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  • 1. JAMES J. YUKEVICH (SBN 159896) JvukevichP CIMMARUSTI yukelaw. corn PATRICK (SBN 224832) pcirnrnarusti RVANAUGH ukelaw. corn YUKEVICH I 355 S. Grand Avenue, 15th Floor, Los Angeles, California 90071-1560 Telephone:(213) 362-7777 Facsimile: (213) 362-7788 Attorneys for Defendant NEW ENGLAND COMPOUNDING PHARMACY, INC. d/b/a NEW ENGLAND COMPOUNDING CENTER UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 12 13 DAWN YOUNANI, Plaintiff, y4. 5446PiPo(NOTICE OF REMOVAL OF ACTION vs. JURY TRIAL DEMANDED NEW ENGLAND COMPOUNDING PHARMACY, INC. d/b/a NEW ENGLAND COMPOUNDING CENTER, THE ENCINO OUTPATIENT SURGERY CENTER, INC., and DOES 1-100, Defendants. NOTICE OF REMOVAL TO THE HONORABLE JUDGES AND CLERK OF THE UNITED II STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF 1 CALIFORNIA. PLEASE TAKE NOTICE that, pursuant to 28 U.S.C. §§ 157,1334(b), 1441 (a) and 1452(a), Defendant New England Compounding Pharmacy, Inc. d/b/a New England Compounding Center ("NECC") hereby removes the above-entitled action to this Court based upon the following supporting grounds. NECC, appearing 1166402.1 /00-029 1 3 4 5 6 7 8 9 10 11 JUL 29 2013 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Trial Date: None Set NOTICE OF REMOVAL OF ACTION Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 1 of 106 Page ID #:3
  • 2. 1 solely for the purpose of this removal and for no other purpose, and preserving all 2 I other defenses available to it, states as follows: 3 1. On or about April 8, 2013, an action purportedly was commenced in 4 I the Los Angeles County Superior Court, California, captioned Dawn Younani v. 5 New England Compounding Pharmacy, Inc. d/b/a New England Compounding I Center, The Encino Outpatient Surgery Center, Inc., and Does 1-100, Case No. 7 BC505 176 (the "State Court Action"). 8 9 10 1100 N N 0 12 in ONN NN 13 > L) Z 4 I 0 M M D 14 15 U - 0 0 16LLJj0W in Ln z 17> MO 18 I June 17, 2013. Acting national coordinating counsel for NECC received a copy of the Complaint and certain additional case documents on July 15, 2013 (attached as Exhibit A). 1. Prior to the filing of Plaintiff’s Complaint, however, on December 21, 12012, NECC had filed a voluntary petition seeking relief under Chapter 11 of Title 11 of the United States Bankruptcy Court for the District of Massachusetts (the 2. Service of the Summons and Complaint was never effectuated upon an appropriate agent for NECC, but was mistakenly forwarded to Lieff Cabraser Heimann & Bernstein, LLP in Nashville, Tennessee. On June 11, 2013, Plaintiff filed a Request for Entry of a Default against NECC, which was also sent to Lieff Cabraser in Nashville. The Court Clerk rejected the Request for Entry of Default on 19 "Bankruptcy Proceeding") and automatically staying all actions against NECC. 20 4. On February 12, 2013, the Judicial Panel on Multidistrict Litigation 21 ("Panel") issued an order establishing MDL No. 2419 In re New England 22 Compounding Pharmacy, Inc. Products Liability Litigation in the United States 23 District Court for the District of Massachusetts before the Honorable F. Dennis 24 Saylor IV (the "MDL Transfer Order") (attached as Exhibit B). 25 5. Section 1334 of Title 28 of the United States Code provides that district 26 courts have jurisdiction over "all civil proceedings arising under Title 11, or arising 27 in or related to cases under title 11." 28 U.S.C. § 1334(b) (emphasis added). 28 I/I 1166402.1 /00-029 2 NOTICE OF REMOVAL OF ACTION Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 2 of 106 Page ID #:4
  • 3. 10 11 oo Ln LL 124 ONN Ln NC’ 13 (.3 zW 14 - 4 I CJ W W 15z z -I (.3 - (!C > 16U ui IChi 4 zFI. 17 18 19 20 21 22 23 24 25 26 27 28 I 6. Pursuant to 28 U.S.C. § 1452, "[a] party may remove any claim or I cause of action in a civil action. . . to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause I of action under section 1334 of this title." 28 U.S.C. § 1452(a). 7. Similarly, Section 157 of Title 28 of the United States code provides "[t]he district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending." 28 U.S.C. § 157(b)(5) (emphasis added). 8. Plaintiff alleges personal injuries incurred as a result of exposure to epidural spinal steroid injections manufactured, sold and distributed by NECC. (Compi. ¶ 11, p. 3; Compi., Cause of Action General Negligence, p. 4; Compi., Cause of Action - Products Liability, p. 5; and Compi., Third Cause of Action Negligence Per Se Strict Liability, p. 6). 9. Accordingly, this Court has "related to" jurisdiction over this claim U.S.C. § 157(b)(5). 11. Additionally, this action involves common questions of fact with other civil actions currently pending in, or being transferred to, MDL No. 2419, and must also be transferred to the United States District Court for the District of Massachusetts for coordinated pretrial proceedings pursuant to the MDL Transfer Order and 28 U.S.C. § 1407. 12. Upon removal of this case to this Court, NECC will file a Notice of Tag Along with the Panel initiating the process for transfer to MDL No. 2419 pending in the United States District Court for the District of Massachusetts. This is also the district in which the Bankruptcy Proceeding is pending. I against NECC pursuant to 28 U.S.C. § 1334(b). 10. Furthermore, this Court has jurisdiction over this claim pursuant to 28 1166402.1 /00-029 NOTICE OF REMOVAL OF ACTION Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 3 of 106 Page ID #:5
  • 4. 1 2 3 4 5 6 7 8 10 I 11L9 Ln J 9 4 N N NW W 12 4 13> _Ww C.) 14 - 4 15 L) 4uiO - 16w’I14 in in 17> 18 19 20 21 22 23 24 25 26 27 28 13. Finally, NECC notes that on March 10, 2013, Paul D. Moore, the Chapter 11 Trustee, moved for an order of the District Court for the District of I Massachusetts to transfer to itself all related personal injury and wrongful death actions pursuant to 28 U.S.C. § 157. 14. On May 31, 2013, Judge Saylor partially granted the motion, transferring all pending and future cases, filed in state or federal court, against NECC or an affiliate, to the District of Massachusetts (attached as Exhibit C). 15. Even if Plaintiff had attempted to serve an appropriate agent for NECC, service of process could not be completed as a result of the bankruptcy stay, and therefore NECC believes that this Notice has been filed within the time period set forth in Federal Rules of Bankruptcy Procedure ("Bankruptcy Rules") 9027(a)(3). The State Court Action was purportedly commenced after the Bankruptcy Proceeding, and no order for relief has been entered in the Bankruptcy Proceeding, nor has any order been entered terminating the automatic stay imposed under 11 U.S.C. § 362(a). In filing this Notice, NECC does not waive any rights available to it under the applicable Bankruptcy Rules, nor does it waive any rights available under the automatic stay. 16. In accordance with 28 U.S.C. § 1446(d), written notice of the filing of this removal notice will be given to Plaintiff and filed with the Clerk of Courts for the Los Angeles County Superior Court, California, promptly following the filing of this Notice. 17. NECC reserves all rights including, but not limited to, any and all defenses available to it for violations of the automatic stay pursuant to 11 U.S.C. § 362(a). I/I I/I I/I I/I 1166402.1 /00-029 4 NOTICE OF REMOVAL OF ACTION Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 4 of 106 Page ID #:6
