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Date: 03-27-2019
Case Style:
Catherine Gibbons, et al. v. Bristol-Myers Squibb Company and Pfizer, Inc.
Case Number: 17-2638
Judge: Richard J. Sullivan
Court: United States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)
Plaintiff's Attorney: Lawrence R. Lassiter
Defendant's Attorney: Neal Kumar Katyal, Eugene A. Sokoloff, Mitchell P. Reich, Loren H. Brown, Cara D. Edward and Lucas P. Przymusinski
Description:
Plaintiffs in this multi‐district litigation appeal from judgments entered by
the United States District Court for the Southern District of New York (Denise L.
Cote, J.) dismissing their products liability claims for injuries allegedly caused by
the drug Eliquis (apixaban). Specifically, Plaintiffs assert that the district court (1)
incorrectly denied motions to remand forty‐four of the sixty‐four cases before it,
and (2) wrongly concluded that Plaintiffs’ state law claims were preempted by the
Food, Drug, and Cosmetics Act (“FDCA”). Because, as explained below, we agree
that removal was proper and that Plaintiffs’ state law claims are preempted, we
AFFIRM.
I. BACKGROUND
Defendants Bristol‐Myers Squibb Co. (“BMS”) and Pfizer Inc. (“Pfizer”) are
pharmaceutical companies that are incorporated in Delaware and maintain their
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principal places of business in New York. Together, Defendants manufacture and
distribute Eliquis, a blood‐thinning medication used to reduce the risk of stroke in
patients with atrial fibrillation. As might be expected, Eliquis increases patients’
risk of bleeding. To that end, the drug, which was approved by the Food and Drug
Administration in 2012, carries warnings about the risk of serious, and possibly
fatal, bleeding events.
In 2015, plaintiffs nationwide began to bring products liability actions
against Defendants, asserting that they or their decedents had suffered excessive
bleeding after taking Eliquis that resulted in substantial injury (both physical and
financial) or even death. Although the suits arose under the laws of several states,
plaintiffs generally alleged that the injuries they or their decedents suffered were
attributable to the improper design of Eliquis and the insufficient warning labels
that accompanied the drug. Seventeen such suits made their way to the United
States District Court for the Southern District of New York, where they were
assigned to Judge Cote. The district court ordered the parties to identify a single
bellwether case, and the parties selected Utts v. Bristol‐Myers Squibb Co., No. 16‐cv‐
5688, for that purpose. Defendants moved to dismiss the complaint in that
exemplar action, and on December 23, 2016, the district court granted Defendants’
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motion in part. See Utts v. Bristol‐Myers Squibb Co., 226 F. Supp. 3d 166, 189
S.D.N.Y. 2016) (“Utts I”). The district court concluded that most of the claims in
the Utts complaint, including the failure‐to‐warn claims, were preempted by the
FDCA, and that the others simply did not meet the Rule 8 pleading threshold. Id.
The district court dismissed the design defect allegations with prejudice, but
granted leave to amend the remaining claims. Id. The Utts plaintiffs filed their
first amended complaint on January 20, 2017.
Following the district court’s dismissal of the original complaint in Utts, the
Judicial Panel on Multidistrict Litigation transferred all Eliquis products liability
actions pending in federal court to the Southern District of New York and assigned
them to Judge Cote. See S.D.N.Y. Case. No. 17‐md‐2754 (DLC), Doc. No. 1. Judge
Cote thereafter determined that the best procedure for the MDL would be to (1)
allow the plaintiffs in Utts to amend their complaint again, (2) have the parties
brief a motion to dismiss that complaint, and then, (3) following its ruling on the
motion to dismiss the amended complaint in Utts, permit the parties either to (a)
proceed to discovery in all cases (if the motion were denied) or (b) have the non‐
Utts plaintiffs show cause why their similar complaints should not also be
dismissed on the grounds set out in the Utts opinion. The parties agreed.
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The plaintiffs in Utts amended their complaint on February 24, 2017, setting
out ten claims for: (1) manufacturing defect; (2) failure to warn; (3) strict liability;
(4) negligence; (5) breach of express warranty; (6) breach of implied warranty; (7)
fraudulent concealment; (8) negligent misrepresentation; (9) violation of the
California consumer protection laws; and (10) loss of consortium. Defendants
again moved to dismiss, and the district court again granted the motion, rejecting
all of the Utts plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6). See
Utts v. Bristol‐Myers Squibb Co., 251 F. Supp. 3d 644, 684 (S.D.N.Y. 2017) (“Utts II”).
