No. 19-278 IN THE Supreme Court of the United States PFIZER, INC. AND GREENSTONE LLC, Petitioners, v. SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES et al., Respondents. On Petition for a Writ of Certiorari to the California Court of Appeal RESPONDENTS’ BRIEF IN OPPOSITION CHARLES G. ORR BURTON LEBLANC BARON & BUDD, P.C. Counsel of Record 3102 Oak Lawn Ave., #1100 BARON & BUDD, P.C. Dallas, Texas 75219 2600 Citiplace Dr. (214) 521-3605 Baton Rouge, LA 70808 (225) 927-5441 [email protected] Attorneys for respondents Alida Adamyan, et al. October 23, 2019 i QUESTIONS PRESENTED The state trial court in this case held that “Pfizer . acceded to the jurisdiction of the court by seeking a ruling on the merits of the California cases [while they were in federal court following removal.]” Pet. App. 12. In its Petition for Review to the California Supreme Court, Pfizer conceded that “federal law is unmistakably clear that forfeiture occurs when a party litigates on the merits, not jurisdiction.” Peti- tion for Review, Pfizer Inc. v. Superior Court of Cali- fornia, No. S255942, at 10 (May 23, 2019). And in this Court, Pfizer acknowledged that “a defendant forfeits personal jurisdiction if it litigates on the mer- its.” Pet. 19. Yet, Pfizer now claims that the California courts “crafted” a new “forfeiture rule” under which a party is held to forfeit its personal jurisdiction defense by removing and litigating subject matter jurisdiction without first moving to dismiss on personal jurisdic- tion grounds. E.g., Pet. i. Thus, the questions presented are: 1. Did the state court hold, as Pfizer asserts, that Pfizer waived its personal jurisdiction defense solely by litigating subject matter jurisdiction first, or did that court actually hold that, by litigating the merits against Plaintiffs before asserting its personal jurisdiction defense, Pfizer forfeited its personal jurisdiction defense? 2. Does this Court’s decision in Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999), allow a party, like Pfizer did here, to seek a merits determination before moving to dismiss on personal jurisdiction grounds? ii PARTIES TO THE PROCEEDING AND RELATED CASES The parties to the proceeding are listed in the pe- tition for a writ of certiorari. The following proceedings are directly related to this case: • Lipitor Cases, No. JCCP 4761, in the Superior Court of the State of California for the County of Los Angeles, judgment not yet entered. iii TABLE OF CONTENTS QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDING AND RELATED CASES ..................................................... ii INTRODUCTION ...................................................... 1 STATEMENT OF THE CASE ................................... 3 I. Plaintiffs began filing cases in California state court in 2013 and early 2014. ................ 3 II. In March 2014, Pfizer removed the California cases but did not seek dismissal on personal jurisdiction grounds. ....................................... 4 III. Long before asserting its personal jurisdiction defense, Pfizer litigated the merits against Plaintiffs (including moving for summary judgment against them). ................................. 6 A. Pfizer sought discovery from Plaintiffs and obtained an order requiring Plaintiffs to participate in discovery. .............................. 6 B. Pfizer sought summary judgment against Plaintiffs. ..................................................... 7 IV. Plaintiffs’ cases were transferred back to California federal court, whereupon Pfizer indicated personal jurisdiction was “moot” if the California federal courts kept the cases. ................................................................ 9 V. Rather than asserting its personal jurisdiction defense, Pfizer instead removed Plaintiffs’ cases a second time. ...................................... 11 iv VI. Pfizer finally moved to dismiss on personal jurisdiction grounds. ..................................... 12 REASONS FOR DENYING THE WRIT ................. 14 I. This case presents neither the question nor the conflict in authority that Pfizer says it does. ............................................................... 14 A. The state court did not hold that Pfizer forfeited its personal jurisdiction merely by removing the cases or by litigating subject- matter jurisdiction. ................................... 14 B. Far from being “quite literally unprecedented,” the state court’s ruling was anchored in authorities from this Court and the lower federal courts. ......... 16 II. Neither Ruhrgas nor anything else precluded Pfizer from timely moving to dismiss on personal jursdiction grounds. ....................... 