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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DEFENDANTS BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., 

BOEHRINGER INGELHEIM USA CORPORATION, GLAXOSMITHKLINE, LLC, 

PFIZER, INC., SANOFI US SERVICES INC., AND SANOFI-AVENTIS U.S. LLC’S 

NOTICE OF REMOVAL

Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, Defendants Boehringer Ingelheim 

Pharmaceuticals, Inc., Boehringer Ingelheim USA Corporation, GlaxoSmithKline, LLC, Pfizer, Inc., 

Sanofi US Services Inc., and Sanofi-Aventis U.S. LLC (collectively, “Removing Defendants”) hereby 

give notice of removal of this action, Allen Brittner v. GlaxoSmithKline, LLC et al., Case No. 

RG20061466, from the Superior Court of the State of California in and for Alameda County to the 

United States District Court for the Northern District of California. 

Andrew T. Bayman (pro hac vice forthcoming)

Matthew J. Blaschke (SBN 281938)

KING & SPALDING LLP

101 Second Street, Suite 2300

San Francisco, CA 94105

Tel: (415) 318-1212

Fax: (415) 318-1300

abayman@kslaw.com

mblaschke@kslaw.com

Attorneys for Defendants Boehringer 

Ingelheim Pharmaceuticals, Inc. and 

Boehringer Ingelheim USA Corporation 

[Additional Counsel on Signature Page]

Allen Brittner,

Plaintiff,

v.

GlaxoSmithKline, LLC; Boehringer Ingelheim 

Pharmaceuticals, Inc.; Boehringer Ingelheim USA 

Corporation; Pfizer, Inc.; Sanofi US Services Inc.; 

Sanofi-Aventis U.S. LLC; Safeway, Inc.; Safeway 

Health, Inc; and DOES 1 through 100, inclusive,

Defendants.

Case No. 3:20-cv-03931

NOTICE OF REMOVAL OF ACTION 

DEMAND FOR JURY TRIAL 

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INTRODUCTION

1. This action is one of hundreds of related lawsuits filed against manufacturers and 

sellers of Zantac (ranitidine), an antacid medication, alleging that the medication causes various 

cancers. On February 6, 2020, the Judicial Panel on Multidistrict Litigation (“JPML”) created a 

Multidistrict Litigation (“MDL”) in the Southern District of Florida before Judge Robin Rosenberg 

for pretrial coordination of cases like this one “in which plaintiffs allege that they developed cancer 

as a result of NDMA formed from Zantac.” In re Zantac (Ranitidine) Prods. Liab. Litig., 2020 WL 

582134, at *2 (J.P.M.L. 2020). To date, over 300 actions have been transferred to the Zantac MDL.

2. On May 11, 2020, Plaintiff filed this Complaint in the Superior Court of the State of 

California in and for Alameda County against the Removing Defendants, which had manufactured 

or sold Zantac over various time periods. The thrust of this Complaint—like those already pending 

in the MDL—is that Plaintiff ingested prescription and over-the-counter (“OTC”) “RanitidineContaining Drugs,” and as a result, developed cancer, in this case kidney cancer. Compl. ¶¶ 10-11. 

The Removing Defendants are not citizens of California for diversity purposes. See id. ¶¶ 25, 27, 

29, 32-33, 35. A copy of the Complaint is attached as Exhibit A. 

3. Unlike the cases in the MDL—including cases filed by these same plaintiffs’ 

lawyers—this Complaint also names California-based retailers as Defendants in an effort to destroy 

diversity jurisdiction. Specifically, the Complaint includes Safeway, Inc. and Safeway Health, Inc., 

(collectively, the “Retailer Defendants”) as named defendants. Id. ¶¶ 38-39. The Retailer 

Defendants are alleged to be citizens of California for diversity purposes. Id.

4. As further explained below, the Retailer Defendants are fraudulently joined in this 

action because—on its face—Plaintiff’s complaint fails to allege any viable cause of action against 

them, and therefore their citizenship must be ignored for purposes of diversity jurisdiction. 

5. First, Plaintiff cannot state any viable strict products liability claim against the 

Retailer Defendants because those claims are preempted by federal law. The Retailer Defendants 

lack the legal authority under U.S. Food and Drug Administration (“FDA”) regulations to 

unilaterally alter Zantac’s government-approved labeling or to manufacture the product differently. 

See, e.g., Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011) (“If the Manufacturers had independently 

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changed their labels to satisfy their state-law duty [to attach a safer label], they would have violated 

federal law.”); In re Fosamax (Alendronate Sodium) Prods. Liab. Litig. (No. II), MDL No. 2243,

2012 WL 181411, at *3 (D.N.J. Jan. 17, 2012) (“As a distributor of Fosamax, Watson has no power 

to change Fosamax labeling. That power lies with the applicant who filed the New Drug Application 

. . . seeking approval to market Fosamax.”).

6. Second, Plaintiff does not state a viable negligence claim against the Retailer 

Defendants. The basis for Plaintiff’s claim is that the Retailer Defendants allegedly failed to 

ascertain that the products at issue can degrade under certain conditions to form a compound called 

N-nitrosodiethylamine (“NDMA”), and failed to properly store Zantac to avoid such degradation. 

Compl. ¶¶ 290, 292. It is black-letter law that retailers do not have a duty to inspect or test products 

in common use for defects unknown to them. See Sears, Roebuck & Co. v. Marhenke, 121 F.2d 

598, 600 (9th Cir. 1941) (applying California law) (a retailer “who purchases and sells an article in 

common and general use, in the usual course of trade, without knowledge of its dangerous qualities 

is not under duty to exercise ordinary care to discover whether it is dangerous or not”); Valentine v. 