  • 5. 1 2 3 4 5 6 7 8 10 11 rn 13 14 Li -J I LL z ul< >- I c:i > bi vi se WHEREFORE, Defendant NECC respectfully requests that the action now pending against it in the Los Angeles County Superior Court be removed to the United States District Court for the Central District of California. Defendant NECC hereby demands a trial by jury. DATED: July 25, 2013 rauiei.c J. LdII11IlafUSLl Attorneys for Defendant NEW ENGLAND COMPOUNDING PHARMACY, INC. d/b/a NEW ENGLAND COMPOUNDING CENTER 19 20 21 22 23 24 25 26 27 28 1166402.1 /00-029 5 NOTICE OF REMOVAL OF ACTION Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 5 of 106 Page ID #:7
  • 6. EXHIBIT A Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 6 of 106 Page ID #:8
  • 7. ORIGINA’ SU FOR COURT USE ONLYSUMMON (CITACION JUDICIAL) (SOLO PAFA USODELA CORTE) NOTICE TO DEFENDANT: (AVISO AL DEMANOADO): FILEDNew England Compounding Pharmacy, Inc. dba New England Compounding Center, LOS ANGELES SUPERIOR COURT The Encino Outpatient Surgery Center, Inc., and Does 1-100, Inclusive. APR 08 ZUli YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): JOIij, ULJI-1rZ LILrtI Dawn Younani BY NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (twiw.lawhelpcalifornia.org ), the California Courts Online Self-Help Center (ww,.courtirifo.ca.gov/seIfhe1p), or by contacting your local court or county bar association, NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court’s lien must be paid before the court will dismiss the case. IA V/SO! Lo han demandado. Si no respondo dentro de 30 dIas, la cone puedo decidir en su contra sin oscuchar su versiOn. Lea la informaciOn a continuaciOn. Tiene 30 OIAS DE CALENDA RIO despuOs do qua le entreguen esfa citaciOn y pa poles 10 gales pare presenter una respuesta por escrito en esta carte y hacer quo so entregue una cop/a a! dornandante. Una carte 0 una liamada fete fOnica no /0 profegon. Su respuesta por escnito f/one quo ester an forrnato legal correcto si desea quo procesen su caso en la corte. Es posib/e quo haya un formulario quo usted pueda user pare su respuesta. Puode encontrar estos formularios do la code y rnÆs inforrnaciOn an el Centro do Ayuda do las Cartes de California Www.sucorte.ca.gov), an la biblioteca do byes do su condado o an to code quo be quede rnÆs corca. Si no puede pager la cuota de presentaciOn, pida al secretario do la carte que !e dO un formularfo de exencibn de pago do cuotas, Si no prosenta su respuesta a f/em p0, puede perder el caso por incumplimienfo y la code be podrØ quitar su sue/do, dinoro y b/ones sin rnÆs advertencia. Hay otros requisitos loge/es. Es recornendable quo flame , a un abogado inmediatamente. Si no conoco a un abogado, puode liamar a un servicio do remisiOn a abogados. Si no puede pager a un abogado, es po.siblo quo cum p/a con /os requisitos pare obtoner servicios legales gratuit Os do un prograrna do ser’icios loge/es sin fines de lucro. Puedo enconfrar ostos grupos sin fines de lucro en el s/I/o web do California. Legal Services, (www.lawhelpcalifornia.org ), en el Centro do Ayuda do las Codes do California, (www.sucorte.ca.gov ) o ponidndose en contacto con (a carte o el coleglo do abogados locales. A V/SO: Par by, la code tiene derecho a rec/amar las cuotas y los cost os exontos por imponor un gravamen sabre cualquier recuperaciOn do $10,000 0 mds do valor recibida med/ante un acuerdo o una cancesiOn do arbitraje en un caso de derocho civil. Tiene quo pager el gravamen do to code antes do quo Is code pueda dosechar ol caso. The name and address of the court is: ICASE NUMBER: (El nombro y direccin de la code es): (NÆmem del Caso). stanley Mosk Courthouse, Central District IIllNorth Hill Street B C 50 5 1 76Los Angeles, CA 90012 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El nombre a direcciOn y ci nQmero do telØfono del abogado del demandante, o del dernandante quo no f/one abogado, es).’ Corinne Elfassi, SBN 261243 (818)783-6251 Simon Resnik Haves LLP 15233 Ventura Blvd., Suite 250, Sherman Oaks, CA 91403 DATE: Clerk, by , Deputy (Fecha) APR 0 8 2013 John A Clarke (Secretanio) A (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Pare pnieba do enfrega do esta citatiOn use el formu!ario Proof of Service of Summons, (POS-010)), _..--’- .Lo. ,r 1’’ Form Adopted for Mandatory Use Judicial Council of California SUM-100 (Rev. July 1, 2009) NOTICEi’ TO THE I-’tIUN tvtu: You are served 1. as an individual defendant. 2. as the person sued under the fictitious name of (specify): 3, = on behalf of (specify): under: LJ CCP 416.10 (corporation) CCP 416.60 (minor) CCP 416.20 (defunct corporation) CCP 416.70 (conservatee) CCP 416.40 (association or partnership) CCP 416.90 (authorized person) other (specify),’ 4. = by personal delivery on (date): Page 1 of 1 SUMMONS Code of Civil Procedure §§ 412.20, 455 www.courtinfo.ca.gov [American LegalNet. Inc. EXHIBIT A - PAGE 000006 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 7 of 106 Page ID #:9
  • 8. EXHIBIT A - PAGE 000007 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 8 of 106 Page ID #:10
  • 9. 11ORIGINAL PLD-PI-001 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Ear number, andaddress): FOR COURT USE ONLY Corinne Elfassi, SBN 261243 Simon Resnik Hayes LLP 15233 Ventura Blvd., Suite 250 Sherman Oaks, CA 91403 TELEPHONE NO: (818)783-6251 FAX NO. (Optional): (818)783-6253 E-MAIL ADDRESS (Optional): corinne@srhlawfirm.com ATTORNEY FOR (Name): Plaintiff, Dawn Younani LOS ANGELES SUPERIOR COURT SUPERIOR COURT OF CALIFORNIA, COUNTY OF Los Angeles STREETADORESS: 111 North Hill Street APR .08 2U13 MAILING ADDRESS: 111 North Hill Street CITY AND ZIP CODE: Los Angeles, 90012 LLMt11t, LLEHK BRANCH NAME: Stanley Mosk Courthouse OM PLAINTIFF: Dawn Younani New England Compounding Pharmacy, Inc. dba New England Compounding Center, DEFENDANT: The Encino Outpatient Surgery Center, Inc., LXJ DOES 1TO 100 COMPLAINTPersonal Injury, Property Damage, Wrongful Death AMENDED (Number): Type (check all that apply): MOTOR VEHICLE EXI OTHER (specify): Products Liability Property Damage Wrongful Death L1 Personal Injury LX1J Other Damages (specify): personal Injury Jurisdiction (check all that apply): CASE NUMBER: LJ ACTION IS A LIMITED CIVIL CASE Amount demanded EJ does not exceed $10,000 exceeds $10,000, but does not exceed $25,000 B C 0 5 76ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) iJ ACTION IS RECLASSIFIED by this amended complaint from limited to unlimited from unlimited to limited Plaintiff (name or names):Davm Younani alleges causes of action against defendant (name or names): New England Compounding Pharmacy, Inc. dba New England Compounding Center,, The Encino Outpatient Surgery Center, Inc., and Does 1-100, Inclusive. This pleading, including attachments and exhibits, consists of the following number of pages: Each plaintiff named above is a competent adult - a. except plaintiff (name): (1) a corporation qualified to do business in California FSC9122114 (2) an unincorporated entity (describe): T1?J.AL-1018114 (3) a public entity (describe): OSC- 418116 (4) a minor = an adult (a) for whom a guardian or conservator of the estate or a guardian ad litern has been appojite1 (b) other (specify): 1’ (5) EJ other (specify): rnmm - except plaintiff (name): :! i I . i(1) a corporation qualified to do business n California rl I ,:f Tn ’ – - - (2) an unincorporated entity (describe): fi’ (3) a public entity (describe): (4) a minor = an adult (a) IIJ for whom a guardian or conservator of the estate or a guardian ad litem has been appointi ii (b)11J other (specify): (5) other (specify): EJ Information about additional plaintiffs who are not competent adults is shown in Attachment 3. "i Page lof3 D 0Fprm Approved for Optional Use COMPLAINTPersonal Injury, Property , Ci ode oIvI Procedure, § 425.12 ’Judicial Council of California www.courfinfo.ca.gov PLD-Pi-001 (Rev. January 1, 20071 Damage, Wrongful Death American LegalNel, Inc. I www.ForrnsWo,liflow.corn I EXHIBIT A - PAGE 000008 r c I M M. -i-I ’:’as’ m M CAC’ Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 9 of 106 Page ID #:11
