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RP Healthcare, Inc. v. Pfizer Inc.

United States District Court, D. New Jersey

September 28, 2017

RP Healthcare, Inc., et al., Plaintiff,
Pfizer, Inc., et al. Defendant.


          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on remand from the United States Court of Appeals for the Third Circuit for the limited purpose of deciding two questions pertaining to In Re: Lipitor Antitrust Litigation. First; determining “whether diversity jurisdiction existed at the time judgment was entered;” and second, “whether the District Court had the power to reach the merit of the Plaintiffs' claims against the Daiichi Sankyo Defendants.” (Order at 1, Case No. 12-cv-05129, ECF No. 95) (3d Cir. 2017).


         On November 7, 2011, Plaintiffs (RP Healthcare, et al) filed a complaint against Defendants in U.S. District Court of Northern California. (Memorandum and Order at 1, ECF No. 212.)[1] In the original case, the Plaintiffs alleged anti-trust law violations arising out of a reverse-settlement transaction between Pfizer and Ranbaxy Pharmaceuticals, Inc. (“Ranbaxy”), a pharmaceutical company in India, pertaining to the drug Lipitor. See generally, FTC v. Actavis, Inc., 133 S.Ct. 2223 (2013) (Original State Complaint at 3-4, Case 3:12-cv-05129, ECF No. 3) (hereinafter “Original State Complaint”).

         On December 6, 2011, Defendants moved before the Judicial Panel on Multidistrict Litigation (“MDL”) to centralize this case with other similar filed cases that arose out of the Lipitor transaction. (Memorandum and Order at 1, ECF No. 212.)

         On or around January 20, 2012, Plaintiffs apparently disliked the MDL procedures and dismissed without prejudice their complaint from the District Court of Northern California. Id.

         On January 31, 2012, Plaintiffs then proceeded to re-file the complaint in the Superior Court of California, County of Sonoma alleging state law claims. Id. See also Original State Complaint at 1.

         On March 2, 2012, the collective Defendants removed the case to the U.S. District Court for the District of Northern California on grounds of federal question pursuant to 28 U.S.C. §§ 1331, 1338, 1441, 1446, and 1454. (Notice of Removal at 1, 4-5, Case No. 3:12-cv-05129, ECF No. 1) (hereinafter “Notice of Removal”) (claiming it involved “'an abuse of the Hatch-Waxman Act, '” “'fraudulent procurement and enforcement of a patent in violation of the Sherman Act, '” and “'commercial bribery'” in violation of the Robinson Patman Act.”). The grounds for removal did not include diversity jurisdiction (28 U.S.C. § 1332) because at least two Defendants, California Physician Services, Inc. and CVS, were principally located in California. See Notice of Removal at 3.

         On August 3, 2012, the MDL transferred the case to the District of New Jersey.

         On October 25, 2012, the Plaintiffs' motion to remand the case back to the Superior Court of California was denied. (Alioto Letter at 1-2, ECF No. 659.)

         On November 15, 2012, Defendants Daiichi Sankyo Company, Limited (“Daiichi Limited”) and Daiichi Sankyo, Inc. (Daiichi, Inc.) (and sometimes collectively referred to as “Daiichi Defendants”) filed motions to dismiss. Daiichi Limited filed a motion based upon lack of personal jurisdiction (Fed. R. Civ. P. 12(b)(2)) and failure to state a claim upon which relief may be granted (Fed. R. Civ. P. 12(b)(6). Daiichi, Inc. asserted only a 12(b)(6) defense. (Daiichi Defendants' Brief at 2, ECF No. 242-1). On this remand, both Daiichi Defendants rely on the same materials that were submitted in the November, 2012 motion;[2] hence, Daiichi Inc. never asserted a lack of jurisdiction.

         On May 8, 2013, Defendant California Physician Services, Inc. (Blue Shield) settled with Plaintiffs and was voluntarily dismissed from this case. (Stipulation of Dismissal - Blue Shield at 1, ECF No. 384.)

         On July 22, 2013, Defendants Pfizer, Pfizer Ireland, and Warner raised diversity jurisdiction, for the first time, as grounds for the subject matter jurisdiction, when the Plaintiffs moved to remand the case back to the California state court. (Memorandum in Opposition at 31-33, ECF No. 427).

         On August 31, 2013, CVS was also voluntarily dismissed. (Stipulation of Dismissal - CVS at 1, ECF No. 445.)

         On September 12, 2014, this Court issued a Memorandum and Order, granting Defendant Pfizer's motion to dismiss the Plaintiffs' complaint with prejudice. (Memorandum, ECF No. 566.) The Plaintiffs appealed on October 10, 2014.

         On November 5, 2014, this Court issued an Order dismissing Plaintiffs RP Healthcare's amended complaint with prejudice, finding that RP Healthcare did not allege the criteria set forth in the FTCV v. Actavis complaint concerning the reverse settlement. (Order, ECF No. 610).

         On April 13, 2017, the Third Circuit remanded the case back to this Court for the limited purpose of determining jurisdiction, and whether the jurisdictional decision impacts the prior dismissal under Federal Rules of Civil Procedure 12(b)(6).

         The jurisdiction issue has two aspects: whether diversity jurisdiction existed at the time judgment was entered[3]; and whether the Daiichi Limited is subject to the personal jurisdiction of this Court.

         In late May, 2017, the Court held two telephone conferences, and subsequently Plaintiff's counsel and Pfizer's counsel submitted a document entitled “Stipulation on Diversity.”

         On June 20, 2017, Mr. Alioto corresponded with regard to the diversity issue. Evidently, Mr. Alioto's clients changed their position with regard to the Stipulation on Diversity, and argued that diversity was not timely set forth as a reason for removal by Pfizer (28 U.S.C. § 1446(c)); ...

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