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Okay, so you’d really like to remove that case that the other side filed in one of the notorious litigation tourist traps, but. . . .  The insignificant in-state – that is to say, nondiverse – defendant was held not to be fraudulently joined, so your case was remanded to state court.  What next?

Defense lawyers shouldn’t give up.  We’ve written before about Bauman and the new personal jurisdiction arguments it may provide.

But other, less novel approaches also exist.  How about forum non conveniens?

That’s the lesson of the recent California trial court decision in In re Accutane Drug Cases, 2014 WL 3579826, slip op. (Cal. Super. L.A. Co. July 21, 2014), obtained courtesy of Brian Ziska at Shook Hardy.

The defendant in Accutane was the same boat as a lot of defendants in California litigation.  Plaintiffs from all over the country, literally from New York to Washington state, joined a factually insignificant  in-state drug distributor (McKesson Corp.) for the purpose of defeating diversity jurisdiction, and for that reason alone.  We’ve blogged about this fact pattern before, and it’s undoubtedly duplicated in dozens of fraudulent joinder/remand cases from California.

Once back in state court, the defendant moved to have the case sliced up (severing the 7 non-resident plaintiffs that had been misjoined in one complaint) and shipped off to the states where these litigation tourists lived on grounds of forum non conveniens.  The court (Judge Freeman of the L.A. County complex litigation docket) agreed and sent the tourists home.

Suitable Alternative Forum – Basically, any state in the U.S. is a suitable alternative forum.  Slip op. at 3-5.  Beyond that, consenting to jurisdiction in the proper forum and making suitable statute of limitations arrangements take care of this factor.  Id. at 4-5.

Private Interest Factors – These litigation tourists don’t belong here.  Slip op. at 6.  They don’t live here; weren’t treated or prescribed the drug in question here.  Id.  The target defendant isn’t from here, either.  Id. at 6.  The only party with any connection to California is McKesson, and it has next to nothing to do with any issues in the case.  The drug wasn’t made or tested here.  Id.

That means that there are no California fact witnesses.  It also means there’s no easy way for a California state court to subpoena the fact witnesses.  Id. at 6-7.  Litigating these cases in the plaintiffs’ home states is cheaper and more efficient.  Id.

Public Interest Factors – California has more litigation tourists than probably any other state (although Illinois might beg to disagree).  Our courts and jurors are being overburdened by litigation of no concern to the community.  Slip op. at 7.  “[C]ompared to the Plaintiffs’ domiciles, California’s interest in hearing these particular Plaintiffs’ claims is small.”  Id.

Other Considerations – Plaintiffs go home!  Go east – or north – young lawyers.

Where all parties live outside California, and the action arises elsewhere, forum non conveniens may compel dismissal.  California has no interest in providing a forum for disputes between nonresidents involving claims about which California has no interest:  Under these circumstances, even if general jurisdiction is assumed, it would be an abuse of discretion for a trial court to do anything but dismiss the actions.
California’s interest in the case is minimal.  The two major Defendants, . . . are located outside of California, and manufactured [the drug] outside of California.  It was distributed in California by the one California party to the case, McKesson Corporation.  However, all of the listed Plaintiffs are out-of-state residents, and were prescribed Accutane outside of California by non-California physicians. Thus, notwithstanding the listed Plaintiffs’ choice of California as a forum, these competing facts (demonstrating California’s minuscule interest in these particular claims) demonstrate that granting the motion is appropriate.

Slip op. at 8 (citations and quotation marks omitted) (emphasis original).

These are strong words that we like to hear. We’ve cheered on similar forum non conveniens progress in Illinois. We hope to see more rulings like this – that’s why we’re letting you know about the decision.

As for these plaintiffs, they can:  (1) never re-file, (2) re-file in their home state’s court, where they may well find themselves in federal court on diversity jurisdiction, (3) re-file in some other federal court (and perhaps be transferred), or (4) re-file in the defendant’s home state (not as attractive as before) where the forum defendant rule may prevent removal.

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FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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