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AETNA U.S. HEALTHCARE, INC. v. AKTIENGESELLSCHAFT

April 30, 1999

AETNA U.S. HEALTHCARE, INC, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
HOECHST AKTIENGESELLSCHAFT, HOECHST MARION ROUSSEL, INC., AND ANDRX PHARMACEUTICALS, INC., DEFENDANTS.



The opinion of the court was delivered by: Lamberth, District Judge.

MEMORANDUM AND ORDER

This matter comes before the court on Plaintiff's Motion [13] to Remand for Lack of Subject Matter Jurisdiction and Defendant Andrx Pharmaceuticals, Inc.'s Motion [12] for a Stay Pending Multidistrict Coordination. Upon consideration of these motions and the applicable oppositions, replies, and supplemental submissions, the court will DENY plaintiff's motion to remand and GRANT defendant Andrx Pharmaceuticals, Inc.'s motion for a stay pending multidistrict coordination.

I. Introduction

Plaintiff originally filed this action in the Superior Court of the District of Columbia. In its complaint, plaintiff avers antitrust claims for treble damages under the District of Columbia Restraint of Trade Act, D.C.Code §§ 28-4502 & -4503; for injunctive and equitable relief under the District of Columbia Restraint of Trade Act, D.C.Code § 28-4508; and for "unjust enrichment," or disgorgement, against defendants.

All defendants subsequently joined to file a notice of removal of this action to federal court.*fn1 Defendants base the subject matter jurisdiction for this removal upon federal-question and diversity jurisdiction. See 28 U.S.C. § 1331-1332. The court finds that it would have had diversity jurisdiction over this matter had plaintiff brought its case in federal court originally.*fn2 Defendants therefore have a statutory right to removal of this case under 28 U.S.C. § 1441 & 1446 and, consequently, plaintiff's motion to remand must be denied.

Plaintiff filed this class-action suit against defendants, pharmaceutical drug manufacturers, seeking remedies provided under the District of Columbia's antitrust statute. Plaintiff alleges that defendants unlawfully contracted and conspired to prevent the introduction into the market of less expensive generic versions of Cardizem CD, a prescription drug used for the treatment of angina, hypertension, and the prevention of heart attacks and strokes.

The primary illegal act of agreement among the defendants alleged is referred to by plaintiff as the Hoechst-Andrx Agreement. In this agreement, according to plaintiffs, defendants Hoechst Aktiengesellschaft and Hoechst Marion Rousset, Inc. ("the Hoechst defendants"), which were the pioneer manufacturers of Cardizem CD, and Andrx, which is the first producer of a generic version of the drug, entered into an agreement that effectively prevented any generic competition for Cardizem CD in the United States market-place. In exchange for the Hoechst defendants' agreement to pay forty million dollars annually to Andrx, Andrx agreed not to market its generic Cardizem CD product in the United States and to withdraw its counterclaims against the Hoechst defendants in pending patent litigation between the defendants. This agreement allegedly has the effect of precluding other generic competition from entering the market because, according to the complaint, other generic manufacturers cannot market their generic product until a 180-day exclusivity period ends. As a result of the interplay between the patent laws and the Hoechst-Andrx Agreement, however, this 180-day exclusivity period has not yet begun to run.*fn3 Thus, plaintiff alleges that defendants, in violation of the District of Columbia antitrust statute, have agreed to prevent the introduction of generic substitutes for Cardizem CD to preserve the monopoly enjoyed by the Hoechst defendants, as the pioneer company of the drug. As a result, and on behalf of itself, its subsidiaries, and all other persons similarly situated, plaintiff claims that it is and has been forced to pay artificially inflated, monopoly prices for Cardizem CD.

This theory of antitrust liability takes the form of three claims for relief, the third of which is determinative of the issues presented in the current context. Specifically, plaintiff asserts its third claim, for "unjust enrichment," in the following manner:

  The Hoechst Defendants have benefited from the acts
  alleged . . . resulting in the overpayment by
  plaintiff and the Class for Cardizem CD. . . .
  Defendant Andrx has benefited from the acts alleged .
  . . to the extent of the payments it has received and
  will continue to receive under the Hoechst-Andrx
  Agreement. The funds for such payments by Hoechst are
  derived from the plaintiff's and the Class'[s]
  overpayment for Cardizem CD. . . . It would be
  inequitable for Andrx to be permitted to retain any
  of the proceeds of the Hoechst-Andrx Agreement. . . .
  It would be inequitable for the Hoechst Defendants to
  be permitted to retain any of the plaintiff Class'[s]
  overpayment for Cardizem CD derived from their unfair
  and unconscionable methods, acts and trade practices
  described above, including but not limited to the
  Hoechst-Andrx Agreement. . . .

Plaintiff's Complaint ¶¶ 136-139. Based on these facts, the court must now decide whether defendants have properly removed this lawsuit to this federal court and, if the removal was proper, whether this litigation should be stayed pending the Judicial Panel on Multidistrict Litigation's ruling on defendants' motion to consolidate and transfer.

II. Analysis

A. General Principles

A party asserting federal jurisdiction bears the burden of proving that the action has been properly removed to federal court. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). Defendants jointly seek to remove this case under the removal authority provided by 28 U.S.C. § 1441. Section 1441 states that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendants or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). For a district court to have proper original diversity jurisdiction, the requirements of 28 U.S.C. § 1332 must be met. Under Section 1332(a), "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332. Even if such an action meets the requirements of 28 U.S.C. § 1332, however, it is removable only if "none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b).

No one contests that the parties are completely diverse for the purposes of 28 U.S.C. ยง 1332 or that none of the defendants is a citizen of the District of Columbia. Instead, the dispute centers around the final requirement for original diversity jurisdiction and, consequently, defendants' last hurdle in ...


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