Baxter Healthcare Corp., 68 Cal. App. 4th 1467, 1485–86 (1999) (“[I]mposition of liability for 

breach of an independent duty to conduct long-term testing, where the causal link to the known 

harm to plaintiff is the unknown outcome of testing that was not done, would be beyond the pale 

of any California tort doctrine we can identify.”) (emphasis in original). Otherwise, every retailer 

in California would have the responsibility to conduct a battery of scientific testing on all 

pharmaceuticals stocked on its shelves, despite their FDA approval, in order to independently 

ascertain their safety. That is not the law.

7. Because the Retailer Defendants are fraudulently joined, federal jurisdiction over this 

action is proper based on complete diversity between Plaintiff and all properly joined defendants.

JURISDICTION

8. The Removing Defendants remove this action on the basis of diversity jurisdiction 

pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 and the doctrine of fraudulent joinder. 

9. This Court has subject matter jurisdiction under 28 U.S.C. § 1332(a) because: 

(1) there is complete diversity between Plaintiff and the properly joined Defendants; (2) the amount 

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in controversy exceeds $75,000, exclusive of interest and costs; and (3) all other requirements for 

removal have been satisfied.

BASIS FOR REMOVAL

I. There Is Complete Diversity Between Plaintiff and the Properly Joined Parties.

10. Plaintiff is a citizen of California. Id. ¶ 9. 

11. The properly joined defendants are all citizens of states other than California. See id. 

¶¶ 25, 27, 29, 32-33, 35.1

12. Defendant Boehringer Ingelheim Pharmaceuticals, Inc. is a corporation organized 

under the laws of Delaware with its principal place of business in Ridgefield, Connecticut. Id. ¶ 25. 

Boehringer Ingelheim Pharmaceuticals, Inc. is, therefore, a citizen of Delaware and Connecticut.

13. Defendant Boehringer Ingelheim USA Corporation is a corporation organized under 

the laws of Delaware with its principal place of business in Ridgefield, Connecticut. Id. ¶ 27. 

Boehringer Ingelheim USA Corporation is, therefore, a citizen of Delaware and Connecticut. 

14. Defendant GlaxoSmithKline LLC is a limited liability company organized under the 

laws of Delaware with its principal place of business in Wilmington, Delaware. Its sole member is 

GlaxoSmithKline Holdings (America) Inc., a corporation organized under the laws of Delaware 

with its principal place of business in Wilmington, Delaware. See Attachment to Corp. Disclosure 

Statement, In re Zantac (Ranitidine) Prods. Liab. Litig., MDL No. 2924, Dkt. 43-1. 

GlaxoSmithKline LLC is, therefore, a citizen of Delaware. 

15. Defendant Pfizer Inc. is a corporation organized and existing under the laws of the 

State of Delaware, with its principal place of business in New York, New York. Id. ¶ 32. Pfizer 

Inc. is, therefore, a citizen of Delaware and New York. 

16. Defendant Sanofi US Services Inc. is a corporation organized under the laws of 

Delaware with its principal place of business in Bridgewater, New Jersey. Id. ¶ 33. Sanofi US 

Services Inc. is, therefore, a citizen of Delaware and New Jersey.

1 Plaintiff dismissed Defendants Boehringer Ingelheim Corporation, GlaxoSmithKline, plc, and 

Sanofi S.A., and thus this Court need not consider their citizenship for purposes of removal. Exhibit 

A, at 001. In any event, Boehringer Ingelheim Corporation, GlaxoSmithKline, plc, and Sanofi S.A. 

are foreign entities and are not citizens of California. See Compl. ¶¶ 26, 30, 34. 

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17. Defendant Sanofi-Aventis U.S. LLC is a limited liability company organized under 

the laws of Delaware with its principal place of business in Bridgewater, New Jersey. Id. ¶ 35. The 

sole member of Sanofi-Aventis U.S. LLC is Sanofi US Services Inc., a Delaware corporation with 

its principal place of business in New Jersey. Defendant Sanofi-Aventis U.S. LLC is, is therefore, 

a citizen of Delaware and New Jersey. 

18. Defendants Does 1 through 100 are sued under “fictitious names.” Id. ¶¶ 42-48. 

Therefore, their citizenship must be ignored for purposes of determining the propriety of removal. 

See 28 U.S.C. § 1441(b)(1) (“In determining whether a civil action is removable on the basis of the 

jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious 

names shall be disregarded.”).

19. Because Plaintiff is a citizen of California and the properly joined defendants are 

citizens of states other than California, complete diversity exists between Plaintiff and the properly 

joined defendants. See 28 U.S.C. §§ 1332, 1441.

II. The Retailer Defendants Are Fraudulently Joined

20. The Retailer Defendants are fraudulently joined, and their California citizenship 

should therefore be disregarded for purposes of removal.

21. A defendant is fraudulently joined and its presence in the lawsuit is ignored for 

purposes of determining diversity where there is no “possibility that a state court would find that 

the complaint states a cause of action” against it. Grancare, LLC v. Thrower by & through Mills, 

889 F.3d 543, 549 (9th Cir. 2018). See also Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 

(9th Cir. 2001) (a defendant is fraudulently joined “if the plaintiff fails to state a cause of action 

against the resident defendant, and the failure is obvious according to the settled rules of the state”) 

(citing McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)); Ritchey v. Upjohn Drug 

Co., 139 F.3d 1313, 1318 (9th Cir. 1998) (same). 

