Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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WESTCHESTER COUNTY, et al .,
Plaintiffs, OPINION & ORDER - аgainst - No. 23-CV-6096 (CS) MYLAN PHARMACEUTICALS, INC., et al .,
Defendants.
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Appearances:
Hunter J. Shkolnik
Paul J. Napoli
NS PR Law Services, LLC
Santurce, Puerto Rico
Salvatore C. Badala
Shayna E. Sacks
Napoli Shkolnik PLLC
Melville, New York
Counsel for Plaintiffs
Ellison Ward Merkel
Haley Plourde-Cole
Quinn Emanuel Urquhart & Sullivan, LLP
New York, New York
Michael Lyle
Jonathan Cooper
Quinn Emanuel Urquhart & Sullivan, LLP
Washington, D.C.
Charles B. Straut II
Quinn Emanuel Urquhart & Sullivan, LLP
San Francisco, California
Counsel for Defendant Express Scripts, Inc.
Michael R. Hoernlein
Brian D. Boone
Emily McGowan
Alston & Bird LLP
Charlotte, North Carolina
Caroline Rawls Strumph
Alston & Bird LLP
Atlanta, Georgia
Counsel for Defendant OptumRx, Inc.
Seibel, J.
Before the Court is Plaintiffs’ motion to remand. ( See ECF No. 114.) For the following reasons, the motion is GRANTED.
I. BACKGROUND
“The following facts derive principally from the complaint, the notice of removal, and the briefing on the instant motion seeking remand.” Ohno Enters. v. Allen , No. 15-CV-6675, 2016 WL 3512176, at *1 (E.D.N.Y. June 22, 2016); see Pondexter v. Oruzio , No. 15-CV-5617, 2017 WL 1079974, at *1 (E.D.N.Y. Mar. 21, 2017) (“When determining subject matter jurisdiction, courts may look outside the pleadings to documents appended to a notice of removal or a motion to remand that convey information essential to the court’s jurisdictional analysis. The following facts are therefore drawn from the documents attached to the notice of removal and the motion to remand in this case as well as the evidence presented in the parties’ supplemental filings.”). Plaintiffs are thirty-four New York counties and municipalities, including towns and cities, all of which initiated the underlying actions in state courts throughout New York from September 2017 to February 2020. ( See ECF No. 116-2.) Those actions – and others – were consolidated into New York State’s In re Opioid Litigation , Index No. 400000/2017, which the New York State Litigation Coordinating Panel (“LCP”) established in Suffolk County Supreme Court in July 2017 to coordinate the state’s large volume of opioid-related lawsuits. ( See ECF No. 37 ¶¶ 7-8; ECF No. 121 (“Ds’ Opp.”) at 2.) Several of the In re Opioid Litigation cases were designated as “Track I Cases” and proceeded to trial, resulting in a verdict against certain defendants on December 30, 2021. (ECF No. 37 ¶ 9; Ds’ Opp. at 2.) The remaining cases – including the 34 cases to which the instant motion is addressed – were then transferred to Westchester County Supreme Court under the caption In re Opioid Litigation – Non-Track I Cases , Index No. 75000/2022, where they have been assigned to Justice Nancy Quinn Koba. (Ds’ Opp. at 3; see ECF No. 115 (“Ps’ Mem.”) at 1-2; ECF No. 37 ¶¶ 10-11.)
On April 7, 2023, Plaintiffs amended their respective complaints to name pharmacy benefit managers (“PBMs”) Express Scripts, Inc. and OptumRx, Inc. as new Defendants, among others. ( See ECF No. 116-4 ¶ 4.) These complaints contain seven state law claims: (1) deceptive acts and practices in violation of New York General Business Law (“NY GBL”) § 349; (2) false advertising in violation of NY GBL § 350; (3) public nuisance; (4) violation of New York Social Services Law § 145-B; (5) fraud; (6) unjust enrichment; and (7) negligence. ( Id. ¶¶ 529-636.)
