Brown v. Endo Pharm., Inc.

38 F.Supp.3d 1312

Peyton Powell BROWN, as Administratrix ad litem of the Estate of Jason DeWitt Powell, deceased, Plaintiff

v.ENDO PHARMACEUTICALS, INC., et al., Defendants.

Civil Action No. 14–0207–WS–B.

United States District Court, S.D. Alabama, Southern Division.

Signed Aug. 5, 2014.

Edward G. Bowron, Burr & Forman, LLP, Taylor Noelle Barr, Mobile, AL, Frederick P. Gilmore, Gilmore Law Office, Wyman O. Gilmore, Jr., Grove Hill, AL, for Plaintiff.

Sara Marie Turner, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Carrie Meade Hartfield, Birmingham, AL, for Defendant.

ORDER

WILLIAM H. STEELE, Chief Judge.

This matter comes before the Court on Plaintiff's Motion for Remand (doc. 8). The Motion has been briefed and is now ripe for disposition.

I. Background.

Plaintiff, Peyton Powell Brown, brought this action against defendants, Endo Pharmaceuticals, Inc. and Alex Stebbins, in the Circuit Court of Clarke County, Alabama. The Complaint alleged that plaintiff's decedent, Jason Dewitt Powell, died on March 28, 2012 after crushing and snorting Opana, a tablet form of the prescription painkiller oxymorphone. According to well-pleaded allegations of the Complaint, defendant Endo manufactured these Opana tablets despite knowledge of risks to producing that medication in a form that could be crushed, broken and/or dissolved, thereby releasing high concentrations of oxymorphone and escalating the dangers to the end user. The Complaint alleges that defendant Alex Stebbins (who is alleged to have “previously held a nursing license”) supplied Opana to Powell on March 27, 2012, and that Powell's ingestion of same caused his death hours later. (See doc. 1, Exh. A, at 9–10.) On the basis of these factual allegations, Brown's Complaint presented purely state-law claims of negligence and wantonness against Endo and Stebbins, and demanded punitive damages against both defendants pursuant to Alabama's Wrongful Death Act, as codified at Ala.Code § 6–5–410.¹

On May 7, 2014, defendant Endo Pharmaceuticals filed a Notice of Removal (doc. 1), removing this action to federal court. The Notice of Removal alleged that “[t]his Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 (federal question jurisdiction) and 1332 (diversity of citizenship).” (Doc. 1, ¶ 1.) As to the former, Endo contended that Brown's “claims implicate substantial questions of federal law” because (i) they “involve the design, manufacture and distribution of Opana Tablets, a highly regulated Schedule II controlled narcotic substance” and (ii) they “effectively seek[ ] to challenge the decision by federal regulatory authorities to authorize the manufacture and distribution of Opana non-crush resistant tablets.” (Id., ¶ ¶ 30 –33.) As to the latter, Endo's position was that Brown and Endo were of diverse citizenship, and that Stebbins' non-diverse citizenship (both Brown and Stebbins are identified in the Complaint as Alabama citizens) may be disregarded because he was fraudulently joined. (Id., ¶¶ 9–17.)

Plaintiff has now filed a Motion for Remand, challenging the existence of federal subject matter jurisdiction (under either a federal question or a diversity theory) and seeking remand of this case to Clarke County. For its part, Endo opposes the Motion, arguing that jurisdiction is proper and, alternatively, asking that plaintiff's claims against Stebbins be severed to create diversity of citizenship as to the remaining claims.

II. Analysis.

A removing defendant must establish the propriety of removal under 28 U.S.C. § 1441 and, therefore, must demonstrate the existence of federal jurisdiction. See, e.g., Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir.2013) (“the burden of establishing removal jurisdiction rests with the defendant seeking removal”); City of Vestavia Hills v. General Fidelity Ins. Co., 676 F.3d 1310, 1313 n. 1 (11th Cir.2012) ( “The removing party bears the burden of proof regarding the existence of federal subject matter jurisdiction.”). This burden applies equally in the context of a motion to remand. See Connecticut State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir.2009) (“On a motion to remand, the removing party bears the burden of showing the existence of federal subject matter jurisdiction.”). Because removal infringes upon state sovereignty and implicates central concepts of federalism, removal statutes must be construed narrowly, with all jurisdictional doubts being resolved in favor of remand to state court. See, e.g., Scimone, 720 F.3d at 882 (“we strictly construe the right to remove and apply a general presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand”) (citation and internal marks omitted).²