22. Here, the Retailer Defendants are fraudulently joined because: (1) retailers cannot 

unilaterally change an FDA-approved label or alter the highly regulated manufacturing processes as 

mere sellers of Ranitidine-Containing Drugs, and the claims against them are accordingly 

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preempted; and (2) Plaintiff does not plead a cognizable negligence action against the Retailer 

Defendants.

A. Plaintiff’s Strict Liability Claims Against the Retailer Defendants Are 

Preempted.

23. Plaintiff’s claims for strict products liability, under failure-to-warn and 

manufacturing-defect theories, against the Retailer Defendants are preempted by federal law. As a 

result, there is no “possibility that a state court would find that the complaint states a cause of action” 

against the retailers. Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 549 (9th Cir. 

2018). 

24. In Pliva, Inc. v. Mensing, 564 U.S. 604 (2011), the Supreme Court held that claims 

involving an FDA-approved product are preempted under federal law when a defendant cannot 

unilaterally satisfy state-law duties without FDA’s prior approval. Id. at 623–24 (“[W]hen a party 

cannot satisfy its state duties without the Federal Government’s special permission and assistance, 

which in turn is dependent on the exercise of judgment by a federal agency, that party cannot 

independently satisfy those state duties for pre-emption purposes.” Id. at 623–24 (emphasis added); 

see also Mutual Pharm. Co. v. Bartlett, 570 U.S. 472, 475 (2013). In Mensing, the Supreme Court 

announced this preemption principle in the context of product liability actions against manufacturers 

of generic drugs. Mensing, 564 U.S. at 610. The manufacturers argued that, under federal drug 

regulations, they are “prevented . . . from independently changing their generic drugs’ safety labels.” 

Id. at 617. Consequently, they asserted, holding them liable under state law for failure to 

“adequately and safely label their products,” would directly conflict with labeling requirements 

under federal law. Id. The Supreme Court agreed: Because generic manufacturers are unable to 

comply with both state and federal law, state failure-to-warn claims against generic drug 

manufacturers must be preempted. Id. at 618–620, 614 (“If the Manufacturers had independently 

changed their labels to satisfy their state-law duty [to attach a safer label], they would have violated 

federal law.”).

25. The same preemption analysis that the Supreme Court articulated in Mensing bars 

claims against pharmaceutical distributors or retailers that stand even further removed than generic 

manufacturers from the ability to change drug labeling that the FDA has approved. Only the party 

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that submits the New Drug Application (the “NDA”) to obtain FDA approval to market a drug can 

seek to change the drug’s labeling after initial approval. 21 C.F.R. § 314.71(a); id. § 314.70(a)(4) 

(“The applicant must promptly revise all promotional labeling and advertising to make it consistent 

with any labeling change implemented . . . .”). Here, the Retailer Defendants are not, and never 

were, the holders of the Zantac NDA. Rather, they are named solely in their capacity as retailers 

that sold FDA-approved products manufactured by other parties.2 Therefore, they had no authority 

to unilaterally change the product’s labeling.

26. In fact, had the Retailer Defendants provided warnings about risks not included in 

Zantac’s approved product labeling, they would have been breaking federal law, and would be 

subject to potential civil and/or criminal penalties for “misbranding.” 21 U.S.C. §§ 333, 334. FDA 

regulations on misbranding prohibit any person, including a pharmaceutical distributor, from 

issuing any warning that is not consistent with the drug’s FDA-approved labeling. 21 C.F.R. 

§ 201.100(d)(1). Under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq. (the 

“FDCA”), when FDA approves a drug for marketing, it also approves the drug’s labeling, including 

information about the drug’s potential risks and benefits. 21 U.S.C. § 355(d). 

27. The FDCA and its implementing regulations provide that a drug is misbranded if its 

labeling is “false and misleading in any particular.” 21 U.S.C. § 352(a); id. § 321(n); id. § 331(a), 

(b), (k); 21 C.F.R § 201.6(a). A statement about a drug’s risks would be considered “false and 

misleading” if FDA has not found it to be properly substantiated. 40 Fed. Reg. 28,584 (1975) (“In 

short, a drug is misbranded if its labeling makes claims that have not been properly substantiated.”). 

By definition, an unapproved warning by a distributor or retailer that is inconsistent with the 

2 Plaintiff alleges that one retailer, Safeway Health, Inc., has “labeled, distributed, and marketed 

generic Ranitidine-Containing Drugs manufactured by Perrigo Company, plc and Dr. Reddy’s 

Laboratories Ltd on behalf of Defendant Safeway, Inc. and labeled and marketed by Safeway 

Health, Inc. as ‘Safeway Care’ products.” Compl. ¶ 39. Insofar as the Complaint could be 

interpreted to include a claim against Retailer Defendant Safeway as a seller of its own generic 

version of ranitidine under the “Safeway Care” name, Compl. ¶ 41, Safeway Health would still have 

no ability to alter the FDA-approved labeling for ranitidine medications whether sold under the 

name “Safeway Care” or any other name. Mensing, 564 U.S. at 617. But Plaintiff does not allege 

he ingested Safeway Care products. Compl. ¶ 10. Instead, Plaintiff includes Safeway Health, Inc. 

under the heading “Retailer Defendants” along with the other retailers, not under the heading 

“Manufacturer Defendants.” Id. at p. 10. Plaintiff likewise asserts negligent product design, 

negligent manufacture, and negligent misrepresentation claims only against the Removing 

Defendants, not Safeway Health, Inc. See id. at Counts IV, V and VI.