On July 14, 2023, Defendant OptumRx, Inc. (“OptumRx”), removed the first of these 34 cases to this Court, ( see ECF Nos. 1, 116-2), contending that its provision of pharmacy benefit management services pursuant to contracts with federal agencies, including the Veterans Health Administration (“VHA”), satisfies the federal officer removal statute, 28 U.S.C. § 1442(a), because Plaintiffs’ allegations implicate its provision of services at the direction of the federal government, ( see ECF No. 1 ¶¶ 1-5, 30). On July 28, 2023, Defendant Express Scripts, Inc. (“Express Scripts” and together with OptumRx, the “Removing Defendants”), filed a supplemental notice of removal, contending that its contract with the United States Department of Defense (“DOD”) to provide various services to DOD’s TRICARE healthcare program for active duty service members and veteran retirees, as well as its participation in the Federal Employees Health Benefits Program (“FEHBP”), administered by the United Sates Office of Personnel Management (“OPM”), independently satisfy the requirements for federal officer removal under § 1442(a). ( See generally ECF No. 37.)
On August 3, 2023, Plaintiffs filed a pre-motion letter in anticipation of a motion to remand, ( see ECF No. 44), and on August 30, 2023, the Court held a pre-motion conference at which it granted Plaintiffs leave to amend their complaints and set a briefing schedule for the motion, ( see Minute Entry dated Aug. 30, 2023).
Plaintiffs’ amended complaints were filed on September 29, 2023 and contain several paragraphs by which Plaintiffs seek to disclaim and abandon any and all claims which may give rise to § 1442(a) jurisdiction. ( See generally ECF No. 105 (“Sept. 2023 Compl.”).) Specifically, Plaintiffs offer the following disclaimеrs:
[T]his lawsuit relates to Defendants’ unlawful conduct that has created, perpetuated, contributed to, and maintained, a serious public health crisis of opioid abuse, addiction, morbidity, and mortality throughout New York state. The Defendants must be held accountable to abate the nuisances they have caused in communities across the state. This lawsuit does not seek damages related to the federal government or for conduct undertaken pursuant to contracts with the federal government, nor does it challenge the creation of custom formularies for, or on behalf of, a federal government agency or federal officer, such as for any Federal Employees Health Benefit Act (“FEHBA”), TRICARE-governed health benefits plan or any other federal plan. Furthermore, it does not seek to recover moneys paid by the federаl government pursuant to such plans. As such, the Complaint does not seek relief from any PBM Defendant that is available pursuant to any claim(s) involving a federal government agency, federal officer or federal government contracting officer associated with any FEHBA or TRICARE-governed health benefits plan or federal health insurance program; nor pharmacy care services provided to the federal government; nor remedies that would interfere with or otherwise affect any federal plan, including but not limited to any remedies that would interfere with or affect the formularies, utilization management policies and programs, or administration of any Federal Plan; the uniform administration of the TRICARE program or the provision of healthcare services to U.S. military servicemembers, veterans, and their beneficiaries; or services prоvided under a contract that requires the exclusive use of any federal government formulary, including the Department of Defense’s Uniform Formulary, that specifies the drugs authorized, sets requirements for prior authorization and utilization reviews, and/or assures medical necessity, clinical appropriateness and/or cost-effectiveness, and/or establishes a prescription restriction program for TRICARE federal health insurance program members and/or beneficiaries.