  • 10. PLD-PI-001 SHORT TITLE: CASE NUMBER: Dawn Younani v. New England Compounding Pharmacy, Inc. 4. = Plaintiff (name): is doing business under the fictitious name (specify): and has complied with the fictitious business name laws. 5. Each defendant named above is a natural person a. E1 except defendant (name): New England Compounding c. = except defendant (name): (1) a business organization, form unknown Pharmacy. Inc (1) a business organization, form unknown (2) a corporation (2) a corporation (3) an unincorporated entity (describe): (3) LI an unincorporated entity (describe): (4) = a public entity (describe): (4) = a public entity (describe): (5) LXJ other (specify): (5) = other (specify): dba New England Compouding Center b. FXJ except defendant (name): The Encino Outpatient Surgery d. = except defendant (name): (1)LIII a business organization, form unknow enter, Inc. (1) a business organization, form unknown (2)EZJ a corporation (2) EIII a corporation (3) j an unincorporated entity (describe): (3) an unincorporated entity (describe): (4) EII a public entity (describe): (4) a public entity (describe): (5) = other (specify): (5) = other (specify): Information about additional defendants who are not natural persons is contained in Attachment 5. 6. The true names of defendants sued as Does are unknown to plaintiff. a. fjJ Doe defendants (specify Doe numbers): 1-50 were the agents or employees of other named defendants and acted within the scope of that agency or employment. b. EK Doe defendants (specify Doe numbers): 5 1 -100 are persons whose capacities are unknown to plaintiff. 7. = Defendants who are joined under Code of Civil Procedure section 382 are (names): 8. This court is the proper court because a. at least one defendant now resides in its jurisdictional area. b. the principal place of business of a defendant corporation or unincorporated association is in its jurisdictional area. c. injury to person or damage to personal property occurred in its jurisdictional area. d. other (specify): Pursuant to Los Angeles Superior Court Rules, all personal injury matters wherein bodily injury occurs within the County of Los Angeles must be filed at Stanley Mosk, Central District. J Plaintiff is required to comply with a claims statute, and C: a. has complied with applicable claims statutes, or b. is excused from complying because (specify): PLO4I001 (Rev. January 1, 2007) COMPLAINTPersonal Injury, Property Page 2 of 3 Damage, Wrongful Death EXHIBIT A - PAGE 000009 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 10 of 106 Page ID #:12
  • 11. C] .- PLD-Pl-001 SHORT TITLE: CASE NUMBER: Dawn Younani v. New England Compounding Pharmacy, Inc. 10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached): a. Motor Vehicle b. General Negligence c. Intentional Tort d. Products Liability e. Premises Liability f. LXI Other (specify): Negligence Per Se 11. Plaintiff has suffered a. E] wage loss b. [IT] loss of use of property c. J hospital and medical expenses d. J general damage e. property damage f. LTI loss of earning capacity g. other damage (specify): Plaintiff has sustained personal injuries as a direct and proximate result of the negligence and carelessness of defendants, and each of them, all of which injuries have caused and continue to cause Plaintiff great mental, physical and nervous pain and suffering. Plaintiff is informed and believes and thereon alleges that her injuries will result in some permanent disability to her, all to her general damages. 12. ElI The damages claimed for wrongful death and the relationships of plaintiff to the deceased are a. listed in Attachment 12. b. as follows: 13. The relief sought in this complaint is within the jurisdiction of this court. 14. Plaintiff prays for judgment for costs of suit; for such relief as is fair, just, and equitable; and for a. (1) compensatory damages (2) [IT] punitive damages The amount of damages is (in cases for personal injury or wrongful death, you must check (1)): (1) according to proof (2) = in the amount of: $ The paragraphs of this complaint alleged on information and belief are as follows (specify paragraph numbers): Date: April 4,2013 . Corinne Elfassi, SBN 261243 (TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY) PLO-Pi-001 ]Rev. January 1, 2007] COMPLAINTPersonal Injury, Property Page 3 of 3 Damage, Wrongful Death EXHIBIT A- PAGE 000010 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 11 of 106 Page ID #:13
  • 12. PLD-PI-00112) SHORT TITLE: CASE NUMBER: Dawn Younani v. New England Compounding Pharmacy, Inc. First CAUSE OF ACTIONGeneral Negligence Page 4 (number) ATTACHMENT TO EX1I Complaint = Cross - complaint (Use a separate cause of action form for each cause of action.) GN-1. Plaintiff (name): Dawn Younani alleges that defendant (name): New England Compounding Pharmacy, Inc. dba New England Compounding Center, The Encino Outpatient Surgery Center, Inc. LZIJ Does 1 to was the legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to plaintiff on (date): October 3, 2012 at (place): The Encino Outpatient Surgery Center, Inc., 16311 Ventura Blvd., Suite 580, Encino, CA 91436 (description of reasons for liability): Plaintiff was administered three epidural spinal steroid injections on August 14, 2012, August 28, 2012, and September 11, 2012, at The Encino Outpatient Surgery Center, Inc., located at 16311 Ventura Blvd., Suite 580, Enema, CA 91436. All three epidural spinal steroid injections were manufactured, sold and distributed by the New England Compounding Pharmacy, Inc. dba The Encino Outpatient Surgery Center, Inc. Each of the Defendants knew that the products would be purchased and would be used without inspection for defects. The product was defective when it left the control of each Defendant. The product at the time of injury was being used in the manner intended by the Defendants, and used in the manner that was reasonably foreseeable by Defendants as involving a substantial danger not readily apparent. Adequate warnings of the danger were not given. Plaintiff was a medical recipient, user and purchaser of the products. Defendants, and each of them, owed Plaintfif a duty of reasonable care to manufacture, distribute, sell, and administer safe epidural spinal steroid injections for her pain management. Defendants breached their duty of care when the three injections were found to be tainted with fungal meningitis on October 3, 2012. Plaintiff fell ill as a result of the tainted steroid injections in October 2012. Plaintiff sustained personal injuries as a direct and proximate result of the negligence and carelessness of Defendants, and each of them, all of which injuries have caused and continue to cause Plaintiff great mental, physical, and nervous pain and suffering. Plaintiff is informed and believes and thereon alleges that her injuries will result in some permanent disability to her, all to S.,-. her general damages. Page 1 of I F& Approved for Optional Use Judicial Council of California CAUSE OF ACTIONGeneral Negligence Code of Civil Procedure 425.12 .couthn.cag PL,P.I01 (2) [Rev. January 1, 2007) EXHIBITA - PAGE 000011 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 12 of 106 Page ID #:14
