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Town of Randolph v. Purdue Pharma L.P.

United States District Court, D. Massachusetts

June 6, 2019

TOWN OF RANDOLPH, Plaintiff,
v.
PURDUE PHARMA L.P. d/b/a PURDUE PHARMA DELAWARE LIMITED PARTNERSHIP, ET AL. Defendants.

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO REMAND

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         Before the Court is Plaintiff Town of Randolph's (“Plaintiff” or “Town of Randolph”) motion to remand. [ECF No. 14]. For the reasons set forth below, Plaintiff's motion to remand is GRANTED. Accordingly, this action is remanded to the Massachusetts Superior Court for Norfolk County (“Superior Court”).

         I. BACKGROUND

         On March 22, 2019, the Town of Randolph filed an action in Superior Court alleging a variety of state law claims against Defendants, [1] all related to the prescribing of opioid medications. See [ECF No. 1-1 (“Complaint” or “Compl.”)]. Defendants are corporate entities and individuals involved in the manufacture and distribution of opioid medications. See [id. ¶¶ 3, 14]. The Complaint, in seven counts, alleges public nuisance, common law fraud, negligent misrepresentation, negligence, violations of Massachusetts General Laws ch. 93A, § 11 (“Chapter 93A”), unjust enrichment, and civil conspiracy and seeks $10, 000, 000 in damages. [Id. ¶¶ 517-81; id. at 192]. The damages sought are for “municipal expenditures” resulting from the opioid epidemic, including the costs of providing health, social, and law enforcement services to residents of the Town of Randolph as well as related costs from decreased tax revenue and diminished property values. See [id. ¶¶ 448-516; id. at 192].

         On April 22, 2019, Defendant CVS Health Corporation (“CVS”) removed this action pursuant to the Class Action Fairness Act (“CAFA”).[2] [ECF No. 1 at 1 (citing 28 U.S.C. §§ 1332(d)(2), 1453)]. The notice of removal asserted that the action “is removable under CAFA because the lawsuit is essentially a class action lawsuit, litigation of this case in federal court promotes CAFA's overall purpose, and CAFA's statutory requirements are satisfied.” [Id. at 2].

         On May 2, 2019, the Judicial Panel on Multidistrict Litigation (“JPML”) issued a Conditional Transfer Order conditionally transferring this action into the national opioid multidistrict litigation administered by Judge Dan A. Polster of the Northern District of Ohio (“MDL”). [ECF No. 14-2]. It is anticipated that the JPML will make a final decision on transfer at its upcoming session on July 25, 2019 following briefing on the Plaintiff's motion to vacate the conditional transfer order. See [ECF No. 28-1 at 3-4 (providing JPML briefing schedule)].

         On May 2, 2019, Plaintiff filed an emergency motion to remand the case to Superior Court on the ground that this Court lacks subject-matter jurisdiction over this action. See [ECF No. 14]. CVS opposes remand and filed a motion to stay on May 3, 2019 in which it argued for a temporary stay pending a decision from the JPML on transfer. See [ECF Nos. 17, 28]. Plaintiff opposed the motion to stay on May 10, 2019. [ECF No. 27].[3]

         II. LEGAL STANDARD

         A defendant seeking removal bears the burden of showing that the federal court has jurisdiction. See Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). Here, CVS argues that this Court has federal question jurisdiction over the instant action pursuant to 28 U.S.C. § 1332(d)(2), which grants district courts original jurisdiction over class actions meeting four statutory requirements. See [ECF No. 1 ¶¶ 16-31]. First, to be removable under § 1332(d)(2), an action must be a “class action, ” which is defined as “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action.” 28 U.S.C. § 1332(d)(1)(B). Second, there must be minimal diversity among the parties. Id. § 1332(d)(2). Third, the aggregated claims of individual class members must exceed $5 million, id. § 1332(d)(2), (6), and fourth, the proposed class must contain 100 or more members, id. § 1332(d)(5).

         III. DISCUSSION

         The parties agree that the Complaint was not filed pursuant to Federal Rule of Civil Procedure 23 (“Rule 23”) or the Commonwealth's analogous rule, Massachusetts Rule of Civil Procedure 23, and dispute only whether any of the causes of action in the Complaint invoke a “similar State statute . . . authorizing an action to be brought by 1 or more representative persons as a class action.” See 28 U.S.C. § 1332(d)(1)(B); [ECF No. 1 ¶¶ 16-23; ECF No. 14 at 14-15].

         CVS contends that “this case essentially is a class action” despite the fact that “Plaintiff has not alleged a putative class action on the face of its Complaint.” [ECF No. 1 ¶ 17]. CVS interprets Plaintiff to be “acting as a representative for a class of residents who were allegedly harmed, either directly or indirectly, by Defendants' purported misconduct.” [Id. ¶ 21]. CVS supports its argument with caselaw holding that “where a lawsuit ‘resembl[es] a class action' by asserting claims both individually and on behalf of others, CAFA removal has been found proper.” [Id. ¶ 20 (quoting Badeaux v. Goodell, 358 F.Supp.3d 562, 567 (E.D. La. 2019))].

         Plaintiff responds that the instant action cannot qualify as a class action under § 1332(d) because the statute under which the action was brought, Chapter 93A, is not a “similar State statute.” See 28 U.S.C. § 1332(d)(1)(B); [ECF No. 14 at 14-15]. Plaintiff further argues that it would not be possible for it to bring a class action under Chapter 93A on behalf of the Town of Randolph's residents because the injuries suffered by Plaintiff differ from the injuries suffered by its residents. [ECF No. 14 at 15].

         The only statutory claim in the Complaint, brought under Chapter 93A, alleges that certain of the Defendants made “false, misleading, and deceptive statements . . . to prescribers, consumers, payors, and Plaintiff, ” “engaged in false, untrue, and misleading marketing . . . . with the intent that the Town of Randolph and its residents would rely on” the false statements, and should have reasonably foreseen that “such reliance would result in the use of opioid prescriptions . . . that would cause death or severe harm to users and harm to the Town.” [Compl. ¶¶ 568-73]. The alleged damages are losses sustained by the Town of Randolph. See [id. ¶ 573 (alleging that the Town of Randolph has “sustained ascertainable losses as a direct and proximate result” of certain of Defendants' unfair ...


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