This lawsuit does not contain claims against the Defendants that are federal in character related to prescriptions adjudicated or processed under any federal program or federal contract, including OptumRx’s contract with the Veterans Health Administration or pharmacy care services provided to the federal government, Express Script’s contracts with the U.S. Department of Defense, the TRICARE health care program, and other health plans participating in the FEHBP overseen or administered by the federal government; nor does it include requests for relief governed by, or available pursuant to claims associated with any FEHBP or TRICARE-governed health benefits plan; nor claims against Defendants involving beneficiaries under federal healthcare programs or federal plans; nor federal prescription claims adjudicated or processed for plans controlled or sponsored by federal government agencies or entities or those processed according to a federal formulary design or Medicare Part D plans; nor conduct as a fiscal intermediary on behalf of the federal government; nor conduct governed or managed by a federаl officer or federal government contracting offer [ sic ], or basic governmental tasks fulfilled or carried out by a Defendant on behalf of the federal government; nor determinations as to the appropriateness of restrictions on a TRICARE member’s prescriptions, which are to be determined by a federal officer; nor conduct considered to be undertaken by any defendant as a statutorily authorized alter ego of the federal government; nor any contract that provides and/or requires federal government subjection, guidance and/or control over a Defendant’s performance and/or the prescription drugs included in formularies. Plaintiff further disclaims any claims herein regarding: (1) conduct related to prescription claims for federal plans that may or may not have caused an oversupply of prescription opiоids or caused or contributed to the harms for which Plaintiff seeks recovery, (2) Express Scripts’ pharmacy benefits management or mail order pharmacy work for the Department of Defense under any TRICARE Contract and pertaining to health plans under FEHBA, including the operation of mail order pharmacies in accordance with contractual guidelines set by the federal government; and (3) OptumRx’s work for the Veterans Health Administration and/or the federal government.
Plaintiff disavows any cause of action or claim for recovery related to opioids distributed to military personnel, veterans, federal customers or health plan beneficiaries under the authority or direction of a federal officer, federal agency, or pursuant to any federal contract; or any statutory mandate to provide health care to beneficiaries of federal plans, military personnel or veterans and/or their beneficiaries through the TRICARE federal health insurance program; contracts pertaining to pharmacy benefit management and mail order pharmacy services for federal employees, including pertaining to the TRICARE Home Delivery/Mail Order Pharmacy, or programs such as Meds by Mail; or federal contracts where a federal officer or agency directed or exercised guidance and control over Defendants’ conduct as described generally in this lawsuit; the operation or management of a TRICARE mail order pharmacy; or federal contracts pertaining to dispensing by mail order pharmacies to beneficiaries of federal plans, military personnel or veterans and/or their beneficiaries; or prescription claims under a contract between Defendants and the federal government.
Plaintiff expressly disclaims and disavows any and all federal claims or questions related to opioids at issue in this lawsuit and disavows any cause of action or claim for recovery related to opioids at issue that could give rise to federal subject matter jurisdiction under either 28 U.S.C. § 1331 (federal question) or 28 U.S.C. § 1442(a)(1) (federal officer). Plaintiff is not seeking relief for any and all claims for damages against any Defendant whose conduct whether by omission or commission, was engaged in at the behest of the United States or any agency or person acting under him or under color of such office to the extent that such a claim would implicate federal court jurisdiction under 28 U.S.C. § 1442(a)(1), predicated on preemption by the TRICARE statute and the FEHBA, or the government contactor’s defense artiсulated in Boyle v. United Technologies Corp. ,487 U.S. 500 (1998). All such claims that legitimately implicate such defenses, in the unlikely event that they exist and are factually supported, are not asserted and are hereby expressly and preemptively disclaimed. Plaintiff hereby puts any Defendant who may nonetheless assert such defenses as a basis for federal jurisdiction over this case on notice that Plaintiff seeks no recovery for injuries as a result of conduct that meets the three-prong Boyle test and constitutes actions of a federal officer sufficient to trigger jurisdiction under 28 U.S.C. § 1442(a)(1). Plaintiff specifically advises all Defendants of their position that such an express, clear and unequivocal disclaiming of exposures and of claims implicating the Boyle defense, as well as any other claims that legitimately implicate 28 U.S.C. § 1442(a)(1), render any potential future removal of this case to federal court on one of these clearly-disclaimed bases objectively unreasonable under Martin v. Franklin Capital Corp. ,546 U.S. 132 (2005).
(Sept. 2023 Compl. ¶¶ 3-6; see id. ¶¶ 113-116.)