  • 13. 1 PLD-PI-O01(5) SHORT TITLE: CASE NUMBER: Dawn Younani v. New England Compounding Pharmacy, Inc. Second CAUSE OF ACTIONProducts Liability Page 5 (number) ATTACHMENT TO EX1 Complaint = cross - complaint (Use a separate cause of action form for each cause of action.) Plaintiff (name): Dawn Youriani Prod. L-1. On or about (date): October 3, 2012 plaintiff was injured by the following product: Three epidural spinal steroid injections administered each on August 14, 2012, August 28, 2012, and September 11, 2012 Prod. L-2. Each of the defendants knew the product would be purchased and used without inspection for defects. The product was defective when it left the control of each defendant. The product at the time of injury was being used in the manner intended by the defendants, used in the manner that was reasonably foreseeable by defendants as involving a substantial danger not readily apparent. Adequate, warnings of the danger were not given. Prod. L-3. Plaintiff was a LXI purchaser of the product. user of the product. bystander to the use of the product. EXJ other (specify): medical recipient of the product PLAINTIFFS INJURY WAS THE LEGAL (PROXIMATE) RESULT OF THE FOLLOWING: Prod. L- 4. = Count OneStrict liability of the following defendants who a. iJ manufactured or assembled the product (names): New England Compounding Pharmacy, Inc. dba New England Compounding Center LXJ Does 1 to 100 b. = designed and manufactured component parts supplied to the manufacturer (names): New England Compounding Pharmacy, Inc. dba New England Compounding Center Does 1 to 100 C. LZJ sold the product to the public (names): New England Compounding Pharmacy, Inc. dba New England Compounding Center, The Encino Outpatient Surgery Does 1 Center, Inc. to 100 Prod. L-5. LJ Count TwoNegligence of the following defendants who owed a duty to plaintiff (names): New England Compounding Pharmacy, Inc. dba New England Compounding Center, The Encino Outpatient Surgery Center, Inc. EXJ Does 1 to 100 Prod. L-6. EZJ Count ThreeBreach of warranty by the following defendants (names): New England Compounding Pharmacy, Inc. dba New England Compounding Center, The Encino Outpatient Surgery Center, Inc. LZJ Does I to 100 a. LXJ who breached an implied warranty b. who breached an ex ress warranty which was r: written oral Prod. L-7.. The defendants who are liable to plaintiffs for other reasons and the reasons for the liability are listed in Attachment-Prod. L-7 = as follows: Page 1 of 1 Form Approved for Optional Use CAUSE OF ACTIONProducts Liability code of Civil Procedure, § 425.12 cJudicial Council of California www.courfinfo.ca.gov PLOPl-O01(5) [Rev. January 1, 20071 EXHIBIT A - PAGE 000012 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 13 of 106 Page ID #:15
  • 14. SHORT TITLE: Dawn Younani v. New England Compounding Pharmacy, CASE NUMBER. 1--Inc. THIRD CAUSE OF ACTION 1 NEGLIGENCE PER SE STRICT LIABILITY 3 Plaintiff, Dawn Younani, alleges that Defendants, New England Compounding Pharmacy, Inc. dba New England Compounding Center, The Encino Outpatient Surgery Center, Inc., and Does 1-100, Inclusive, were the legal and proximate cause of her bodily injuries and damages. 6 On August 14, 2012, August 28, 2012, and September 11, 2012, Plaintiff was administered three epidural spinal steroid injections to her lumbar spine at and by The Encino Outpatient Surgery Center, Inc., and Does 1-100, Inclusive. Plaintiff was notified on October 3, 2012, that all three injections that she received 8 were tainted with fungal meningitis. Plaintiff sustained injuries and damages as a direct and proximate result of the steroid injections. All three injections were manufactured, sold and distributed by Defendant New England Compounding Pharmacy, Inc. dba New England Compounding Center. 10 Plaintiff is informed and believes, and thereon alleges that Defendant New England Compounding Pharmacy, Inc. dba New England Compounding Center is strictly liable for manufacturing and assembling the tainted steroid injections that caused her injuries, designing and manufacturing the steroid injections, 12 and selling the steroid injections to the public. 13 Plaintiff is informed and believes, and hereon alleges that Defenant The Encino Outpatient Surgery Center, Inc. is strictly liable for selling to the public the tainted steroid injections that caused her injuries. 14 15 16 17 18 19 20 21 22 24 (Required for verified pleading) The items on this page stated on information and belief are (specify item numbers, not line numbers): This page may be used with any Judicial Council form or any other paper filed with the court. Page 6 Form Approved by the ADDITIONAL PAGE Judicial Council of California Attach to Judicial Council Form or Other Court Paper MC-020 (New January 1, 19871 CRC 201.501 EXHIBIT A- PAGE 000013 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 14 of 106 Page ID #:16
  • 15. ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, War numbealrd address): E Corinne Elfassi, SBN 261243 Simon Resnik Hayes LLP 15233 Ventura Blvd., Suite 250, Sherman Oaks, CA 91403 TELEPHONE NO.: (818)783-6251 FAX NO.: 818-783-6253 ATTORNEY FOR (Name): Plaintiff flawn Ytinni SUPERIOR COURT OF CALIFORNIA, COUNTY OF Los Angeles STREET ADDRESS: 111 North Hill Street MAILING ADDRESS: 111 North Hill Street CITYANDZIPCODE: Los Angeles, 90012 BRANCH NAME: Sthnlev Mosk Courthouse FOR COURT USE ONLY FILEDLOS ANGELES SUPERIOR COURT APR 08 2u13 J01$1 M. eutit, BY rr-S. DEPUTY CASE NAME: )awn Younani v. New England Compounding Pharmacy, Inc. CIVIL CASE COVER SHEET Complex Case Designation CASE NUMBER: Unlimited Limited Counter Joinder B C 5 0 5 1 7(Amount (Amount JUDGE: demanded demanded is Filed with first appearance by defendant exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: (General & Limited Civil) Items 1-6 below must be completed (see instructions on page z). 1. Check one box below for the case type that best describes this case: Auto Tort Contract Provisionally Complex Civil Litigation Auto (22) Breach of contractlwarrarlty (06) (Cal. Rules of Court, rules 3.400-3.403) LIII Uninsured motorist (46) LII Rule 3.740 collections (09) Antitrust/Trade regulation (03) Other Pl/PDIWD (Personal Injury/Property Death) Tort Other collections (09) Construction defect (10) Mass tort (40)Damage/Wrongful Insurance coverage (18) Asbestos (04) LIII Other contract (37) Securities litigation (28) F Product liability (24) Real Property Environmental/Toxic tort (30) [III Medical malpractice (45) Eminent domain/Inverse Insurance coverage claims arising from the LIII Other PI/PD/WD (23) condemnation (14) Wrongful eviction (33) above listed provisionally complex case types (41) LIIIII Non-Pl/PDIWD (Other) Tort Other real property (26) Enforcement of Judgment LIIII Business tort/unfair business practice (07) Civil rights (08) Unlawful Detainer Li Enforcement of judgment (20) LIII Defamation (13) LIII Commercial (31) Miscellaneous Civil Complaint LII Fraud (16) LIII Residential (32) RICO (27) Li] Intellectual property (19) Li Drugs (38) [III Other complaint (not specified above) (42) LIII Professional negligence (25) Judicial Li Review Miscellaneous Civil Petition Li Other non-PI/PD/WD tort (35) LIII Asset forfeiture (05) LIII Partnership and corporate governance (21) Employment Petition re: arbitration award (11) Li Other petition (not specified above) (43) [1111 Wrongful termination (36) Li Writ of mandate (02) ri Other employment (15) Li Other judicial review (39) 2. This case [=]is LA is not complex under rule 3400 of the California Rules of Court. If the case is complex, mark the nonmonetary; declaratory or injunctive relief C. =punitive 4. Number of causes of action (specify): THREE 5.