A. Federal Question Jurisdiction.

As an initial matter, Endo asserts in its Notice of Removal that federal jurisdiction lies pursuant to the federal question provisions of 28 U.S.C. § 1331. (See doc. 1, ¶¶ 1, 28–33.) Federal courts possess “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “The test ordinarily applied for determining whether a claim arises under federal law is whether a federal question appears on the face of the plaintiff's well-pleaded complaint.” Connecticut State Dental, 591 F.3d at 1343. Typically, “a defendant may remove on the basis of federal question jurisdiction only where that question appears on the face of the plaintiff's complaint.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 765 n. 20 (11th Cir.2010). On its face, Brown's Complaint does not interpose a federal cause of action, nor do any of her claims purport to arise under the Constitution, laws or treaties of the United States; rather, the enumerated claims sound exclusively in state-law theories of negligence and wantonness.³

That said, even in the absence of a federally created cause of action, “in limited circumstances, federal-question jurisdiction may also be available if a substantial, disputed question of federal law is a necessary element of a state cause of action.” Jairath v. Dyer, 154 F.3d 1280, 1282 (11th Cir.1998) ; see also Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) (“a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law”). In that regard, the Supreme Court has explained that “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, ––– U.S. ––––, 133 S.Ct. 1059, 1065, 185 L.Ed.2d 72 (2013). Thus, state-law claims asserted in a complaint may support § 1331 jurisdiction if those claims “necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1296 (11th Cir.2008).

The Eleventh Circuit has emphasized, however, that this is a “slim category of cases.” Adventure Outdoors, 552 F.3d at 1296. The “mere need to apply federal law in a state-law claim,” by itself, does not trigger § 1331 jurisdiction. Id. at 1300 (citation omitted). Rather, applicable caselaw “place[s] a strong, if not dispositive, emphasis on the character of the disputed federal issue in evaluating the propriety of substantial federal question jurisdiction,” reasoning that “resolution of pure issues of federal law provides the strongest basis for resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.” Id. at 1299 (citation and internal quotation marks omitted).⁴ Stated differently, to satisfy the “substantiality” requirement for a federal issue in a state-law claim giving rise to federal jurisdiction, “it is not enough that the federal issue be significant to the particular parties in the immediate suit;” instead, what matters is “the importance of the issue to the federal system as a whole.” Gunn, 133 S.Ct. at 1066.

Endo maintains that a substantial federal issue is presented here because Brown's state-law negligence and wantonness claims “depend entirely upon construction and application of the federal Controlled Substances Act (‘CSA’) and its enabling regulations.” (Doc. 12, at 10.) Endo elaborates that “[t]he CSA squarely controls Endo's duties and constraints with respect to marketing Opana,” and insists that “the CSA creates the sole legal duty governing Plaintiff's claims against Endo.” (Id. at 11.) Defendant's analysis is long on rhetoric, but short on supporting law, facts and reasoning. Why is the CSA necessarily the only source of any legal duty of care that Endo might have owed Powell? The Complaint does not identify that statute as the legal foundation of plaintiff's negligence/wantonness claims against Endo.

Nor does Endo cite any authorities to corroborate the notion that the CSA is and must be the sole source of any duty of care owed by a pharmaceutical manufacturer to an end user.⁵ With its conclusory that § 1331 jurisdiction may properly be exercised here on a “substantial federal question” theory.⁶

Even if the issue of duty were controlled by the CSA (and Endo has made no showing that might support such a conclusion), § 1331 jurisdiction would remain inappropriate under the substantiality prong of the Grable test. Again, not just any nexus to federal law (or even the presence of a federal element in a state-law claim) triggers “substantial federal question” jurisdiction. The character of that federal question is of critical importance. Would the CSA issues ostensibly implicated by Brown's complaint...