Opinion
No. C 01-3024 MMC
August 17, 2001
ORDER REMANDING ACTION
Before the Court is the Notice of Removal filed August 6, 2001 by defendants Abbott Laboratories and TAP Pharmaceuticals, Inc.
The above-entitled action was originally filed in the Superior Court of California in and for the County of San Francisco. In the removed complaint, plaintiff alleges that defendants "created and implemented a fraudulent marketing and sales scheme to substantially increase the sale of Lupron and reap unlawful profits." (See Compl. at ¶ 2.) Plaintiff, on behalf of herself and a class of "patients" who allegedly paid an "artificially inflated price for Lupron" (see id.), seeks injunctive relief, "monetary compensation," general damages, punitive damages, remedies available under Cal. Bus. Prof. Code § 17200 such as restitution and disgorgement of profits, costs, and attorney's fees. (See id., prayer for relief.)
Lupron is a prescription drug "used principally for the palliative treatment of advanced prostate cancer, for the treatment of endometriosis, central precocious puberty and for the preoperative treatment of patients with anemia caused by uterine fibroids." (See Compl. at ¶ 8.)
A federal district court has jurisdiction over removed actions only if such court would have had original jurisdiction over the action had it been filed in the district court by the plaintiff. See 28 U.S.C. § 1441(a). The instant action contains no federal claims. Under such circumstances, the district court has jurisdiction only if the action is between citizens of different states and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a).
Removal statutes are strictly construed against allowing removal jurisdiction. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id. In diversity cases removed from state court, "[t]he `strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." See id. (quoting Nishimoto v. Federman-Bachrach Assocs., 903 F.2d 709, 712 n. 3 (9th Cir. 1990)). A removing defendant can meet its burden to prove that the amount in controversy exceeds the jurisdictional minimum by showing that "the plaintiff claims a sum greater than the jurisdictional requirement." See id. "If it is unclear what amount of damages the plaintiff has sought . . . then the defendant bears the burden of actually proving the facts to support jurisdiction, including the jurisdictional amount."See id. at 567.
With respect to the amount in controversy, defendants, in their Notice of Removal, state:
Plaintiff alleges that as a result of defendants' alleged conduct, "they defrauded Patients out of millions of dollars." ([Compl.], ¶ 28.) Plaintiff seeks, among other things, general damages, punitive damages, disgorgement of profits, injunctive relief and attorneys' fees. (Id. p. 10.) The relief requested by Plaintiff exceeds the jurisdictional minimum amount of $75,000, exclusive of interest and costs.
In their Notice of Removal, defendants include sufficient factual allegations that, if proven, establish diversity of citizenship between defendants and plaintiff. (See Def.'s Notice of Removal at ¶ 5.)
Defendants' showing is not sufficient. "[S]eparate and distinct claims of two or more plaintiffs cannot be aggregated in order to satisfy the jurisdictional amount requirement." Snyder v. Harris, 394 U.S. 332, 335 (1969). Consequently, when the plaintiffs' claims are separate and distinct, a defendant cannot establish diversity jurisdiction by relying on the overall damages claimed by a putative class. In the instant action, plaintiff's claims are "separate and distinct," see Eagle v. ATT Co., 769 F.2d 541, 544-47 (9th Cir. 1985), cert. denied, 475 U.S. 1084 (1986), and thus may not be aggregated with those of other patients to reach the jurisdictional minimum. See Fu's Garden Restaurant v. Archer-Daniels-Midland Co., 2000 WL 635440, at *1 (N.D. Cal. May 9, 2000) ("Here; each plaintiff could have brought an individual action without joining other purchasers of [the product]. Accordingly, plaintiffs here do not share a `single right in which they have a common and undivided interest' under Snyder. . . .")
Defendants do not contend that plaintiff's damages, individually, or the value of any injunctive relief to plaintiff, individually, exceed $75,000.
Nor may defendants rely on the cost to defendants to comply with the injunction sought by plaintiff on behalf of the putative class. See Snow v. Ford Motor Company, 561 F.2d 787, 790 (9th Cir. 1977) ("[W]here the equitable relief sought is but a means through which the individual claims may be satisfied, the ban on aggregation [applies] with equal force to the equitable as well as the monetary relief.") (citation and internal quotations omitted)); Smiley v. Citibank (South Dakota) N.A., 863 F. Supp. 1156, 1164 (C.D. Cal. 1993) (remanding where injunctive relief sought — public information campaign and remedial advertising — would inure to benefit of entire class and cost of compliance not dependent on number of class members).
Further, the ban on aggregation applies to all of plaintiff's claims irrespective of whether the relief sought is characterized as "damages," "restitution," or "disgorgement." See Arnold v. General Motors Corp., 1998 WL 827726, at *2 (N.D. Cal. Nov. 18, 1998) ("To the extent that GM likens disgorgement to a common fund, this argument was rejected inGibson. To the extent that GM likens disgorgement to equitable relief requiring aggregation, this line of argument was rejected in Snow v. Ford Motor Co."); Gibson v. Chrysler Corp., 1998 WL 646659, at *4 (N.D. Cal. July 20, 1998) (remanding where plaintiff sought restitution and disgorgement in form of "paint correction fund").
Accordingly, defendants having failed to establish the Court's subject matter jurisdiction over the instant action, the action is hereby REMANDED to the Superior Court of California in and for the County of San Francisco.
The Clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
[X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED the action is hereby REMANDED to the Superior Court of California in and for the County of San Francisco.