(This case Li is Ll is not a class action suit. 6. 1:lf there are any known related cases, file and serve a notice of related case u may ,(i form CM-015.) oat lAie:April 4,2013 i WI. ii PRIN1 EY Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed ’under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result , in sanctions. File this cover sheet in addition to any cover sheet required by local court rule. ,lf this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all L.pther parties to the action or proceeding. Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. Parse 1 of 2 d.Li Large number of witnesses e.Li Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court f. LIII Substantial postjudgment judicial supervision Form Adopted for Mandatory Use CIVIL CASE COVER SHEET - - - Cal. Rules of Court, rules 2.30, 3.220, 3.400-3.403,3.740, Cal. Standards of Judicial Administration, std. 3.10 Judicial Council of California CM-010 [Rev. July 1. 200-11 w.courtinfo.ca .goi? EXHIBIT A- PAGE 000014 factors requiring exceptional judicial management: a.Li Large number of separately represented parties b. LIII Extensive motion practice raising difficult or novel issues that will be time-consuming to resolve c.LIII Substantial amount of documentary evidence 3. .Remedies o (check all that apply) a.LZI monetaryRemedies .apply): Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 15 of 106 Page ID #:17
  • 16. ’ lNSTRrFONS ON HOW TO COMPLETE THE CERSHEET - CM 010 To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one, If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney’s fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Tort Contract Provisionally Complex Civil Litigation (Cal. Auto (22)-Personal Injury/Property Breach of Contract/Warranty (06) Rules of Court Rules 3.400-3.403) Damage/Wrongful Death Breach of Rental/Lease Antitrust/Trade Regulation (03) Uninsured Motorist (46) (if the Contract (not unlawful defamer Construction Defect (10) case involves an uninsured or wrongful eviction) Claims Involving Mass Tort (40) motorist claim subject to Contract/Warranty BreachSeller Securities Litigation (28) arbitration, check this item Plaintiff (not fraud or negligence) Environmental/Toxic Tort (30) instead of Auto) Negligent Breach of Contract/ Insurance Coverage Claims Other PI!PDIWD (Personal Injury/ Warranty (arising from provisionally complex Property Damage/Wrongful Death) Other Breach of Contract/Warranty case type listed above) (41) Tort Collections (e.g., money owed, open Enforcement of Judgment Asbestos (04) book accounts) (09) Enforcement of Judgment (20) Asbestos Property Damage Collection CaseSeller Plaintiff Abstract of Judgment (Out of Asbestos Personal injury/ Other Promissory Note/Collections County) Case Confession of Judgment (non- Product Liability (not asbestos or Wrongful Death Insurance Coverage (not provisionally domestic relations) toxic/environmental) ( 24) complex) (18) Sister State Judgment Medical Malpractice (45) Auto Subrogation Administrative Agency Award Medical Malpractice Other Coverage (not unpaid taxes) Physicians & Surgeons Other Contract (37) Petition/Certification of Entry of Other Professional Health Care Contractual Fraud Judgment on Unpaid Taxes Malpractice Other Contract Dispute Other Enforcement of Judgment Other PI/PD/WD (23) Real Property Case Premises Liability (e.g., slip Eminent Domain/Inverse Miscellaneous Civil Complaint and fall) Condemnation (14) RICO (27) Intentional Bodily lnjury/PDIWD Wrongful Eviction (33) , Other Complaint (not specified above) (42) (e.g., assault, vandalism) Other Real Property (e.g., quiet title) (26) Declaratory Relief Only Intentional Infliction of Writ of Possession of Real Property Injunctive Relief Only (non- Emotional Distress Mortgage Foreclosure harassment) Negligent Infliction of Quiet Title Mechanics Lien Emotional Distress Other Real Property (not eminent Other Commercial Complaint Other PI/PD/WD domain, landlord/tenant, or Case (non-tort/non-complex) Non-PI/PD/WD (Other) Tort foreclosure) Other Civil Complaint Business Tort/Unfair Business Unlawful Detainer (non-tort/non-complex) Practice (07) Commercial (31) Miscellaneous Civil Petition Civil Rights (e.g., discrimination, Residential (32) Partnership and Corporate false arrest) (not civil Drugs (38) (if the case involves illegal Governance (21) harassment) ( 08) drugs, check this item; otherwise, Other Petition (not specified Defamation (e.g., slander, libel) report as Commercial or Residential) above) (43) (13) Judicial Review Civil Harassment ’Fraud (16) Asset Forfeiture (05) Workplace Violence ( Intellectual Property (19) Petition Re: Arbitration Award (11) Elder/Dependent Adult "Professional Negligence (25) Writ of Mandate (02) Abuse Legal Malpractice Writ-Administrative Mandamus Election Contest Other Professional Malpractice Writ-Mandamus on Limited Court Petition for Name Change (not medical or legal) Case Matter Petition for Relief From Late Other Non-PI/PD/WD Tort (35) WritOther Limited Court Case Claim ErnIoyment Review Other Civil Petition (:wrongful Termination (36) Other Judicial Review (39) Other Employment (15) Review of Health Officer Order Notice of AppealLabor Commissioner Appeals cM.olo[Rev. July l,2007l CIVIL CASE COVER SHEET Page 2of2 EXHIBIT A- PAGE 000015 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 16 of 106 Page ID #:18
  • 17. 00GINALSHORT TITLE: CASE NUMBER 5 CIVIL CASE COVER SHEET ADDENDUM AND STATEMENT OF LOCATION (CERTIFICATE OF GROUNDS FOR ASSIGNMENT TO COURTHOUSE LOCATION) This form is required pursuant to Local Rule 2.0 in all new civil case filings in the Los Angeles Superior Court. Item I. Check the types of hearing and fill in the estimated length of hearing expected for this case: JURY TRIAL? K YES CLASS ACTION? El YES LIMITED CASE? DYES TIME ESTIMATED FOR TRIAL 5.7 E HOURS/ ll DAYS Item II. Indicate the correct district and courthouse location (4 steps - If YOU checked Limited Case", skip to Item Ill, Pg. 4): Step 1: After first completing the Civil Case Cover Sheet form, find the main Civil Case Cover Sheet heading for your case in the left margin below, and, to the right in Column A, the Civil Case Cover Sheet case type you selected. Step 2: Check one Superior Court type of action in Column B below which best describes the nature of this case. Step 3: In Column C, circle the reason for the court location choice that applies to the type of action you have checked. For any exception to the court location, see Local Rule 2.0. Applicable Reasons for Choosing Courthouse Location (see Column C below) 1. Class actions must be filed in the Stanley Moslc Courthouse, central district. 6. Location of property or permanently garaged vehicle. 2. May be filed in central (other county, or no bodily injury/property damage). 7. Location where petitioner resides. 