United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
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
March 22, 2019, the Town of Randolph filed an action in
Superior Court alleging a variety of state law claims against
Defendants,  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].
April 22, 2019, Defendant CVS Health Corporation
(“CVS”) removed this action pursuant to the Class
Action Fairness Act (“CAFA”). [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].
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)].
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].
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).
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].
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.
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].
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 ...