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approved drug labeling would not have been found to be substantiated by FDA and, thus, would 

constitute misbranding.3

28. Applying this Supreme Court precedent, numerous federal courts have accordingly 

held that failure-to-warn claims asserted against pharmaceutical distributors are preempted because 

the distributors cannot change approved product labeling. See, e.g., In re Fosamax (Alendronate

Sodium) Prods. Liab. Litig. (No. II), MDL No. 2243, 2012 WL 181411, at *3 (D.N.J. Jan. 17, 2012)

(“As a distributor of Fosamax, Watson has no power to change Fosamax labeling. That power lies 

with the applicant who filed the New Drug Application . . . seeking approval to market Fosamax.”); 

Pierik v. GE Healthcare Inc., No. 1:18-cv-07733, 2019 WL 4686551, at *1 (N.D. Ill. June 18, 2019)

(“As McKesson is alleged to be a distributor rather than a manufacturer of Omniscan and

MultiHance, I cannot draw a reasonable inference that McKesson had the ability to modify the

warning labels of those drugs. Plaintiffs’ claims against McKesson are preempted . . . .”); Smith v.

GE Healthcare, Inc., No. 3:19-cv-00492, 2019 WL 4565246 (W.D. La. Sept. 4, 2019) (finding

failure-to-warn claims preempted because “McKesson has no authority to unilaterally change or

add to the Omniscan labeling” as a pharmaceutical distributor); Brazil v. Janssen Research & Dev.

LLC, 196 F. Supp. 3d 1351, 1364–65 (N.D. Ga. 2016) (“A distributor, even of a brand name drug,

has no power to change . . . labeling. That power lies with the applicant who filed the New Drug

Application.”) (citations and quotation marks omitted); In re Yasmin & Yaz Prods. Liab. Litig.,

MDL No. 2100, 2014 WL 1632149, at *6 (S.D. Ill. Apr. 24, 2014) (“Under applicable federal

regulations, generic distributors have no more authority than generic manufacturers to alter a drug’s

composition, label, or design. Accordingly, the principles announced in Mensing . . . are equally

applicable to generic distributors.”). Supreme Court precedent mandates the same result here.

3 Plaintiff’s allegation that the alleged failure to warn was not limited to the Ranitidine-Containing 

Drugs’ labeling does not save this claim. Compl. ¶ 209. The term “labeling” under FDA regulations 

is broad and includes “all labels and other written, printed, or graphic matter.” 21 U.S.C. § 321(m); 

see also 21 C.F.R. § 1.3 (same). Thus, all materials disseminated by pharmaceutical distributors 

about a drug’s risks and benefits, including promotional and other materials, must be “consistent 

with and not contrary to . . . the approved or permitted labeling.” 21 C.F.R. § 201.100(d)(1); 73 

Fed. Reg. 2848, 2850 n.3 (2008) (“Federal law governs not only what information must appear in 

labeling, but also what information may not appear.”).

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29. Plaintiff’s manufacturing-defect claim against the Retailer Defendants is preempted 

for the same reason as Plaintiff’s failure-to-warn claim: under federal law, the Retailer Defendants 

could not have altered the manufacturing of Zantac. If the Retailer Defendants manufactured Zantac 

in a different manner, they would be liable under the FDCA for the introduction into interstate 

commerce of an unapproved and misbranded new drug. See 21 U.S.C. § 331(a) and (d). 

30. FDA highly regulates the manufacturing of drugs and associated processes. See 

FDCA § 505; 21 U.S.C. § 355. As a result, the NDA holder must describe and disclose to FDA all 

manufacturers of its products. See 21 U.S.C. § 355(b)(1)(D) (NDA must contain “a full description 

of the methods used in, and the facilities and controls used for, the manufacture, processing, and 

packing of such drug.”); 21 C.F.R. § 314.50(d)(i) (NDA must contain “a detailed technical 

chemistry, manufacturing, and controls section,” detailing, among other things “the name and 

address of the drug substance’s manufacturer” as well as “the name and address of each 

manufacturer of the drug product; [and] a description of the manufacturing and packaging 

procedures and in-process controls for the drug product.”). To add or change a manufacturer, the 

NDA holder must accordingly submit a supplement to its NDA. See 21 C.F.R. § 314.70(a). Just as 

only the NDA holder can change drug labeling, only the NDA holder has authority to submit a 

supplement to its NDA to add or change a manufacturer. See 21 C.F.R. § 314.71(a) (“Only the 

applicant may submit a supplement to an application.”). Manufacturing a drug out of compliance 

with an approved NDA causes the product to be an unapproved new drug in violation of the FDCA. 

21 U.S.C. § 331(d) (“The following acts are prohibited: . . . The introduction or delivery for 

introduction into interstate commerce of any article in violation of section . . . 505 (21 U.S.C. § 

355)”).