3. Location where cause of action arose. 8. Location wherein defendant/respondent functions wholly. 4. Location where bodily injury, death or damage occurred. 9. Location where one or more of the parties reside. 5. Location where performance required or defendant resides. 10. Location of Labor Commissioner Office Step 4: Fill in the information requested on page 4 in Item Ill; complete Item IV. Sign the declaration. A B C Civil Case Cover Sheet Type of Action Applicable Reasons - Category No. (Check only one) See Step 3 Above Auto (22) 0 A7100 Motor Vehicle - Personal Injury/Property Damage/Wrongful Death 1., 2., 4. Uninsured Motorist (46) 0 A71 10 Personal Injury/Property Damage/Wrongful Death - Uninsured Motorist 1., 2., 4. o A6070 Asbestos Property Damage 2. Asbestos (04) o A7221 Asbestos - Personal Injury/Wrongful Death 2. Product Liability (24) 0 A7260 Product Liability (not asbestos or toxic/environmental) 1., 2.. 3.& 8. o A7210 Medical Malpractice - Physicians & Surgeons 1 4. Medical Malpractice (45) o A7240 Other Professional Health Care Malpractice 1., 4. 0 A7250 Premises Liability (e.g., slip and fall) 1., 4. Other Personal Injury 0 A7230 Intentional Bodily Injury/Property Damage/Wrongful Death (e.g., 1. ,4. Property Damage assault, vandalism, etc.) Wrongful Death 0 A7270 Intentional Infliction of Emotional Distress 1, (23) 0 A7220 Other Personal Injury/Property Damage/Wrongful Death 1 4 LACIV1O9(Rev.03/11) - CIVIL CASE COVER SHEET ADDENDUM Local Rule 2.0 LASC Approved 0304 AND STATEMENT OF LOCATION Page 1 of 4 EXHIBIT A- PAGE 000016 =0 <I- wo . 2 C) G) . E -- (0 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 17 of 106 Page ID #:19
  • 18. - t - 0 CL o ca C)- 0 C C) 0. c 0o C) E >. 0 C. E w C.) 0 F C) C. 0 a- Co C) I- C) IP Co I-.- SHORT TITLE: CASE NUMBER A B C Civil Case Cover Sheet Type of Action Applicable Reasons - Category No. (Check only one) See Step 3 Above Business Tort (07) 0 A6029 Other Commercial/Business Tort (not fraud/breach of contract) 1., 3. Civil Rights (06) 0 A6005 Civil Rights/Discrimination 1. 2., 3. Defamation (13) 0 A6010 Defamation (slander/libel) 1., 2., 3. Fraud (16) 0 A6013 Fraud (no contract) 1., 2., 3. o A6017 Legal Malpractice 1., 2., 3. Professional Negligence (25) o A6050 Other Professional Malpractice (not medical or legal) 1., 2., 3. Other (35) 0 A6025 Other Non-Personal Injury/Property Damage tort 2.,3. Wrongful Termination (36) 0 A6037 Wrongful Termination 1., 2., 3. o A6024 Other Employment Complaint Case 1., 2., 3. Other Employment (15) o A6109 Labor Commissioner Appeals 10. o A6004 Breach of Rental/Lease Contract (not unlawful detainer or wrongful 2 5 eviction) Breach of Contract/ Warranty 0 A6008 Contract/Warranty Breach -Seller Plaintiff (no fraud/negligence) 2., 5. (not insurance) 0 A6019 Negligent Breach of Contract/Warranty (no fraud) o A6028 Other Breach of Contract./Warranty (not fraud or negligence) D A6002 Collections Case-Seller Plaintiff 2., 5. 6. Collections (09) o A6012 Other Promissory Note/Collections Case 2., 5. Insurance Coverage (18) 0 A6015 Insurance Coverage (not complex) 1., 2., 5., 8. Eli A6009 Contractual Fraud 1., 2., 3., 5, Other Contract (37) 0 A6031 Tortious Interference 1., 2., 3., 5. D A6027 Other Contract Dispute(not breach/insurance/fraud/negligence) 1., 2., 3., 8. Eminent Domain/Inverse 0 A7300 Eminent Domain/Condemnation Number of parcels Condemnation (14) Wrongful Eviction (33) 0 A6023 Wrongful Eviction Case 2. 6. o A6018 Mortgage Foreclosure 2., 6. Other Real Property (26) 0 A6032 Quiet Title 2., 6. o A6060 Other Real Property (not eminent domain, landlord/tenant, foreclosure) 2., 6. Unlawful Detainer-Commercial 0 A6021 Unlawful Detainer-Commercial (not drugs or wrongful eviction) 2..6. Unlawful Detainer-Residential 0 A6020 Unlawful Detainer-Residential (not drugs or wrongful eviction) 2., 6. Unlawful Detainer- 0 A6020FUnlawful Detainer-Post-Foreclosure 2..6. Post-Foreclosure (34) Unlawful Detainer-Drugs (38) 0 A6022 Unlawful Detainer-Drugs 2., 6. LAthV 109 (Rev. 03/11) CIVIL CASE COVER SHEET ADDENDUM Local Rule 2,0 LASC Approved 03-04 AND STATEMENT OF LOCATION Page 2 of 4 EXHIBIT A - PAGE 000017 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 18 of 106 Page ID #:20
  • 19. I SHORT TITLE: CASE NUMBER A B C Civil Case Cover Sheet ’ . Type of Action Applicable Reasons - Category No. (Check only one) See Step 3 Above Asset Forfeiture (05) 0 A6108 Asset Forfeiture Case 2,, 6. Petition re Arbitration (11) 0 A6115 Petition to Compel/ConfirmNacate Arbitration 2., 5. o A6151 Writ - Administrative Mandamus 2., 8. Writ of Mandate (02) 0 A6152 Writ - Mandamus on Limited Court Case Matter 2. o A6153 Writ - Other Limited Court Case Review 2. Other Judicial Review (39) 0 A6150 Other Writ /Judicial Review 2., 8. Antitrust/Trade Regulation (03) 0 A6003 Antitrust/Trade Regulation 1., 2., 8. Construction Defect (10) 0 A6007 Construction Defect 1., 2., 3. Claims Involving Mass Tort 0 A6006 Claims Involving Mass Tort 1., 2., 8. Securities Litigation (28) 0 A6035 Securities Litigation Case 1., 2., 8. Toxic Tort 0 A6036 Toxic Tort/Environmental 1., 2., 3., 8. Environmental (30) Insurance Coverage Claims 0 A6014 Insurance Coverage/Subrogation (complex case only) 1., 2., 5., 8. from Complex Case (41) o A6141 Sister State Judgment 2., 9. o A6160 Abstract of Judgment 2., 6. Enforcement 0 A6107 Confession of Judgment (non-domestic relations) 2., 9. of Judgment (20) 0 A6140 Administrative Agency Award (not unpaid taxes) 2., 8. o A6114 Petition/Certificate for Entry of Judgment on Unpaid Tax 2., 8. o A6112 Other Enforcement of Judgment Case 2., 8., 9. RICO (27) 0 A6033 Racketeering (RICO) Case 1., 2., 8. o A6030 Declaratory Relief Only 1., 2., 8. Other Complaints 0 A6040 Injunctive Relief Only (not domestic/harassment) 2., 8. (Not Specified Above) (42) 0 A6011 Other Commercial Complaint Case (non-tort/non-complex) 1., 2., 8. o A6000 Other Civil Complaint (non-tort/non-complex) 1., 2., 8. Partnership Corporation 0 A6113 Partnership and Corporate Governance Case 2., 8. Governance (21) o A6121 Civil Harassment 2., 3., 9. 0 A6123 Workplace Harassment 2., 3., 9. o A6124 Elder/Dependent Adult Abuse Case 2., 3., 9. Other Petitions (Not Specified Above) 0 A6190 Election Contest 2. (43) 0 A61 10 Petition for Change of Name 2_7. o A6170 Petition for Relief from Late Claim Law 2., 1, 4., 8. o A6100 Other Civil Petition 2., 9. C) > C, Q 0 -J C) 0 E 0 C-) (C 0 U) > 0 D.. C) co EE C) 0 o4 LU 0 U) 0 = 0 L) (ft = 0 (I) U) -- cC.C) (ft> C-) LACIV 109 (Rev. 03/11) CIVIL CASE COVER SHEET ADDENDUM Local Rule 2.0 LASC Approved 03-04 AND STATEMENT OF LOCATION Page 3 of 4 EXHIBIT A- PAGE 000018 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 19 of 106 Page ID #:21
