not an accurate characterization of the complaint. But even if the lawsuit were brought entirely on behalf of the residents, that would not render it a CAFA class action. It was not filed under Federal Rule of Civil Procedure 23, and Virginia does not have a similar state statute or rule that authorizes "an action to be brought by 1 or more representative persons."

The court concludes that City of Martinsville is not removable under CAFA. This court lacks jurisdiction in that case and must remand. Accordingly, in the City of Martinsville case only, the court will grant the motion to remand and deny all other motions.

Motion to remand granted in part.

City of Galax, Virginia v. Purdue Pharma L.P., Case No. 18-cv-00617, Feb. 14, 2019. WDVA at Roanoke (Dillon). VLW 019-3-078. 12 pp.

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Title Annotation:multidistrict litigation, City of Galax, Virginia v. Purdue Pharma L.P., U.S. District Court for the Western District of Virginia
Publication:Virginia Lawyers Weekly
Date:Mar 8, 2019
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