31. None of the Retailer Defendants was identified in the Zantac NDA as an authorized 

manufacturer of Zantac or listed and registered with FDA to manufacture Zantac. Nor did any 

Retailer Defendant have the authority to designate itself as a manufacturer pursuant to an approved 

NDA because none is an NDA holder. Had a Retailer Defendant nevertheless manufactured and 

sold Zantac in a different manner to avoid alleged state-law liability, that would have violated the 

FDCA by introducing an unapproved new drug into interstate commerce. See 21 U.S.C. § 331(d) 

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(“The following acts are prohibited: . . . The introduction or delivery for introduction into interstate 

commerce of any article in violation of section . . . 505”). In addition, manufacturing Zantac without 

appropriately registering and listing with FDA would cause the resulting product to be misbranded. 

21 U.S.C. § 352(o) (A drug or device shall be deemed misbranded “[i]f it was manufactured, 

prepared, propagated, compounded, or processed in an establishment not duly registered”). Both 

actions would subject retailers to civil and/or criminal penalties. See 21 U.S.C. § 333(a); 21 U.S.C. 

§ 303(a)(1) (“Any person who violates a provision section 301 shall be imprisoned for not more 

than one year or fined not more than $1,000, or both.”). Thus, under the settled preemption 

principles articulated in Mensing, there is no “possibility that a state court would find that the 

complaint states a cause of action” against the Retailer Defendants. Grancare, LLC, 889 F.3d at 

549 (internal quotation marks omitted).

32. Some district courts have remanded cases where removals were based on preemption 

of similar claims against distributors, though acknowledging the logic of the argument.4

 These 

cases are not binding, and the Court need not follow them. Indeed, this very issue is currently 

pending before the United States Court of Appeals for the Ninth Circuit. See Geisse v. Bayer 

HealthCare Pharm. Inc., No. 17-CV-07026-JD, 2019 WL 1239854, at *2–*3 (N.D. Cal. Mar. 18, 

2019), appeal docketed, No. 19-15783 (9th Cir. Apr. 17, 2019).

33. Nor is the reasoning of those cases persuasive. Most invoked Hunter v. Philip Morris 

USA, 582 F.3d 1039, 1044 (9th Cir. 2009), for the proposition that it is inappropriate to examine the 

affirmative defense of preemption in the context of a motion to remand. But Hunter involved a 

4 See Geisse v. Bayer HealthCare Pharm. Inc., No. 17-CV-07026-JD, 2019 WL 1239854, at *3 

(N.D. Cal. Mar. 18, 2019), appeal docketed, No. 19-15783 (9th Cir. Apr. 17, 2019) (“[P]reemption 

goes to the merits of the plaintiff’s case and entails a degree of analysis that does not render a state 

law claim obviously barred or frivolous for fraudulent joinder purposes.”); Dodich v. Pfizer Inc., No. C 18-02764 WHA, 2018 WL 3584484, at *3 (N.D. Cal. July 26, 2018) (“Although logical, 

neither Mensing nor Bartlett specifically dealt with distributors and defendants do not identify 

binding authority extending the decisions. As such, it is not manifest that plaintiff has no possible 

claim against McKesson under California law.”); Hatherley v. Pfizer, Inc., No. CIV 2:13-00719 

WBS, 2013 WL 3354458, at *6 (E.D. Cal. July 3, 2013) (“Thus, while the argument that distributors 

of brand name drugs are the same as generic manufacturers may be persuasive, unless and until this 

rational is extended, it is not obvious that plaintiffs have no claim against McKesson under 

California law because of a preemption defense.”) (emphasis in original) (citations and quotation

marks omitted); In re Abilify (aripiprazole) Prods. Liab. Litig., 3:16-MD-2734, 2018 WL 6258903, 

at *5 (N.D. Fla. Nov. 8, 2018) (noting the “conceptual, and frankly, practical appeal” of the 

argument).

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common defense that would “effectively decide[] the entire case” by barring claims against all

defendants. Id. at 1045 (internal quotation marks omitted). Not so here. Although the Removing 

Defendants have a variety of dispositive defenses (including some based on different federal 

preemption arguments), the claims against the Retailer Defendants are barred here for a different 

reason that does not apply to the Removing Defendants: the Retailer Defendants never had labeling 

or manufacturing responsibility for the product, making it impossible for them to unilaterally change 

the label or manufacturing of the product. Cf. id. at 1044.

34. In addition, no searching inquiry into the merits of the case is required to find that the 

claims against the Retailer Defendants are preempted. Hunter, 582 F.3d at 1044 (explaining that 

only a “summary inquiry [was] appropriate” to determine whether an in-state defendant was 

fraudulently joined) (citations and quotation marks omitted). Here, preemption is a legal defense 

that applies because of the simple and undisputed fact that the Retailer Defendants never held 

regulatory authority to alter the labeling or manufacture of the product. The Court need not review 

or determine any facts concerning the Retailer Defendants’ conduct or the scientific issues involved 

in the litigation to assess preemption. 

35. Indeed, Defendants have already successfully urged this basis for removal in the 

Zantac litigation. An action was filed in Florida state court against some of the instant defendants 

and a non-diverse retailer, Publix. As here, the plaintiff brought claims against all defendants for 

strict products liability, and the defendants removed the case to federal court on the basis of 

fraudulent joinder. Following removal, the plaintiff did not oppose defendants’ removal and, 

instead, voluntarily dismissed Publix from the case. That case is now coordinated in the MDL. See

Notice of Removal, Galimidi v. Sanofi US Servs. Inc., No. 1:10-cv-24395-BB, ECF 1 (S.D. Fla. 