The instant motion followed.
II. LEGAL STANDARD
“[F]ederal courts are courts of limited jurisdiction,” and “may not exercise jurisdiction
absent a statutory basis.”
Home Depot U.S.A., Inc. v. Jackson
,
A defendant that is not itself a federal officer “must satisfy a three-pronged test to
determine whether it may effect removal on those grounds,” under which it must “(1) show that
it is a person within the meaning of the statute who acted under a federal officer, (2) show that it
performed the actions for which it is being sued under color of federal office, and (3) raise a
colorable federal defense.”
State by Tong v. Exxon Mobil Corp.
,
customers or federal health plan beneficiaries.”); id . ¶ 1027 (“Plaintiff does not allege claims related to the PBM’s work for or on behalf of the federal government, or that involving military personnel, veterans, federal customers or federal health plan beneficiaries.”); id. ¶ 1130 (same).)
Citations to the Sept. 2023 Compl. refer to paragraphs in the “Addendum” section of that document, which begins at page 8 of the PDF as numbered by the Court’s Electronic Case Filing System. ( See generally Sept. 2023 Compl.)
But “even if jurisdiction existed at the time of removal, the elimination of all federal
claims after removal bears on the court’s exercise of supplemental jurisdiction.”
Paprarella v.
Liddle & Robinson, L.L.P.
, No. 18-CV-9267,
III. DISCUSSION
Plaintiffs argue that remand is appropriate because they have expressly disclaimed any claims arising from Defendants’ conduct in connection with federal programs, plans, contracts, employees, and beneficiaries, and thus the Removing Defendants have not satisfied the elements necessary for federal officer removal and this Court should not exercise supplemental jurisdiction over their state law claims. ( See generally Ps’ Mem.) The Removing Defendants maintain that (1) Plaintiffs’ post-removal amendments do not affect the propriety of removal, which was proper under the federal officer removal statute, (2) Plaintiffs’ disclaimer is illusory, as Plaintiffs’ complaints still reflect liability and damages theories that implicate the work that the Removing Defendants do at the behest of their federal clients, and (3) even if the disclaimers
аre viable, this Court should retain supplemental jurisdiction given the federal questions and federal defenses which permeate Plaintiffs’ claims. ( See generally Ds’ Opp.)
Plaintiffs’ Disclaimers and Federal Officer Jurisdiction
The Removing Defendants frame the instant motion as turning on the propriety of
removal in the first instance, (Ds’ Opp. at 3-5;
see id.
at 1 (“It is black-letter law that post-
removal amendments do not affect the propriety of removal.”)), and as a result, spend much of
their opposition detailing the extent to which removal pursuant to 28 U.S.C. § 1442(a)(1) was
proper, (
see id.
at 5-18). But in so doing they largely speak past Plaintiffs’ motion, the primary
thrust of which is that a plaintiff may amend its complaint post-removal to eliminate the bases
for federal officer jurisdiction and that, in such circumstances, a federal court should decline to
Pelker v. Air & Liquid Sys. Corp.
, No. 17-CV-1107,
As noted, Plaintiffs are correct that “a properly removed case
can
be remanded to the
state court after the complaint is amended to remove the allegations that made removal proper,”
Frawley
,
As a threshold matter, federal courts evaluating similar circumstances “have consistently
granted motions to remand where the plaintiff expressly disclaimed thе claims upon which
federal officer removal was based.”
Grady v. Monsanto Co.
, No. 23-CV-226, 2023 WL
4884468, at *2 (E.D. Mo. Aug. 1, 2023);
see id.
at *3 (collecting cases);
Maguire v. A.C. & S.