Following the entry of Utts II, the district court gave the plaintiffs in the other
pending MDL suits two weeks to (1) amend their complaints and (2) show cause
why those complaints should not be dismissed in light of Utts II. Out of sixtyeight
then‐pending actions, just nineteen plaintiffs attempted to show cause why
dismissal was not warranted. None was successful.
As it had earlier in the case, the district court set out its reasoning in an
exemplar opinion – this time, Fortner v. Bristol‐Myers Squibb Co., No. 17‐cv‐1562
(DLC), 2017 WL 3193928 (S.D.N.Y. July 26, 2017). In that decision, the district court
concluded that (1) Plaintiffs’ negligence and strict liability claims were preempted
by the FDCA to the extent they were based on a design defect theory, and to the
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extent they were based on a “failure to warn” theory, they were preempted by the
FDCA and failed due to the label’s adequacy as a matter of law; (2) the breach of
warranty claims failed to state a claim; (3) the fraudulent concealment and
negligent misrepresentation claims failed under Rule 9(b); and (4) the state law
consumer protection claims were preempted and, in any event, failed to state a
claim. Id. at *2–5. The district court then applied that reasoning to dismiss the
other eighteen suits before it. Plaintiffs timely appealed those dismissals, which
were consolidated in this Court on September 15, 2017.
However, at the time the district court dismissed the nineteen actions before
it, not all Eliquis cases pending nationwide had become part of the MDL. Thus, at
least thirty‐three cases – all brought by the same counsel, Salim‐Beasley, LLC –
were pending in federal court in California awaiting transfer to the MDL at the
time of Utts II. Following the district court’s dismissal order in Utts II, the plaintiffs
in these thirty‐three California actions voluntarily dismissed their suits without
prejudice and refiled them in Delaware state court. Two days later, Defendants –
who had not yet been served with the Delaware complaints – removed the actions
to the United States District Court for the District of Delaware and requested that
they be transferred and consolidated into the MDL before Judge Cote. For their
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part, the plaintiffs in the thirty‐three Delaware actions asked the District of
Delaware to remand their cases to state court, arguing that because the only basis
for federal court jurisdiction was diversity of citizenship, Defendants’ status as
citizens of Delaware meant that removal was prohibited under 28 U.S.C.
§ 1441(b)(2). The District of Delaware denied the plaintiffs’ motions, see Young v.
Bristol‐Myers Squibb Co., No. 17‐609‐LPS, 2017 WL 2774735, at *3 (D. Del. June 27,
2017), and transferred the actions to Judge Cote, who eventually dismissed them
with prejudice for the reasons articulated in Utts II. Plaintiffs have not appealed
the dismissal of those actions.
Nevertheless, additional Eliquis plaintiffs – also represented by Salim‐
Beasley, LLC – adopted a new strategy whereby they filed a series of new suits in
Delaware state court. When Defendants again removed the cases to federal court
in Delaware before service, the new plaintiffs consented to the transfer of these
removed actions to the MDL, and then asked Judge Cote to remand the suits to
Delaware state court. See, e.g., Cheung v. Bristol‐Myers Squibb Co., 282 F. Supp. 3d
638, 641 (S.D.N.Y. 2017) (addressing four such actions). The district court denied
Plaintiffs’ remand motions, see id. at 644, and then applied the earlier reasoning of
Utts II and Fortner to dismiss all forty‐five actions that came to it by this route (the
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“Transferred Actions”). The plaintiffs in the Transferred Actions timely appealed,
and the forty‐five Transferred Actions were consolidated on appeal with the
nineteen Eliquis actions already pending before this Court, of which fifteen now
remain.1
II. STANDARD OF REVIEW
“We review a district court’s denial of a motion to remand de novo.”
O’Donnell v. AXA Equitable Life Ins. Co., 887 F.3d 124, 128 (2d Cir. 2018). “In
reviewing a denial of a motion to remand, ‘the defendant bears the burden of
demonstrating the propriety of removal.’” Id. (quoting Cal. Pub. Emps.’ Ret. Sys. v.
WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004)). We also “review de novo a district
court’s decision to grant a motion under Federal Rule of Civil Procedure 12(b)(6).”
Spinelli v. Nat’l Football League, 903 F.3d 185, 196 (2d Cir. 2018) (emphasis added).
III. DISCUSSION
A. Removal
Plaintiffs first challenge the district court’s denial of their motions to remand
the Transferred Actions. Specifically, Plaintiffs argue that because the only basis
1 The other forty‐nine cases were voluntarily dismissed prior to oral argument. See Motion
Order, No. 17‐2638 (2d Cir. June 20, 2018), ECF No. 128.
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for federal court jurisdiction is diversity of citizenship,2 and because BMS and
Pfizer were sued in the state courts of their home state (Delaware), removal was
barred by the forum defendant rule, 28 U.S.C. § 1441(b)(2), and the cases therefore
should be remanded to state court. We disagree.
Generally, any civil suit initiated in state court over which a district court
would have had original jurisdiction “may be removed by . . . the defendants, to
the district court of the United States for the district . . . embracing the place where
such action is pending.” 28 U.S.C. § 1441(a). Section 1441 permits removal on the
basis of either federal question jurisdiction or diversity of citizenship. See Marcus
v. AT&T Corp., 138 F.3d 46, 52 (2d Cir. 1998). But where, as here, the only basis for
federal subject‐matter jurisdiction is diversity of citizenship under 28 U.S.C.
§ 1332, “the forum defendant rule applies.” Encompass Ins. Co. v. Stone Mansion
Rest. Inc., 902 F.3d 147, 152 (3d Cir. 2018). Under that rule, which is set out at 28
U.S.C. § 1441(b)(2), a suit that is “otherwise removable solely on the basis of . . .
[diversity of citizenship] may not be removed if any of the parties in interest
properly joined and served as defendants is a citizen of the State in which such
action is brought.”
2 The parties do not contest that the plaintiffs in all fifteen actions now before this Court are
diverse from Defendants.
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In the usual case, application of the forum defendant rule is straightforward:
a defendant is sued in a diversity action in the state courts of its home state, is
served in accordance with state law, attempts to remove the case, and is rebuffed
by a district court applying Section 1441(b)(2). See, e.g., Wilmington Tr., N.A. v.
Pearson, No. 18‐cv‐4845 (PAC), 2018 WL 3918182, at *1 (S.D.N.Y. Aug. 16, 2018).
Here, however, Defendants removed each of the Transferred Actions to federal
court after the suit was filed in state court but before any Defendant was served.
The district court, reasoning from the text of the statute, concluded that such
removal was proper. Cheung, 282 F. Supp. 3d at 641–42;3 see also Stan Winston
Creatures, Inc. v. Toys ‘R’ Us, Inc., 314 F. Supp. 2d 177, 180 (S.D.N.Y. 2003). Other
district courts in this Circuit have reached the opposite conclusion. See, e.g.,
Torchlight Loan Servs., LLC. v. Column Fin., Inc., No. 12‐cv‐8579 (RWS), 2013 WL
3863887, at *2 (S.D.N.Y. July 24, 2013); In re IntraLinks Holdings, Inc. Derivative Litig.,
No. 11‐cv‐9636 (TPG), 2013 WL 929836, at *1–2 (S.D.N.Y. Mar. 11, 2013).
Nevertheless, in resolving this split among district courts, we agree with the
district court here that 28 U.S.C. § 1441(b)(2) is no barrier to the removal of the
3 The District of Delaware reached the same conclusion – that the text of Section 1442(b)(2) was
no barrier to pre‐service removal by a home‐state defendant – in denying the motion to remand
the thirty‐three California actions. Young, 2017 WL 2774735, at *2. However, those actions are
not before this Court.
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Transferred Actions.
“Every exercise in statutory construction must begin with the words of the
text.” Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003). As the Third
Circuit – the only other Court of Appeals to address the propriety of pre‐service
removal by a defendant sued in its home state – recognized in Encompass Insurance,
“the language of the forum defendant rule in section 1441(b)(2) is unambiguous.”
902 F.3d at 152. The statute plainly provides that an action may not be removed
to federal court on the basis of diversity of citizenship once a home‐state defendant
has been “properly joined and served.” 28 U.S.C. § 1441(b)(2) (emphasis added). By
its text, then, Section 1441(b)(2) is inapplicable until a home‐state defendant has
been served in accordance with state law; until then, a state court lawsuit is
removable under Section 1441(a) so long as a federal district court can assume
jurisdiction over the action.
