United States District Court, D. Alaska
TIMOTHY M. BURGESS, District Judge.
On December 23, 2005, Plaintiff State of Alaska ("State") filed this lawsuit against Defendant Merck & Co., Inc. ("Merck") pursuant to the Unfair Trade Practices and Consumer Protection Act, AS 45.50.471 et seq. (UTPA). The State alleges that Merck, a pharmaceutical company, knowingly engaged in misrepresentations concerning the advertising, soliciting, selling, and distribution of a drug called Vioxx to consumers in Alaska. On June 14, 2006, the Judicial Panel on Multidistrict Litigation (MDL) transferred the case to the Eastern District of Louisiana where two cases alleging similar claims against Merck were already pending. After eight years in Louisiana, the case returned to this Court. On December 3, 2014, the State filed a renewed/supplemental motion for remand; Merck opposes. For the reasons that follow, the State's Supplemental Motion to Remand at Docket 46 is GRANTED.
Merck began marketing Vioxx to the public in May 1999. Initially, Vioxx was approved for the treatment of osteoarthritis and primary dysmenorrhea and for the management of acute pain in adults. Merck requested Vioxx be placed on the Alaska Medicaid Program's list of drugs subject to reimbursement, representing that the drug was at least as safe as other drugs on the market that are in a similar class or used for the same purposes. Research and clinical trials revealed, however, that the use of Vioxx increases the risk of a heart attack and other serious cardiovascular and cerebrovascular medical complications. On September 30, 2004, Merck withdrew Vioxx from the market.
The State filed a complaint against Merck in the Superior Court for the State of Alaska on December 23, 2005, alleging that Merck engaged in "unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce" in violation of the UTPA. The State claims that Merck started marketing Vioxx to physicians, the State, and the public in Alaska as "safe and effective" when Merck knew that Vioxx was unsafe and presented significant health risks. The State contends that Merck also withheld or concealed additional knowledge of the drug's dangers obtained after Vioxx was advertised and sold to consumers.
According to the State, Merck's misrepresentations regarding the safety of Vioxx "induced the State of Alaska to authorize expenditures of Medicaid funds for the purchase of Vioxx... result[ing] in the expenditure of millions of dollars of state funds or state controlled funds on Vioxx." Additionally, the State contends that Merck launched two campaigns in relation to the marketing of Vioxx: "an expensive, promotional advertising campaign to convince lay people to request Vioxx from their healthcare professionals for the treatment of their pain" and a "campaign of intimidation against researchers and physicians who questioned the safety of Vioxx." During these campaigns, Merck allegedly knew about the harmful effects of Vioxx, which were confirmed by the company's own medical research. The State's original complaint sought the recovery of "the value of all payments that the State of Alaska made for Vioxx prescriptions." In its amended complaint, the State eliminated that language and seeks injunctive relief, civil penalties, costs and attorney's fees, and pre-judgment and post-judgment interest.
On January 17, 2006, Merck removed the case to federal court on the basis of federal question jurisdiction. Merck argued that the State's claims implicate two areas of federal law: the Food, Drug & Cosmetic Act, 21 U.S.C. § 301, et seq. (FDCA), and the statutes regulating Medicaid, 42 U.S.C. §§ 1396r-8(d)(1)(B), (d)(4). Merck then requested a stay of the proceedings pending transfer of the case to the MDL Panel. Subsequently, the State filed a motion to remand with the Court, which was opposed by Merck.
On February 7, 2006, the MDL Panel issued a conditional transfer of the case to the Vioxx MDL in the Eastern District of Louisiana, stating that the action involves "questions of fact which are common to the actions previously transferred" to the Vioxx MDL. Based on the MDL Panel's conditional transfer order, the Court granted Merck's request to stay the proceedings. The Court reasoned: "As this case does not plainly warrant immediate remand, the Court finds that transfer to the MDL panel will promote efficient and coordinated proceedings, including the consideration of remand motions."
In October 2014, the case returned to this Court. On December 3, 2014, the State filed a renewed/supplemental motion for remand. The State argues that the original and amended complaints allege claims under only Alaska law and that Merck's liability "depends only on whether its conduct violated Alaska law." Merck opposes the remand, again asserting that the Court has federal question jurisdiction because the State's claims "directly implicate federal Medicaid law."
III. LEGAL STANDARD
The removing party bears the burden of establishing federal jurisdiction. In a case brought by a sovereign state, federal courts are advised to be "reluctant to snatch cases which a State has brought from the courts of that State, unless some clear rule demands it." Once the case has been removed, the nonmoving party bears the burden of proof and persuasion in establishing that remand is appropriate. The Court will decline to exercise jurisdiction and remand the case to the state court "if there is any doubt as to the right of removal in the first instance."
Merck removed the instant action on the basis of federal question jurisdiction. Federal question jurisdiction can exist over claims asserted under state law, as long as the state law claims: (1) "necessarily raise a stated federal issue"; (2) the federal issue is "actually disputed and substantial"; and (3) the issue is one "which a federal forum may entertain without disturbing any congressionally approved balance of federal and state responsibilities." Even a complaint brought in state court that makes explicit allegations involving violations of federal law does not necessarily ...