,
No. 14-CV-7578,
For example, in Maguire v. A.C. & S., Inc. plaintiffs sought damages from several defendants in connection with personal injuries allegedly caused by asbestos exposure. See 2015 WL 4934445, at *1. Following one defendant’s removal to federal court based on federal-officer jurisdiction under 28 U.S.C. § 1442(a)(1), id. , plaintiffs were granted leave to amend their complaint and added a disclaimer: “No Claims Are Made for Asbestos Exposures Which Are Alleged to Have Occurred Aboard Any Military Vessel or Vehicle, on or at Any Shipyard or on or at Any Governmental Facility or Location,” id. at *2. The Maguire court found that “such broad abandonment language [was] sufficient to constitute abandonment of claims subject to a federal contractor defense,” and remanded because removal had been based on claims of exposure at government sites, but with all such claims “removed from the scope of the Amended Complaint, [defendant’s] basis for asserting federal jurisdiction has been eliminated.” Id. at *4.
Similarly, the court in
Frawley v. Gen. Elec. Co.
granted a motion to remand when
Plaintiffs amended their complaint post-removal to delete allegations related to asbestos
exposure from employment on United States Navy ships.
See
The
Maguire
and
Frawley
decisions demonstrate that post-removal “disclaimers which
explicitly renounce[] claims of a specific nature [arе] sufficient to warrant remand . . . where the
removal was based on the federal officer removal statute,”
Batchelor
,
Here the disclaimers offered by Plaintiffs are sufficiently specific. They explicitly renounce any claims or recovery related to the Removing Defendants’ services, conduct, and contracts in connection with TRICARE, the FEHBA, the VHA or any other federal program, ( see Sept. 2023 Compl. ¶¶ 3-6) – i.e. , they abandon any claims or recovery arising out of the Removing Defendants’ work on behalf of any federal entity, including those identified in their respective notices of removal, ( see ECF No. 1 ¶ 1 (“OptumRx is a contractor with the federal government. OptumRx contracts with federal agencies and entities to provide phаrmacy benefit management services across the country, including to [VHA] health-plan members . . . . Plaintiff challenges conduct under that federal contract . . . .”); id. ¶ 3 (“Plaintiff challenges opioid prescriptions adjudicated or processed under federal contracts like the VHA contract.”); ECF No. 37 ¶ 5 (“For both TRICARE and FEHBP, Express Scripts is acting under a federal officer; the alleged conduct relates to an act under color of office; and Express Scripts has colorable federal defenses, including the government contractor defense . . . . It is therefore entitled to remove these cases under the federal officer removal statute.”)).
The Removing Defendants nevertheless argue that the disclaimers are “ineffective and illusory” because the nuisance injury alleged by Plaintiffs is “indivisible,” as Plaintiffs purportedly “allege the aggregate impaсt of all opioid prescriptions in their jurisdictions constitute a single public nuisance,” (Ds’ Opp. at 19 (emphasis in original)), “seek to hold the [Removing Defendants] jointly and severally liable for all damages caused by the opioid crisis,” ( id. at 20), and will be unable to separate damages related to commercial health plans from those related to federal plans, ( see id. at 20-21).
But nearly identical indivisibility arguments have already been rejected by multiple
courts, including in
People of the State of Cal. v. Eli Lilly & Co.
, a case alleging that PBMs
conspired with insulin manufacturers to artificially raise the price of insulin in California.
See
[The removing defendant’s] indivisibility argument stretches federal officer jurisdiction too far. A number of courts [in cases involving asbestos exposure] have credited similar types of waivers that seek to disclaim work performed on behalf of government officers while suing private contractors for work рerformed on behalf of private organizations. At oral argument, [the removing defendant] argued that th[ose] asbestos cases presented meaningfully different facts than those the Court is faced with in the present Motion. Specifically, [the removing defendant] argued that work performed on specific vessels could be divided in a way that joint negotiations on behalf of multiple parties could not. While such a division may be more difficult here, the Court is not persuaded that it cannot be done. Furthermore, [the removing defendant’s] argument, when carried to its logical end, assumes that any organization that contracts with the government, including for services that are also available to private organizations, may always take advantage of federal officer removal if any portion of the work it performs is on behalf of both private and government organizations, even if the government services are not at issue. Yet [the removing defendant] has not provided authority for this proposition, nor has the Court found any such authority, especially under circumstances similar to the present case, where Plaintiff has repeatedly demonstrated that it does not seek to sue over any conduct performed on behalf of a federal entity. Therefore, the Court rejects the Removing Defendants’ factual indivisibility arguments.