19 III. The state court correctly held that Pfizer waived or forfeited its personal jurisdiction defense by litigating the merits against Plaintiffs. ....................................................... 22 A. Pfizer sought discovery from Plaintiffs without asserting its personal jurisdiction defense. ...................................................... 23 B. Pfizer moved for summary judgment against Plaintiffs without asserting its personal jurisdiction defense. ................... 24 CONCLUSION ......................................................... 28 v APPENDIX Appendix A Answer to Petition for Review in the Supreme Court of the State of California, No. S255942 (June 26, 2019) .............................. App. 1 Appendix B Plaintiffs’ Opposition to Defend- ant Pfizer Inc. and Greenstone LLC’s Motion to (1) Quash Ser- vice of Summons with Regard to the Claims of Non-California Plaintiffs for Lack of Personal Jurisdiction; or (2) Dismiss the Claims of Non-California Plain- tiffs for Forum Non Conveniens in the Superior Court of the State of California, County of Los Ange- les, Central Civil West, No. JCCP 4761 (September 21, 2018) ................... App. 41 Appendix C Defendants’ Omnibus Motion for Summary Judgment and Memo- randum in Support in the United States District Court for the Dis- trict of South Carolina, Charles- ton Division, MDL No. 2:14-mn- 02502-RMG (June 24, 2016) ............................ App. 97 vi TABLE OF AUTHORITIES Cases Pages Bel-Ray Co. v. Chemrite (Pty) Ltd., 181 F.3d 435 (3d Cir. 1999) ................................. 18 Brokerwood Prods. Int’l (U.S.), Inc. v. Cuisine Crotone, Inc., 104 F. App’x 376 (5th Cir. 2004) ......................... 17 Fidelity & Cas. Co. of N.Y. v. Tex. E. Transmission Corp., 15 F.3d 1230 (3d Cir. 1994) ................................. 17 In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 145 (2d Cir. 1987) ................................. 24 In re Asbestos Prods. Liab. Litig., 921 F.3d 98 (3d Cir. 2019) ................................... 18 In re FMC Corp. Patent Litig., 422 F. Supp. 1163 (J.P.M.L. 1976) ...................... 24 In re Lipitor, No. CV-18-01725-CJC (C.D. Cal., May 10, 2018) ...................................................... 12 In re: Pfizer No. 8:17-mc-00005-CJC (C.D. Cal., May 23, 2017) ...................................................... 10 In re Testosterone Replacement Therapy Prods. Liab. Litig., 136 F. Supp. 3d 968 (N.D. Ill. 2015) ................... 24 vii Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) ............................................ 17 PaineWebber Inc. v. Chase Manhattan Private Bank (Switzerland), 260 F.3d 453 (5th Cir. 2001) ............................... 18 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) ............................... 2, 5, 19, 20 Wyrough & Loser, Inc. v. Pelmor Labs., Inc., 376 F.2d 543 (3d Cir. 1967) ........................... 17, 21 Statutes 28 U.S.C. § 1332(d)(11)(B)(i) ...................................... 4 28 U.S.C. § 1332(d)(11)(C)(i) ...................................... 8 Cal. Code Civ. Pro. §§ 404-404.9 ................................ 3 Cal. Code Civ. Pro. § 418.10(a)(1) ............................ 12 Other Authorities Cal. Rules of Court, Rule 3.501(8)-(9) ........................ 3 INTRODUCTION There are at least three reasons why this Court should deny Pfizer’s petition for writ of certiorari: 1. The case doesn’t present the question Pfizer asks the Court to answer. Pfizer’s question presented is premised on a false assertion: Pfizer says that the state trial court ruled that Pfizer forfeited its right to contest personal jurisdiction “because [it] did not file a personal jurisdiction motion simultaneous with [its] attempt to establish subject matter jurisdiction in federal court.” Pet. i. The state court did no such thing: It explicitly held that Pfizer waived its person- al jurisdiction defense because it “litigat[ed] the ul- timate merits” in a federal Multidistrict Litigation (MDL) court by insisting it was entitled to summary judgment against the Plaintiffs—not because it liti- gated subject matter jurisdiction before personal ju- risdiction. Pet. App. 14. Pfizer’s assertion that the case presents the question “whether, under federal law, a defendant’s efforts to establish federal subject matter jurisdiction can result in forfeiture of an oth- erwise fully preserved challenge to personal jurisdic- tion,” Pet.i, rests entirely on its mischaracterization of the decision below. Pfizer’s claim that the state court’s refusal to dismiss on personal jurisdiction grounds “is quite literally unprecedented,” Pet. 2, is similarly predicated on Pfizer’s miscasting of what the state court actually held. The state court relied on precedent from both this Court and lower federal courts