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Brown v. Endo Pharms., Inc.

United States District Court, S.D. Alabama, Southern Division

August 5, 2014

PEYTON POWELL BROWN, as Administratrix ad litem of the Estate of Jason DeWitt Powell, deceased, Plaintiff,
v.
ENDO PHARMACEUTICALS, INC., et al., Defendants

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For Peyton Powell Brown, as administratrix ad litem of the estate of Jason DeWitt Powell, decreased, Plaintiff: Edward G. Bowron, LEAD ATTORNEY, Burr & Forman, LLP, Mobile, AL; Frederick P. Gilmore, LEAD ATTORNEY, Gilmore Law Office, Grove Hill, AL; Wyman O. Gilmore , Jr., LEAD ATTORNEY, Grove Hill, AL; Taylor Noelle Barr, Mobile, AL.

For Endo Pharmaceuticals, Inc., Defendant: Carrie Meade Hartfield, LEAD ATTORNEY, Birmingham, AL; Sara Marie Turner, LEAD ATTORNEY, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, AL.

For Alex Stebbins, Defendant: J. Jefferson Utsey, LEAD ATTORNEY, Utsey & Utsey, Butler, AL.

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ORDER

WILLIAM H. STEELE, CHIEF UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on Plaintiff's Motion for Remand (doc. 8). The Motion has been briefed and is now ripe for disposition.

I. Background.

Plaintiff, Peyton Powell Brown, brought this action against defendants, Endo Pharmaceuticals, Inc. and Alex Stebbins, in the Circuit Court of Clarke County, Alabama. The Complaint alleged that plaintiff's decedent, Jason Dewitt Powell, died on March 28, 2012 after crushing and snorting Opana, a tablet form of the prescription painkiller oxymorphone. According to well-pleaded allegations of the Complaint, defendant Endo manufactured these Opana tablets despite knowledge of risks to producing that medication in a form that could be crushed, broken and/or dissolved, thereby releasing high concentrations of oxymorphone and escalating the dangers to the end user. The Complaint alleges that defendant Alex Stebbins (who is alleged to have " previously held a nursing license" ) supplied Opana to Powell on March 27, 2012, and that Powell's ingestion of same caused his death hours later. ( See doc. 1, Exh. A, at 9-10.) On the basis of these factual allegations, Brown's Complaint presented purely state-law claims of negligence and wantonness against Endo and Stebbins, and demanded punitive damages against both defendants pursuant to Alabama's Wrongful Death Act, as codified at Ala. Code § 6-5-410.[1]

On May 7, 2014, defendant Endo Pharmaceuticals filed a Notice of Removal (doc. 1), removing this action to federal court. The Notice of Removal alleged that " [t]his Court has jurisdiction over this action pursuant to 28 U.S.C. § § 1331 (federal question jurisdiction) and 1332 (diversity of citizenship)." (Doc. 1, ¶ 1.) As to the former, Endo contended that Brown's " claims implicate substantial questions of federal law" because (i) they " involve the design, manufacture and distribution of Opana Tablets, a highly regulated Schedule II controlled narcotic substance" and (ii) they " effectively seek[] to challenge the decision by federal regulatory authorities to authorize the manufacture and distribution of Opana non-crush resistant tablets." ( Id., ¶ ¶ 30-33.) As to the latter, Endo's position was that Brown and Endo were of diverse citizenship, and that Stebbins' non-diverse citizenship (both Brown and Stebbins are identified in the Complaint as Alabama citizens) may be disregarded because he was fraudulently joined. ( Id., ¶ ¶ 9-17.)

Plaintiff has now filed a Motion for Remand, challenging the existence of federal subject matter jurisdiction (under either a federal question or a diversity theory) and seeking remand of this case to Clarke County. For its part, Endo opposes the Motion, arguing that jurisdiction is proper and, alternatively, asking that plaintiff's claims ...


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