Id.
at *6;
see Gov’t of Puerto Rico v. Eli Lilly & Co.
, No. 23-CV-1127,
The Court is similarly “not persuaded that dividing the work done by Defendants on
behalf of the federal government from the work done for [other] clients is not possible in this
case,”
Gov’t of Puerto Rico
,
At bottom, “Plaintiffs’ post-removal claim disclaimer is substantially similar . . . to the
disclaimers that were determined to be effective in the cases discussed above,”
Dougherty
, 2014
WL 3542243, at *16, and thus they have “effectively waived the claims that would provide the
basis for § 1442(a)(1) jurisdiction,”
Healthcare Venture Partners, LLC
,
Supplemental Jurisdiction
Having determined that Plaintiffs’ post-removal disclaimers effectively waive any claims or recovery attributable to the Removing Defendants’ conduct related to, or contracts with, federal officers, the Court must determine whether to exercise supplemental jurisdiction over the state law claims in Plaintiffs’ amended complaints. [10]
The exercise of supplemental jurisdiction is governed by 28 U.S.C. § 1367. See Maguire ,
2015 4934445, at *4 n.4;
Dougherty
,
Here, “[f]actors of judicial economy and convenience clearly militate in favor of
remanding th[ese] cases to the New York Supreme Court,”
Frawley
,
supplemental jurisdiction because “the State court is most familiar with Plaintiff’s causes of action, and is the original forum of Plаintiff’s choosing.”).
Next, considerations of “[c]omity and respect for New York state courts dictate that
where possible, state courts should decide matters of state law, and that absent exceptional
circumstances, this Court should decline to exercise supplemental jurisdiction over such claims.”
Wilson v. Dantas
, No. 12-CV-3238,
Finally, the fairness factor favors remаnd as “[r]emand[] . . . at this early stage of the
proceeding – far from trial and before substantial discovery has begun – does not create
substantial unfairness or inconvenience to the parties.”
Wilson
,
In sum, all four factors favor remand. See Spehar v. Fuchs , No. 02-CV-9352, 2003 WL 23353308, at *10 (S.D.N.Y June 17, 2003) (declining to exercise supplemental jurisdiction because “when a post-removal amendment leaves a federal court with only state law claims, and where the federal court has had no substantive involvement in the case, the values of judicial economy, convenience, fairness, and comity weigh in favor of remanding to state court.”). Accordingly, the Court declines to exercise supplemental jurisdiction.
Removing Defendants’ Stay Request
The Removing Defendants request that this Court stay execution of any remand order for at least thirty days to preserve their right to appeal and then maintain that stay should they choose to appeal. (Ds’ Opp. at 24.)
“But a stay [pending appeal] is not a matter of right, even if irreparable injury might
otherwise result; rather, a stay is an exercise of judicial discretion, and the party requesting a stay
bears the burden of showing that the circumstances justify an exercise of discretion.”
New York
v. United States Dep’t of Homeland Sec.
,
The Removing Defendants have developed virtually no argument addressing any of these factors, let alone demonstrated that a stay pending appeal is warranted in these circumstances. six months after the filing of the notice of removal and more than seven months after the filing of the complaint, permit it to add this new substantive ground for removal”). The Court thus disregards arguments presenting new grounds for removal.
To the extent the Removing Defendants rely on Plaintiffs’ counsel having filed in federal court for other clients or having designated a similar case as a bellwether in the MDL, those strategic decisions, made for other clients in other contexts and plausibly based on any number of reasons, are far too thin a reed to suрport retention of jurisdiction in the face of considerations of judicial economy, convenience, fairness and comity.