Oct. 23, 2019); see also Notice of Voluntary Dismissal Without Prejudice as to Publix Super 

Markets, Inc., In re: Zantac (Ranitidine) Prods. Liab. Litig., No. 9:20-md-2924, ECF 259 (S.D. Fla. 

Mar. 6, 2020). 

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B. Plaintiff Fails to Plead a Cognizable Negligence Claim against the Retailer 

Defendants under California Law.

36. There is no possibility that Plaintiff could prevail on his negligence claim against the 

Retailer Defendants under California law because a seller of a product does not have a duty to 

investigate or test products stocked on its shelves for unforeseen risks.

37. The Complaint asserts that in January 2020, an FDA-certified pharmaceutical testing 

laboratory called Emery Pharma conducted tests revealing that NDMA accumulates in RanitidineContaining Drugs exposed to elevated temperatures. See Compl. ¶ 149. It further alleges that 

subsequent FDA testing revealed that NDMA levels could increase even under normal storage 

conditions. Compl. ¶ 151. 

38. The thrust of the Complaint is that the Retailer Defendants were negligent for not 

themselves earlier investigating and testing Ranitidine-Containing Drugs to uncover these alleged 

facts, and accordingly for storing the product in conditions that allegedly led to NDMA formation. 

See, e.g., Compl. ¶ 290 (“Defendants acted below the standard of care by storing and dispensing 

Ranitidine-Containing Drugs to Plaintiff without first undertaking efforts to ensure that the drugs 

were safe for human use by, for example, consulting the available medical literature evidencing the 

potential human health dangers associated with the storage of Ranitidine-Containing Drugs and the 

formation of NDMA within Ranitidine-Containing Drugs when the drugs are stored at particular 

temperatures.”).

39. Plaintiff’s claim that the Retailer Defendants should have determined that RanitidineContaining Drugs degrade and form NDMA when stored at particular temperatures or lengths of 

time seeks to impose a duty to investigate and test that California law does not recognize. California 

law is clear that “a dealer who purchases and sells an article in common and general use, in the usual 

course of trade, without knowledge of its dangerous qualities is not under duty to exercise ordinary 

care to discover whether it is dangerous or not.” See Sears, Roebuck & Co. v. Marhenke, 121 F.2d 

598, 600 (9th Cir. 1941) (applying California law) (emphasis added and citations omitted); see also 

Tourte v. Horton Mfg. Co., 108 Cal. App. 22, 24 (1930) (affirming the holding of the Superior Court 

of Alameda County that the seller of a washing machine had no duty to examine the product where 

there was a latent defect unknown to the seller). Cf. Burgess v. Montgomery Ward & Co., 264 F.2d 

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495, 497 (10th Cir. 1959) (holding that it would be “completely unreasonable to expect the 

shopkeeper to perform the inspection or test which would have revealed to an expert the defect in 

the ladder rail”); Ziglar v. E. I. Du Pont De Nemours & Co., 152, 280 S.E.2d 510, 514 (N.C. App. 

1981) (holding that retailer of inherently dangerous toxic substance was under no duty to detect or 

remedy hidden defect); Odum v. Gulf Tire & Supply Co., 196 F. Supp. 35, 36 (N.D. Fla. 1961) 

(holding that “a retailer or wholesaler is not under a duty to inspect manufactured articles of a 

complex nature for defects which are latent”); Meyer v. Rich’s Inc., 12 S.E.2d 123, 123 (Ga. App. 

1940) (a seller of men’s suits had no duty to analyze the suit chemically and was therefore not liable 

for buyer’s injuries caused by poisonous dye and chemicals in suit).5

40. In Sears, for example, after suffering burns from hot water leaking from a rubber hot 

water bag, plaintiff sued the retailer from whom he purchased the product. 121 F.2d at 599. An 

expert testified that the defect in the bag was in the faulty method of construction of the stopper and 

the socket so that there was a slight leakage of water around the stopper. Id. The Ninth Circuit 

explained that the question of whether or not the retailer “should have known of such defects 

depends upon whether or not the vendor who sells goods manufactured by another is obligated to 

inspect the goods to determine whether or not they are defective.” Id. at 600. It squarely held that 

the retailer had no such duty. See id. Thus, the retailer was under no obligation to inspect the 

product whether the defects “could only be discovered by such investigations as were made by the 

experts, or could have been ascertained by the simple test of filling the bag with water and inverting 

it after the stopper had been screwed into its socket.” Id.

41. Plaintiff’s claim here seeks to impose an even more obviously untenable duty than in 

Sears. The alleged defect in the hot water bottle in Sears could have been discovered by a “simple 

test.” 121 F.2d at 600. Yet here, Plaintiff’s theory would impose upon every California pharmacist 

and/or retailer who sells prescription and/or over-the counter medications the obligation to conduct 

5 Plaintiff’s conclusory and unsupported allegation that the Retailer Defendants failed to follow their 

own “established practices and procedures” to store the products presupposes that the Retailers 

owed a duty to investigate and test the products to learn that they could potentially form NDMA 

through certain storage conditions. Only if they had conducted such testing and investigation could 

formation of NDMA be a foreseeable risk of deviating from established storage practices. 

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their own independent, specialized testing to determine the safety of every lot of every prescription 

and/or over-the-counter medication stocked on its shelves. 