In fact, Plaintiffs do not even attempt to argue that the text of Section
1441(b)(2) supports their position. Instead, Plaintiffs argue that the Court should
depart from the plain meaning of Section 1441(b)(2) because applying the text of
the statute (1) produces an absurd result and (2) will lead to non‐uniform
application of the removal statute depending on the provisions of state law.
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Neither argument is persuasive.
“It is, to be sure, well‐established that ‘[a] statute should be interpreted in a
way that avoids absurd results.’” Sec. Exch. Comm’n v. Rosenthal, 650 F.3d 156, 162
(2d Cir. 2011) (quoting United States v. Venturella, 391 F.3d 120, 126 (2d Cir. 2004)).
That being said, a statute is not “absurd” merely because it produces results that a
court or litigant finds anomalous or perhaps unwise. To the contrary, courts
should look beyond a statute’s text under the canon against absurdity “only
‘where the result of applying the plain language would be, in a genuine sense,
absurd, i.e., where it is quite impossible that Congress could have intended the
result and where the alleged absurdity is so clear as to be obvious to most
anyone.’” Catskill Mountains Chapter of Trout Unlimited, Inc. v. Envtl. Prot. Agency,
846 F.3d 492, 517 (2d Cir. 2017) (quoting Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S.
440, 470–71 (1989) (Kennedy, J., concurring in the judgment)).
Plaintiffs argue that applying the plain text of Section 1441(b)(2) produces
an absurd result in light of the overarching purpose of the removal statute, which
is to allow an out‐of‐state defendant to escape prejudice in the state courts of the
plaintiff’s home state by ensuring that a fair federal tribunal is available. In light
of this broad purpose, Plaintiffs frame the forum defendant rule as a carve‐out,
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premised on the understanding that defendants are unlikely to be “home‐towned”
in their home state’s courts. Plaintiffs then explain the inclusion of the phrase
“properly joined and served” as Congress’s further recognition that crafty
plaintiffs might take advantage of the forum defendant rule to secure a state‐court
trial by naming an unnecessary home‐state defendant against which they did not
intend to proceed. Thus, Plaintiffs assert that it is absurd to allow a home‐state
defendant to use an exception meant to protect defendants from unfair bias (in the
courts of a plaintiff’s home state) and language designed to shield them from
gamesmanship (in the form of fraudulent joinder) to remove a lawsuit to federal
court.
Plaintiffs are, of course, correct about the general purposes of the removal
statute. See Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 940 (9th Cir. 2006)
(“Removal based on diversity jurisdiction is intended to protect out‐of‐state
defendants from possible prejudices in state court.”). But while it might seem
anomalous to permit a defendant sued in its home state to remove a diversity
action, the language of the statute cannot be simply brushed aside. Allowing a
defendant that has not been served to remove a lawsuit to federal court “does not
contravene” Congress’s intent to combat fraudulent joinder. Encompass Ins., 902
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F.3d at 153. In fact, Congress may well have adopted the “properly joined and
served” requirement in an attempt to both limit gamesmanship and provide a
bright‐line rule keyed on service, which is clearly more easily administered than a
fact‐specific inquiry into a plaintiff’s intent or opportunity to actually serve a
home‐state defendant. See Cheung, 282 F. Supp. 3d at 643. Absurdity, then, cannot
justify a departure from the plain text of the statute.
Plaintiffs also urge us to look past the language of Section 1441(b)(2) to avoid
“non‐uniform application” of the forum defendant rule based on the vagaries of
state law service requirements. Plaintiffs are correct that allowing home‐state
defendants to remove on the basis of diversity before they are served might mean
that defendants sued in some states – those that require a delay between filing and
service, like Delaware – will be able to remove diversity actions to federal court
while defendants sued in others – those that permit a plaintiff to serve an action
as soon as it is filed – will not. But state‐by‐state variation is not uncommon in
federal litigation, including in the removal context, see, e.g., Murphy Bros., Inc. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344, 354–55 (1999) (discussing state‐specific
variations in connection with the deadline to remove a suit to federal court), and
it does not follow from the existence of variation that we must look beyond the
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plain text of Section 1441(b)(2).
