Opinion
Civil Action No. 04-147-DLB.
June 17, 2004
ORDER
This matter is before the Court on motions of Defendants, The Purdue Pharma Company, Purdue Pharma L.P., The Purdue Frederick Company, Purdue Pharmaceuticals, L.P., and The P.F. Laboratories, Inc. (collectively "Purdue") and Defendants, Abbott Laboratories, and Abbott Laboratories, Inc. (collectively "Abbott") to transfer this proceeding to the Southern District of New York. (Docs. #7 #I 1). Also before the Court is Purdue's motion for hearing or oral argument on its motion (Doc. #9) and Abbott's motion to dismiss (Doc. #16). Plaintiff has not responded to any of these motions and, the time to do so under Rule 7.1(c)(I) of the Joint Local Rules for the United States District Courts for the Eastern and Western Districts of Kentucky having now expired, these matters are now ripe for review.
Defendants seek a transfer of this proposed antitrust class action to the Southern District of New York pursuant to 28 U.S.C. § 1404(a). The basis for transfer, they offer, stems from the fact that the Southern District of New York adjudicated a prior action, Purdue Pharma L.P. v. Endo Pharmaceuticals Inc., 2004 WL 26523 (S.D.N.Y. Jan. 5, 2004), a patent infringement action filed by Purdue against competitor Endo Pharmaceuticals over its four patents for the prescription drug OxyContin® The presiding federal district judge held that the patents had been infringed, but that the patents were unenforceable due to inequitable conduct by Purdue before the US. Patent and Trademark Office. Subsequent to this decision, numerous individual and proposed class actions have been filed nationwide asserting federal antitrust claims against Purdue. The Judicial Panel on Multidistrict Litigation previously granted a motion transferring to the Southern District of New York, pursuant to 28 U.S.C. § 1407, two similar actions pending in the District of Connecticut for purposes of coordinated and consolidated pretrial proceedings. There were also 41 tag-along actions filed in various districts throughout the country that were part of that transfer proceeding. In re OxyContin Antitrust Litigation, 2004 WL 893913 (April 22, 2004).
The within proceeding was not one of those 41 tag-along actions noted by the Panel. Id. n. 1. However, Purdue indicates it has notified the Judicial Panel on Multidistrict Litigation of this action as another potential tag-along case. Rather than wait for the Panel to consider formal designation of this case as a tag-along and thereby transfer it to the Southern District of New York pursuant to 28 U.S.C. § 1407, both the Purdue and Abbott Defendants have moved this Court to transfer under § 1404(a), arguing the considerations of that statute warrant transfer.
The transfer statute authorizes a change of venue where appropriate to do so for the convenience of the parties and witnesses, and in the interest of justice. 28 U.S.C. § 1404(a). The Court agrees that a transfer of this matter to the Southern District of New York is reasonable and appropriate. The underlying patent proceeding giving rise to these many antitrust cases was litigated and tried in that district, and the Court there is intimately familiar with the complex technical and scientific history of the underlying patent litigation. These antitrust cases have both factual and legal issues that overlap with that prior patent proceeding. In addition, the Panel has already transferred to the Southern District of New York at least two other purported class actions and numerous potential tag-along cases. Purdue offers that its headquarters are in southern Connecticut, and its research facilities in southern New York, and so much of the discovery would likely occur in that geographic area. Moreover, failing to transfer this action would result in parallel litigation and duplication of judicial resources. Finally, the Court is mindful that Plaintiffs choice of forum is ordinarily given great weight. But where, as here, Plaintiff is a representative of a class, that forum choice is of less significance. Shapiro v. Merrill Lynch Co., 634 F. Supp. 587, 589 (S.D. Ohio 1986). Although Defendant Purdue's motion states Plaintiff opposes this transfer, Plaintiff has failed to file any written opposition to the requested § 1404(a) transfer of Defendants Purdue or Abbott.
Other district courts before whom identical OxyContin antitrust litigation were pending have likewise found § 1404(a) transfers appropriate. See, e.g., Lynn v. The Purdue Pharma Co., 2004 WL 1242765 (D.N.M. June 7, 2004); Williams v. The Purdue Pharma Co., 2004 WL 1219061 (D.D.C. June 3, 2004); Balloveras v. The Purdue Pharma Co., 2004 WL 1202854 (S.D. Fla. May 19, 2004); Schecherv. Purdue Pharma L.P., 2004 WL 1078129 (D. Kansas May 6, 2004); Burse v. Purdue Pharma Co., 2004 WL 1125055 (N.D. Cal. May 3, 2004). This Court joins them in concluding that the interest of justice favors transfer of this proceeding to the Southern District of New York. Accordingly,
IT IS HEREBY ORDERED that:
(1) The motion for hearing or oral argument by Defendant Purdue (Doc. #9) is hereby DENIED;
(2) The motions of Defendants Purdue (Doc. #7) and Abbott (Doc. #11) to transfer this proceeding to the Southern District of New York pursuant to 28 U.S.C. § 1404(a) are hereby GRANTED;
(3) The motion to dismiss of Defendant Abbott remains to be decided by the transferee Court; and,
(4) This matter is therefore hereby STRICKEN from the active docket of this Court.