42. This would be a wholly unprecedented undertaking to require of every retailer in 

California at pains of negligence liability. Stability testing of pharmaceutical products involves a 

complex set of procedures that require considerable cost, time, and scientific expertise. Under 

federal regulations, for instance, a manufacturer must submit a written protocol that includes, inter 

alia, sample size and test intervals based on statistical criteria for each attribute examined; storage 

conditions for samples retained for testing; specific test models; testing of the drug product in the 

same container-closure system as that in which the drug product is marketed; and testing of the drug 

product at the time of dispensing as directed in the labeling. 21 C.F.R. § 211.166(a)(1)-(5). Such 

testing must include an adequate number of batches at various storage conditions as defined in the 

protocol. 21 C.F.R. § 211.166(b). Pharmaceutical companies often contract with a Contract 

Manufacturing Organization (“CMO”) to conduct the stability testing. Such testing can cost 

anywhere from $40,000-$60,000 per product. See PCI Synthesis, How to Know When to Toss Your 

Prescription Drug or Refrigerate It (June 28, 2017), available at

https://www.pcisynthesis.com/how-to-know-when-to-toss-your-prescription-drug-or-refrigerateit/. 

43. Yet under Plaintiff’s theory, not just the specific Retailer Defendants here but “mom 

and pop” grocery or convenience stores throughout the State would be required to conduct such 

detailed scientific investigations of the pharmaceutical products they sell to guarantee their safety. 

Nor would Plaintiff’s novel theory be limited to storage conditions for pharmaceuticals; retailers 

would have to conduct extensive testing of all of their products to discover any latent dangers and 

warn against them. See, e.g., Burgess v. Montgomery Ward & Co., 264 F.2d 495, 497 (10th Cir. 

1959) (“Montgomery Ward is operating a retail store, not a testing laboratory. If Montgomery Ward 

were obliged to test this [allegedly defective] ladder for structural strength, so is the operator of 

every retail store in the villages which dot the Kansas prairies.”). This is not the “ordinary care” 

that the law demands of retailers who sell over-the-counter pharmaceuticals, or any other common 

product for that matter. 

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44. The Complaint therefore states no cognizable claim against the Retailer Defendants 

under California negligence law. The Retailer Defendants are, therefore, fraudulently joined and 

their California citizenship should be disregarded for purposes of removal.

III. The Amount-in-Controversy Requirement Is Satisfied

45. Plaintiff’s claims also satisfy the amount in controversy requirement set forth in 28 

U.S.C. § 1332(a).

46. “[A] defendant’s notice of removal need include only a plausible allegation that the 

amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co., 

LLC v. Owens, 135 S. Ct. 547, 554 (2014). “[T]he defendant’s amount-in-controversy allegation 

should be accepted when not contested by the plaintiff or questioned by the court,” and “[e]vidence 

establishing the amount is required by § 1446(c)(2)(B) only when the plaintiff contests, or the court 

questions, the defendant’s allegation.” Id. at 553–54.

47. Plaintiff seeks several categories of damages, including compensatory damages, 

exemplary damages, and punitive damages. See Compl., Prayer for Relief ¶ 296(a)-(b).

48. The Complaint includes seven causes of action, and alleges that Plaintiff’s use of 

Zantac caused Plaintiff to suffer “significant harm, conscious pain and suffering, physical injury 

and bodily impairment including, but not limited to cancer, other permanent physical deficits, 

permanent bodily impairment and other sequelae.” Id. ¶ 14. It further asserts that Plaintiff’s injuries 

required hospitalizations, in-patient surgeries, medication treatments, and other therapies to address 

the adverse physical effects and damage” caused by Zantac. Id.

49. Recently, in denying remand, a court of this Circuit found that the amount in 

controversy was met in a Zantac-related case similarly alleging a cancer injury and seeking 

compensatory and punitive damages. There, the Court held that even applying a “conservative 

estimate” the allegations “on their face” established that the amount in controversy was met. Order, 

Brooks v. Sanofi, No. 2:20-cv-565, ECF 13, at 6-7 (D. Nev. Apr. 13, 2018).

50. Courts have similarly found that allegations of serious injury in products liability 

actions, such as those Plaintiff makes here, support an inference that the amount-in-controversy 

requirement has been met. See Mullaney v. Endogastric Sols. Inc., No. 11-62056-CIV, 2011 WL 

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4975904, at *2 (S.D. Fla. Oct. 19, 2011) (inferring that amount in controversy requirement was met 

where plaintiff alleged that he underwent “surgical intervention that required additional life saving 

medical treatment” and suffered “serious, permanent and disabling injuries”); see also Geographic 

Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107–08 (9th Cir. 2010) (“even though the 

state court complaint does not specify an amount” it satisfied amount in controversy requirement 

by requesting damages for, among other things, wrongful death, loss of consortium, and negligence, 

as well as funeral, medical and burial expenses); Campbell v. Bridgestone/Firestone, Inc., No. 

CIVF051499-FVSDLB, 2006 WL 707291, at *2 (E.D. Cal. Mar. 17, 2006) (apparent from 

complaint that amount in controversy met where plaintiffs asserted strict products liability, 

negligence, and breach of warranty claims against multiple defendants and sought compensatory 

damages, hospital and medical expenses, general damages, and loss of earning capacity). 

51. Based on Plaintiff’s allegations, the amount in controversy exceeds $75,000, 

exclusive of interest and costs.

IV. Procedural Requirements of Removal Are Satisfied

52. This Notice of Removal is timely filed pursuant to 28 U.S.C. § 1446(b). The 

Removing Defendants have received a copy of, but have not yet been served with, the Complaint.