The case on which the Removing Defendants primarily rely in support of their stay
request,
Coinbase, Inc. v. Bielski
,
while [an] interlocutory appeal on arbitrability is ongoing,”
id.
at 740. In any event, “Defendants
right to appeal is rendered nugatory only if the state court reaches the merits of plaintiffs’ claims
Simply requesting a stay is insufficient, as “[t]he Court is not responsible for developing
arguments on a party’s behalf or addressing conclusory claims.”
Chui v. American Yuexianggui
of Li LLC
, No. 18-CV-5091,
Accordingly, the request for a stay pending appeal is denied. before the Second Circuit, on appeal, holds that I improperly remanded plaintiffs’ case.”
Leroy
,
stay has resulted in denials in other cases involving one of the Removing Defendants.
See Gov’t
of Puerto Rico
,
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to remand is GRANTED. The Clerk of Court is respectfully directed to terminate the pending motions, (ECF No. 114, 125), docket this Order in this case and the thirty-three related cases (listed in footnote 3), and remand all of these cases to the Supreme Court of the State of New York, Westchester County.
SO ORDERED.
Dated: June 18, 2024
White Plains, New York
________________________________ CATHY SEIBEL, U.S.D.J.
Notes
[1] Unless otherwise indicated, case quotations omit all internal citations, quotation marks, footnotes, and alterations.
[2] PBMs are entities which “function as intermediaries between insurance providers and pharmaceutical manufacturers,” handling negotiations and payments within the prescription drug supply chain while playing no direct role in the physical distribution of those drugs. Pharmacy Benefit Managers , Nat’l Ass’n of Ins. Comm’rs, https://content.naic.org/cipr-topics/pharmacy- benefit-managers (last visited May 28, 2024).
[3] The remaining cases were all removed to this Court between July 14, 2023 and July 17, 2023. ( See ECF No. 116-2.) On July 20, 2023, the Court entered an Order consolidating all thirty-four cases for pretrial purposes only and designating Westchester County v. Mylan Pharmaceuticals, Inc., et al. , No. 23-CV-6096, as the lead case. ( See ECF No. 15.) The thirty three related cases are: Cattaraugus County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV- 06103; Cayuga County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06106; Chautauqua County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06108; Chemung County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06109; Chenango County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06120; City of Ithaca, NY v. Mylan Pharmaceuticals, Inc. et al. , No. 23- CV-06115; City Of Kingston, NY v. Novartis, et al. , No. 23-CV-06126; City of Mount Vernon, NY v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06136; Clinton County, NY v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06113; Cortland County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06121; Essex County v. Mylan Pharmaceuticals, Inc. et al. ,No. 23-CV-06097; Franklin County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06125; Genesee County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06128; Hamilton County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06129; Livingston County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06132; Niagara County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV- 06104; Orleans County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06110; Otsego County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06112; Putnam County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06116; Rensselaer County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06117; Saratoga County v. Mylan Pharmaceuticals, Inc. et al. , No. 23- CV-06119; Schoharie County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06123; Schuyler County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06127; Steuben County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06107; Tioga County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06098; Tompkins County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV- 06114; Town of Lancaster, NY v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06130; Town of Amherst, NY v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06118; Town of Cheektowaga, NY v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06124; Warren County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06133; Yates County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06134; Town of Tonawanda, NY v. Mylan Pharmaceuticals, Inc. et al. , No. 23- CV-06131; and Madison County v. Mylan Pharmaceuticals, Inc. et al. , No. 23-CV-06135.
[4] ECF No. 105 was sealed at Plaintiffs’ request, ( see ECF No. 106), to allow the parties to determine if it contained any confidential information subject to a protective order, ( see ECF No. 107). Plaintiffs were ordered to file redacted versions of that document and the amended complaints in the related cases “as soon as practicable,” ( id. ), but do not appear to have done so, ( See ECF No. 116-1). As such, the Court shall unseal ECF No. 105 and the other amended complaints unless Plaintiffs advise the Court that they do in fact contain confidential information and file redacted versions of those documents no later than July 2, 2024.