  • 20. 1 SHORT TITLE: CASE NUMBER Item Ill. Statement of Location: Enter the address of the accident, party’s residence or place of business, performance, or other circumstance indicated in Item II., Step 3 on Page 1, as the proper reason for filing in the court location you selected. REASON: Check the appropriate boxes for the numbers shown under Column C for the type of action that you have selected for this case. Lit [12. 03. 94. 05. [16. 07. 08. 119. 010. ADDRESS: The Encino Outpatient Surgery Center, Inc., 16311 Ventura Blvd., Suite 580, Encino, CA 91436 CITY: STATE: I ZIP CODE: Item IV. Declaration of Assignment I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that the above-entitled matter is properly filed for assignment to the Stanley Mnsk Cnnrticwouse in the Central District of the Superior Court of California, County of Los Angeles [Code Civ. Proc., § 392 et seq., and Local Rule 2.0, subds. (b), (c) and (d)}. Dated: April 4, 2013 (SIGNATURE OF ATTORNEY/FILING PARTY) PLEASE HAVE THE FOLLOWING ITEMS COMPLETED AND READY TO BE FILED IN ORDER TO PROPERLY COMMENCE YOUR NEW COURT CASE: 1. Original Complaint or Petition. 2. If filing a Complaint, a completed Summons form for issuance by the Clerk. 3. Civil Case Cover Sheet, Judicial Council form CM-010. 4. Civil Case Cover Sheet Addendum and Statement of Location form, LACIV 109, LASC Approved 03-04 (Rev. 03/11). 5. Payment in full of the filing fee, unless fees have been waived. 6. A signed order appointing the Guardian ad Litem, Judicial Council form CIV-01 0, if the plaintiff or petitioner is a minor under 18 years of age will be required by Court in order to issue a summons. 7. Additional copies of documents to be conformed by the Clerk. Copies of the cover sheet and this addendum must be served along with the summons and complaint, or other initiating pleading in the case. LAC1V 109 (Rev. 03/11) CIVIL CASE COVER SHEET ADDENDUM Local Rule 2.0 LASC Approved 03-04 AND STATEMENT OF LOCATION Page 4of4 EXHIBIT A- PAGE 000019 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 20 of 106 Page ID #:22
  • 21. EXHIBIT A - PAGE 000020 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 21 of 106 Page ID #:23
  • 22. ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Store Nor number. and address): FOR KURT USE ONLY Matthew Resnik 182562 Simon Resnik Hayes LLP I11.1t ii15233 Ventura Blvd, #300 Sherman Oaks CA sui RIOR COURT O TELEPHONE NO.: (818) 783-6251 FAX No. (Optional): " OUNTV IO 4’%...I PORN1J tri sEMAIL ADDRESS (Optional): mattlsImonresnihIaW.Com ATTORNEY FOR (Name): YOUNANI APR 1 8 2013 A. lerk SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES. ]Ohl STREET ADDRESS: 111 North Hill Street .By MAILING ADDRESS: Room 109 Deputy CITY AND ZIP CODE: Los Angeles 90012 BRANCH NAME: Central District, Stanley Mosk Courthouse PLAINTIFF/PETITIONER: YOUNANI CASE NUMBER: BC505176 DEFENDANT/RESPONDENT: NEW ENGLAND COMPOUNDING PHARMACY, INC. Ret. No. or File No.: PROOF OF SERVICE OF SUMMONS DAWN YOUNANI - P1 1. At the time of service I was at least 18 years of age and not a party to this action. 2. I served copies of the (specify documents): Summons; Complaint; Civil Case Cover Sheet; Civil Case Cover Sheet Addendum and Statement of Location; Notice of Case Assignment; General Order; General Order - Final Status Conference; Voluntary Efficient Litigation Stipulations; Statement of Damages (2) 3. a. Party served (specify name of party as shown on documents served): THE ENCINO OUTPATIENT SURGERY CENTER, INC. b. [X] Person (other than the party in item 3a) served on behalf of an entity or as an authorized agent (and not a person under item 5b whom substituted service was made) (specify name and relationship to the party named in item 3a): WALTER D. DISHELL, Registered Agent 4. Address where the party was served: 16311 VENTURA Boulevard SUITE 580, ENCINO, CA 91436 5. I served the party (check proper box) a. [ ] by personal service. I personally delivered the documents listed in item 2 to the party or person authorized to receive service of process for the party (1) on (date): (2) at (time): b. [X] by substituted service. On (date): 411512013 (2) at (time): 11:55 AM I left the documents listed in item 2 with Orin the presence of (name and title or relationship to person indicated in item 3): Margie Rodriguez, PERSON AUTHORIZED TO ACCEPT/RECEPTIONIST, a black-haired Hispanic female approx. 18-25 years of age, 5’-5’4" tall and weighing 120-160 lbs. (1) LX] (business) a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served. I informed him or her of the general nature of the papers. (2) [ ] (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual place of abode of the party. I informed him or her of the general nature of the papers. (3) 1 ] (physical address unknown) a person of at least 18 years of age apparently in charge at the usual mailing address of the person to be served, other than a United States Postal Service post office box. I informed him or her of the general nature of the papers. (4) 1 ] I thereafter mailed (by first-class, postage prepaid) copies of the documents to the person to be served at the place where the copies were left (Code Civ. Proc., § 415.20). I mailed the documents on (date): from (city): or [ X] a declaration of mailing is attached. (5) fj I attach a declaration of diligence stating actions taken first to attempt personal service, Paoo i of 2 ’ivrmAdopled for Mandatory Use Code of Civil Procedure. § 417.10 fiIudiclaI Council or California 4POS.olO(Rov. January l,2007I PROOF OF SERVICE OF SUMMONS Order No. 7756288 LAX FIL Il EXHIBIT A - PAGE 000021 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 22 of 106 Page ID #:24
  • 23. PLAINTIFF/PETITIONER: YOUNANI CASE NUMBER: I BC505176 I DEFENDANT/RESPONDENT: NEW ENGLAND COMPOUNDING PHARMACY, INC. I c. [ I by mail and acknowledgment of receipt of service. I mailed the documents listed in item 2 to the party, to the address shown in item 4, by first-class mail, postage prepaid, (1) on (date): (2) from (city): (3) 1 1 with two copies of the Notice and Acknowledgment Of Receipt and a postage-paid return envelope addressed to me. (Attach completed Notice and Acknowledgment of Receipt.) (Code Civ. Proc. § 415.30) (4) [ ] to an address outside California with return receipt requested. (Code Civ. Proc., § 415.40) d. [ ] by other means (specify means of service and authorizing code section): Additional page describing service is attached. 6. The "Notice to the Person Served" (on the summons) was completed as follows: a. [ as an individual defendant. b. [ ) as the person sued under the fictitious name of (specify): c. [ ] as occupant d. [X] On behalf of (specify): THE ENCINO OUTPATIENT SURGERY CENTER, INC. under the following Code of Civil Procedure section: 416.10 (corporation) [ 1 415.95 (business organization, form unknown) 416.20 (defunct corporation) [ ) 416.60 (minor) 416.30 (joint stock company/association) [ 1 416.70 (ward or conservatee) 1 ] 416.40 (association or partnership) 1 1 416.90 (authorized person) I 1 416.50 (public entity) 1 1 415.46 (occupant) other Person who served papers a. Name: Alberto Gutierrez b. Address: 201 South Figueroa Street, Suite 100, Los Angeles, CA 90012 c. Telephone number: 213-621-9999 d. The fee for service was: $59.50 e. lam: (1) [ I not a registered California process server. DD (2) [ ) exempt from registration under Business and Professions Code section 22350(b). (3) [X] registered California process server: (i) ] owner I ] employee (X] independent contractor For: ABC Legal Services, Inc. (ii) [X] Registration No.: 5360 Registration #: 6779 (iii) [X) County: Los Angeles County: Los Angeles 8. [X ] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. or 9. [ ] I am a California sheriff or marshal and I certify that the foregoing is true and correct. Date: 4/1612013 Alberto Gutierrez (NAME OF PERSON WHO SERVED PAPERS/SHERIFF OR MARSHAL) )SIGEuA1’URE) bs.oio (Rev. January 1, 20071 Page 2 of 2 PROOF OF SERVICE OF SUMMONS Order No. 7756288 LAX FIL EXHIBIT A - PAGE 000022 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 23 of 106 Page ID #:25