Put simply, the result here – that a home‐state defendant may in limited
circumstances remove actions filed in state court on the basis of diversity of
citizenship – is authorized by the text of Section 1441(b)(2) and is neither absurd
nor fundamentally unfair. We therefore have no reason to depart from the
statute’s express language and must affirm the district court’s denial of Plaintiffs’
motions to remand.
B. Dismissal
Plaintiffs also challenge the district court’s dismissal of the remaining sixtyfour
suits – fifteen of which are now before us – on the grounds that their failureto‐
warn claims are preempted by the FDCA. Because we agree with the district
court that Plaintiffs’ negligence and strict liability claims, as alleged, are
preempted, we affirm the dismissal of those claims.4
4 While Plaintiffs purport to contest the dismissal of their complaints in their entirety, they make
no arguments regarding the district court’s conclusion that their breach of warranty, fraud, or
state consumer protection law claims were inadequately pled. For that reason, we decline to
address those claims. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
sufficiently argued in the briefs are considered waived and normally will not be addressed on
appeal.”). And while Plaintiffs do challenge the district court’s purported error in “sua sponte
considering, ruling on, and granting motions that Appellees never made in their cases,” as well
as its finding that the adequacy of Eliquis’s label could be determined at this stage in the
proceeding, we need not reach these arguments given our affirmance of the district court’s
conclusion as to preemption.
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The federal government regulates the manufacture, labeling, and sale of
pharmaceuticals pursuant to the FDCA. 21 U.S.C. § 301 et seq.; see also Merck KGaA
v. Integra Lifesciences I, Ltd., 545 U.S. 193, 196 (2005). To bring a drug to market, a
manufacturer must file a new drug application, which must explain the
drugmaker’s tests and studies, demonstrate that the drug is “safe for use under
the conditions prescribed,” and include proposed labeling language. 21 U.S.C.
§ 355(b)(1)(A), (b)(1)(F), (d). “The FDA’s premarket approval of a new drug
application includes the approval of the exact text in the proposed label.” Wyeth
v. Levine, 555 U.S. 555, 568 (2009).
The FDA can direct a pharmaceutical manufacturer to change a drug’s label
after it has entered the market, see 21 U.S.C. § 355(o)(4), but “manufacturers, not
the FDA, bear primary responsibility for their drug labeling at all times,” Wyeth,
555 U.S. at 579. Nevertheless, drug manufacturers are limited in their ability to
unilaterally change the labels on their products. Specifically, to make a change on
their own, a manufacturer must comply with the “changes being effected” (“CBE”)
regulation, set forth at 21 C.F.R. § 314.70(c)(6)(iii). That regulation
allows drug manufacturers to change [a label] without the FDA’s
preapproval if the changes ‘add or strengthen a contraindication,
warning, precaution, or adverse reaction,’ or ‘add or strengthen an
instruction about dosing and administration that is intended to
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increase the safe usage of the drug product,’ in order to ‘reflect newly
acquired information.’
Wyeth, 555 U.S. at 591 (internal citations omitted) (quoting 21 C.F.R.
§ 314.70(c)(6)(iii)(A), and 21 C.F.R. § 314.70(c)(6)(iii)(C)). “Newly acquired
information” can include either new data or new analyses of previously submitted
data. See 21 C.F.R. § 314.3(b).
“The Supremacy Clause establishes that federal law ‘shall be the supreme
Law of the Land . . . any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.’” PLIVA, Inc. v. Mensing, 564 U.S. 604, 617 (2011)
(quoting U.S. Const. art. VI, cl. 2). Where federal and state law conflict – that is,
where it is impossible for a party to follow both federal and state law – state law
must give way. Id. Because manufacturers may unilaterally update a drug’s label
if the change complies with the CBE regulation, a state law failure‐to‐warn claim
that depends on newly acquired information – information that Defendants could
have added to their label without FDA approval – is not preempted. See Wyeth,
555 U.S. at 568–72; see also In re Celexa & Lexapro Mktg. & Sales Practices Litig., 779
F.3d 34, 40–41 (1st Cir. 2015).