[5] In addition to these express disclaimers, Plaintiffs also include similar language in other paragraphs throughout their amended complaints. ( See, e.g. , Sept. 2023 Compl. ¶ 52 (“Plaintiff does not allege claims related to military personnel, veterans, federal customers or federal health plan beneficiaries.”); id. ¶ 106 (same); id. ¶ 505 (“Plaintiff does not allege claims related to OptumRx’s work for the Veterans Health Administration, military personnel, veterans, federаl
[7] In contrast, the two cases on which the Removing Defendants primarily rely –
Cnty. Bd.
of Arlington Cnty., Va. v. Express Scripts Pharmacy, Inc.
,
[8] On a similar note, the Removing Defendants submitted a Corrected Notice of Removal filed in another opioid case involving a federal disclaimer, Jefferson County v. Williams et al. , No. 20JE-CC00029 (Twenty-Third Judicial Circuit, Missouri), in which they argue that the plaintiff’s expert reports filed in that case reflect theories of liability that encompass the PBMs’ work for federal agencies, thus showing that disclaimers of the sort offеred by Plaintiffs are unworkable, ( see ECF No. 129). The Court will not assume that Plaintiffs will not be able to isolate the Removing Defendants’ work for federal healthcare plans in their damages calculations, and therefore disregard their disclaimer, on the basis of expert reports submitted by a different plaintiff, represented by different counsel, in a case that is in a very different procedural posture.
[9] The Court thus need not address whether these cases were originally removable under
28 U.S.C. § 1442(a)(1).
See Healthcare Venture Partners, LLC
,
[10] At least one other court “agrees . . . that a district court has discretion in determining
whether to remand a case after the claims giving rise to § 1442(a)(1) jurisdiction are eliminated”
but “respectfully disagrees . . . that this decision should proceed as a 28 U.S.C. § 1367
supplemental jurisdiction analysis,” and instead applied a “§ 1442(a)(1) ancillary-claim analysis”
when “determin[ing] whether to adjudicate the remaining claims.”
Healthcare Venture Partners,
LLC
,
[12] The Removing Defendants argue that the Court should nevertheless exercise
supplemental jurisdiction because (1) “resolving this case will require addressing substantial
questions of federal law,” including Defendants’ duties under the Controlled Substances Act
(“CSA”), (
see
Sept. 2023 Compl. ¶¶ 773-776, 827-829, 947, 971, 1234, 1275, 1278, 1302,
1307), which Plaintiffs’ counsel purportedly “recognize,” having recently filed a separate opioid
case for different plaintiffs “against many of the same defendants” in federal court in Florida,
(Ds’ Opp. at 23), (2) Removing Defendants have “have significant federal defenses, including
federal preemption under the Employee Retirement Income Security Act of 1974,” (“ERISA”),
(
id.
), and (3) Plaintiffs’ counsel purportedly selected a similar case, not before this court, as a
“PBM bellwether[]” in the federal opioid Multi-District Litigation (“MDL”), “further confirming
that these cases raise federal questions and belong in federal court,” (
id.
at 24).
The Removing Defendants’ arguments regarding the CSA and ERISA essentially present
new grounds for removal – federal question jurisdiction and complete preemption. While a
defendant “may . . . amend its notice of removal after thirty days if the amendment is merely
technical,” it “may not amend a notice of removal after thirty days to state a new ground for
removal,”
Certain Underwriters at Lloyd’s London v. Art Crating, Inc.
, No. 12-CV-5078, 2014
WL 123488, at *13 (E.D.N.Y. Jan. 10, 2014);
see
28 U.S.C. § 1446, let alone raise new grounds
for removal for the first time in an opposition brief to a motion to remand,
see, e.g.
,
Hahn v.
Rauch
,
[15] ECF No. 125 is a request for oral argument, which the Court does not find necessary.