53. The Northern District of California is the federal judicial district encompassing the 

Superior Court of the State of California in and for Alameda County, where this suit was originally 

filed. Venue is therefore proper in this district under 28 U.S.C. §§ 84(a) and 1441(a).

54. Intradistrict Assignment. Pursuant to Civil Local Rule 3-2(c) and (d), this action 

should be assigned to the Oakland or San Francisco Division, because the action arose in Alameda 

County. 

55. Removal pursuant to 28 U.S.C. § 1441(a) requires that “all defendants who have been 

properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. 

§ 1446(b)(2)(A). 

56. All of the Removing Defendants join in and consent to this removal. 

57. No other Defendant is required to consent to this removal. On information and belief, 

as of the time of filing this Notice, the Retailer Defendants have not been served with the Complaint. 

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Therefore, the Retailer Defendants are not required to join in or consent to the removal of this action. 

See Destfino v. Reiswig, 630 F.3d 952, 957 (9th Cir. 2011) (finding an exception to the consent rules 

where a defendant had not been properly served at the time of removal). Moreover, the Retailer 

Defendants are fraudulently joined and therefore are not required to join in the removal. See United 

Computer Sys. Inc. v. AT&T Corp., 298 F.3d 756, 762 (9th Cir. 2002). The unidentified defendants 

Does 1-100 are not required to consent to removal. See Hafiz v. Greenpoint Mortg. Funding, 409 

F. App’x 70, 72 (9th Cir. 2010) (nominal parties are not required to consent to removal).

58. The Removing Defendants are providing Plaintiff with written notice of the filing of 

this Notice of Removal as required by 28 U.S.C. § 1446(d). 

59. Pursuant to 28 U.S.C. § 1446(d), the Removing Defendants are filing a copy of this 

Notice of Removal with the Clerk of the Superior Court of the State of California in and for Alameda 

County. 

60. Pursuant to 28 U.S.C. § 1446(a), copies of all process, pleadings, orders and other 

papers filed in the state court action—as available from the state court docket or otherwise made 

available to the Removing Defendants at the time of filing this Notice—are attached hereto as 

Exhibit A. 

61. If any question arises regarding the propriety of the removal of this action, the 

Removing Defendants respectfully request the opportunity to present a brief and be heard at oral 

argument in support of removal.

62. No previous application has been made for the relief requested herein.

63. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 because this 

is a civil action in which the amount in controversy exceeds $75,000, exclusive of interest and costs, 

and is an action between citizens of different states.

V. Demand for Jury Trial

64. The Removing Defendants hereby demand a separate jury trial on all claims and issues 

so triable.

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WHEREFORE, the Removing Defendants give notice that the matter bearing Case No. 

RG20061466 pending in the Superior Court of the State of California in and for Alameda County 

is removed to the United States District Court for the Northern District of California, and requests 

that this Court retain jurisdiction for all further proceedings in this matter.

Dated: June 15, 2020 KING & SPALDING LLP

By: /s/ Matthew J. Blaschke________ 

Andrew T. Bayman (pro hac vice

forthcoming)

KING & SPALDING LLP

1180 Peachtree Street, Suite 1600

Atlanta, GA 30309

Tel: (404) 572-4600

Fax: (404) 572-5100

abayman@kslaw.com

Matthew J. Blaschke (SBN 281938)

KING & SPALDING LLP

101 Second Street, Suite 2300

San Francisco, CA 94105

Tel: (415) 318-1212

Fax: (415) 318-1300

mblaschke@kslaw.com

Attorneys for Defendants Boehringer 

Ingelheim Pharmaceuticals, Inc. and 

Boehringer Ingelheim USA 

Corporation

By: /s/ Sharon D. Mayo___________ (as authorized on June 12, 2020)

Sharon D. Mayo (SBN 150469)

Tommy Huynh (SBN 306222) 

ARNOLD & PORTER KAYE

SCHOLER LLP

Three Embarcadero Center, 10th

Floor

San Francisco, CA 94111-4024

Tel: (415) 471-3100

Fax: (415) 471-3400

sharon.mayo@arnoldporter.com

tommy.huynh@arnoldporter.com

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Attorneys for Defendants Sanofi US 

Services Inc. and Sanofi-Aventis 

U.S. LLC

By: /s/ Jessica B. Rydstrom_________ (as authorized on June 12, 2020)

Jessica B. Rydstrom (SBN 256600)

WILLIAMS & CONNOLLY LLP

725 12th Street NW

Washington, DC 20005 

Tel: (202) 434-5000

Fax: (202) 434-5029

jrydstrom@wc.com 

Attorney for Defendant Pfizer Inc.

By: /s/ Jonathan Tam______________ (as authorized on June 12, 2020)

Mark S. Cheffo (pro hac vice 

forthcoming)

DECHERT LLP 

1095 Avenue of the Americas

New York, NY 10036

Tel: (212) 698-3500

Fax: (212) 698-3599

mark.cheffo@dechert.com

Will W. Sachse (pro hac vice 

forthcoming)

DECHERT LLP 

Cira Centre, 2929 Arch Street

Philadelphia, PA 19104

Tel: (215) 994-4000

Fax: (215) 994-2222

will.sachse@dechert.com

Jonathan Tam (SBN 304143)

DECHERT LLP 

One Bush Street, Suite 1600

San Francisco, CA 94104-4446

Tel: (415) 262-4500

Fax: (415) 262-4555

jonathan.tam@dechert.com

Attorneys for Defendant 

GlaxoSmithKline LLC

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