Following Wyeth, PLIVA, and a third case that addressed FDCA preemption
of state law failure‐to‐warn claims in connection with generic drugs, Mutual
18
Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. 472 (2013), the Courts of Appeals have
synthesized the requirements to properly plead and then prove a state law failureto‐
warn claim based on post‐drug‐release information. Thus, to state a claim for
failure‐to‐warn that is not preempted by the FDCA, a plaintiff must plead “a
labeling deficiency that [Defendants] could have corrected using the CBE
regulation.” In re Celexa, 779 F.3d at 41; see also Dolin v. GlaxoSmithKline LLC, 901
F.3d 803, 812 (7th Cir. 2018). If the plaintiff meets that standard, the burden shifts
to the party asserting a preemption defense to demonstrate that there is “‘clear
evidence that the FDA would not have approved a change’ to the [prescription
drug’s] label.” In re Fosamax (Alendronate Sodium) Prods. Liab. Litig., 852 F.3d 268,
283 (3d Cir. 2017) (quoting Wyeth, 555 U.S. at 571).
Plaintiffs’ claims here fail at the first step because, as the district court
recognized, they consist of “conclusory and vague” allegations and do not
plausibly allege the existence of newly acquired information that could have
justified Defendants’ revising the Eliquis label through the CBE regulation. For
example, the operative complaint in Fortner v. Bristol‐Myers Squibb Co. & Pfizer Inc.,
which is representative of all the pleadings now before us, alleges that “[b]efore
and after marketing Eliquis, [D]efendants became aware of many reports of
19
serious hemorrhaging in users of [their] drugs” and that “[n]umerous . . . studies
published after Eliquis’ approval in 2012 confirm the problematic bleeding events
associated with Eliquis.” Joint Appendix 1345–46, ¶¶ 62, 66. However, for these
“reports” and “studies” to constitute newly acquired information, as the term is
defined in 21 C.F.R. § 314.3(b), they must have “reveal[ed] risks of a different type
or greater severity or frequency than previously included in submissions to the
FDA.” Id. As the district court observed, the Fortner complaint provides no basis
upon which the court could conclude that the bleeding events covered by the
alleged “reports” and “studies” presented a different type of risk than those the
company had discussed with the FDA, or were more severe or more frequent than
bleeding events that the government already knew about. See In re Celexa, 779 F.3d
at 42–43. Accordingly, Plaintiffs’ complaints were properly dismissed.
On appeal, Plaintiffs attempt to make hay out of the district court’s
references to Utts II in its Fortner opinion. Specifically, Plaintiffs argue that the
Utts complaint attached nine “reports, studies, and articles” that the district court
relied on in concluding that the Utts plaintiffs had failed to allege “newly acquired
information” within the meaning of the relevant regulations. Utts II, 251 F. Supp.
3d at 663–72. But because the Fortner complaint removed all references to the
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reports, studies, and articles that were attached to the Utts complaint (compare
S.D.N.Y. Case. No. 16‐cv‐5668 (DLC), Doc. No. 33 with Joint Appendix 1335–72),
Plaintiffs now argue that the district court’s reliance on Utts II in Fortner must have
improperly considered the reports, studies, and articles, which Plaintiffs assert
were not part of the pleadings in Fortner.
Plaintiffs misread Fortner. Although the district court explained that the
allegations in the operative complaint in that case simply amounted to a lessdetailed
restatement of the Utts II allegations, it did not dismiss the Fortner
complaint because of the insufficiency of the sources cited in the second amended
Utts complaint. Instead, it reasoned that the Fortner complaint – and, by extension,
the other complaints now before this court – did not provide enough information
about the existence of newly‐acquired information to meet the Rule 8 threshold of
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. Proc. 8(a)(2). Because we agree that Plaintiffs’ complaints lack
sufficient factual allegations to state a claim that is not preempted, we affirm the
judgments below.
Moreover, had the district court erred in the manner Plaintiffs suggest
(which it did not), we would still affirm, since – as discussed above – Plaintiffs’
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complaints simply do not contain sufficient factual information to state a claim,
and we “may affirm on any grounds for which there is a record sufficient to permit
conclusions of law.” Mitchell v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016)
(quoting Holcomb v. Lykens, 337 F.3d 217, 223 (2d Cir. 2003)).
Outcome: For the foregoing reasons, we AFFIRM the district court’s denial of the
motions to remand the Transferred Actions and AFFIRM the district court’s
dismissal of the fifteen actions now before this Court.
Plaintiff's Experts:
Defendant's Experts:
Comments: