United States District Court, D. New Jersey
G. SHERIDAN, U.S.D.J.
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).
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.) 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”).
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.
around January 20, 2012, Plaintiffs apparently disliked the
MDL procedures and dismissed without prejudice their
complaint from the District Court of Northern California.
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.
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.
August 3, 2012, the MDL transferred the case to the District
of New Jersey.
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.)
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; hence, Daiichi Inc. never asserted a lack
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.)
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).
August 31, 2013, CVS was also voluntarily dismissed.
(Stipulation of Dismissal - CVS at 1, ECF No. 445.)
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.
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).
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
jurisdiction issue has two aspects: whether diversity
jurisdiction existed at the time judgment was
entered; and whether the Daiichi Limited is
subject to the personal jurisdiction of this Court.
May, 2017, the Court held two telephone conferences, and
subsequently Plaintiff's counsel and Pfizer's counsel
submitted a document entitled “Stipulation on
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)); ...