  • 24. ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Slate Bar number, and address): FOR COURT USE ONLY Matthew Resnik 182562 Simon Resnik Hayes LLP 15233 Ventura Blvd, #300 Sherman Oaks CA TELEPIIONENO.: (818) 783-6251 FAX NO. (Optional): EMAIL ADDRESS (Optional): matt@simonreaniklaw.com ATTORNEY FOR (Name): YOUNANI SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, STREET ADDRESS: 111 North Hill Street MAILING ADDRESS: Room 109 CITY AND ZIP CODE: Los Angeles 90012 BRANCH NAME: Central District, Stanley Moak Courthouse PLAINTIFF/PETITIONER: YOUNANI CASE NUMBER: BC505176 DEFENDANT/RESPONDENT: NEW ENGLAND COMPOUNDING PHARMACY, INC. Rot, No. or File No.: DECLARATION OF MAILING DAWN YOUNANI - P1 The undersigned hereby declares: that I am over 18 years of age and not a party to this action. I am a resident of or employed in the county where the mailing took place. My business address is 501 12th St., Sacramento, CA 95814. That on April 18th, 2013, alter substituted service was made, I mailed the following documents: Summons; Complaint; Civil Case Cover Sheet; Civil Case Cover Sheet Addendum and Statement of Location; Notice of Case Assignment; General Order; General Order - Final Status Conference; Voluntary Efficient Litigation Stipulations; Statement of Damages (2) to the servee in this action by placing a true copy thereof enclosed in a sealed envelope with postage prepaid for first class mail and placing the envelope for collection and mailing following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in Sacramento, CA. That I addressed the envelope as follows: THE ENCINO OUTPATIENT SURGERY CENTER, INC. 16311 VENTURA Boulevard SUITE 580 ENCINO, CA 91436 That I declare under penalty of perjury of the state of California that the foregoing is true and correct. That I executed this declaration on April 18th, 2013 at Sacramento, CA. Declarant Russell Duane, Reg, #2012-47, Sacramento, CA adsV L Order No. 7756288 LAX FIL I, ’I EXHIBIT A- PAGE 000023 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 24 of 106 Page ID #:26
  • 25. EXHIBIT A - PAGE 000024 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 25 of 106 Page ID #:27
  • 26. ft ORIGINAL -ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Slate Bat number, and address): FOR COURT USE ONLY Simon Resnik Hayes LLP 15233 Ventura Blvd, #300 FILEDSherman Oaks, CA 91403 SUPERIOR COURT OF CALtFONtA TELEPHONE NO.: 818 783-6251 FAX NC.(opWna: 818 783-6253 COUNTY OF LOS ’ EMAIL ADDRESS (OptionO/): ATTORNEY FOR (Name): DAWN YOUNANI APR 30W13 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES STREETAOORESS: 111 North Hill Street, Room 102 John A Clarke Exectt,vc (JtiicvriClcik MAILING ADDRESS: Deputy CITY Los Angeles 90012 Raul Sanchtt BRANCH NAME: Central District, Stanley MosIc Courthouse PLAINTIFF/PETITIONER: DAWN YOUNANI CASE NUMBER: 8C505176 DEFENDANT/RESPONDENT: NEW ENGLAND COMPOUNDING PHARMACY, INC Rd. No. or Fin No.: PROOF OF SERVICE OF SUMMONS DAWN YOUNANI - P1 1. At the time of service I was at least 18 years of age and not a party to this action. BY FX 2. I served copies of the (specify documents): Summons; Complaint; Civil Case Cover Sheet; Civil Case Cover Sheet Addendum and Statement of Location; Notice of Case Assignment; General Order, General Order-final Status Conference; Adr Information Package; Voluntary Efficient Litigation Stipulations; Statement of Damages (2) 3. a. Party served (specify name of party as shown on documents served): NEW ENGLAND COMPOUNDING PHARMACY, INC. DBA NEW ENGLAND COMPOUNDING CENTER b. [X] Person (other than the party in item 3a) served on behalf of an entity or as an authorized agent (and not a person under item 5b whom substituted service was made) (specify name and relationship to the party named in item 3a): JESS SMITH, PERSON AUTHORIZED TO ACCEPT SERVICE, A white female approx. 30-35 years of age 5’2’-5’4’ in height weighing 120-140 lbs with brown hair 4. Address where the party was served: LIEFF CABRASER HEINMANN BERNSTEIN, 150 FOURTH Avenue N SUITE 1650, NASHVILLE, TN 37219-2423 5. I served the party (check proper box) a. f X J by personal service. I personally delivered the documents listed in item 2 to the party or person authorized to receive service of process for the party (1) on (date): 412312013 (2) at (time): 11:40 AM b. [ J by substituted service. On (date): (2) at (time): I left the documents listed in item 2 with or in the presence of (name and title or relationship to person indicated in item 3): (1) [ J (business) a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served. I informed him or her of the general nature of the papers. (2) [ ] (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual place of abode of the party. I informed him or her of the general nature of the papers. (3) ] (physical address unknown) a person of at least 18 years of age apparently in charge at the usual mailing address of the person to be served, other than a United States Postal Service post office box. 1 informed him or her of the general nature of the papers. (4) [ ] I thereafter mailed (by first-class, postage prepaid) copies of the documents to the person to be served at the place where the copies were left (Code Civ. Proc., § 415.20). I mailed the documents on (date): from (city): or a declaration of mailing is attached. (5) [ I attach a declaration of diligence stating actions taken first to attempt personal service. Page 012 For’ Adopted for Mandatory We Code Cl Civil Procedure. § 417.10 Judicial Council of CaI,lornia PdDNO101Rev. Januar y l.20071 PROOF OF SERVICE OF SUMMONS Order No. 7699773 LAX FIL I LL’X. n.Er:i/i II I EXHIBIT A PAGE 000025 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 26 of 106 Page ID #:28
  • 27. PLAINTIFF/PETITIONER: DAWN YOUNANI ICASE NUMBER: I BC505176 I IDEFENDANT/RESPONDENT: NEW ENGLAND COMPOUNDING PHARMACY INC C. [ by mail and acknowledgment of receipt of service, I mailed the documents listed in item 2 to the party, to the address shown in item 4, by first-class mail, postage prepaid, (1) on (date): (2) from (city): (3) ( ] with two copies of the Notice and Acknowledgment of Receipt and a postage-paid return envelope addressed to me. (Attach completed Notice and Acknowledgment of Receipt.) (Code Civ. Proc., § 415.30) (4) [ to an address outside California with return receipt requested. (Code Civ. Proc., § 415.40) d. [ ] by other means (specify means of service and authorizing code section): Additional page describing service is attached. 6. The "Notice to the Person Served" (on the summons) was completed as follows: a. [ ) as an individual defendant. b. [ ] as the person sued under the fictitious name of (specify): c. [ ] as occupant d. [X On behalf of (specify): NEW ENGLAND COMPOUNDING PHARMACY, INC. DBA NEW ENGLAND COMPOUNDING CENTER under the following Code of Civil Procedure section: Er 1 416.10 (corporation) ( 415.95 (business organization, form unknown) 416.20 (defunct corporation) 1 1 416.60 (minor) 1 416.30 (joint stock company/association) ( I 416.70 (ward or conservatee) 416.40 (association or partnership) [ 3 416.90 (authorized person) 1 416.50 (public entity) [ 1 415.46 (occupant) other 7. Person who served papers a, Name: Paul H Ivey b. Address: 5543 EDMONDSON PIKE, #202, NASHVILLE, TN 37211 c. Telephone number: 256-366-1554 d. The fee for service was: $100.00 e. I am: (1) 1 X) not a registered California process server. (2) 1 3 exempt from registration under Business and Professions Code section 22350(b). (3) 1 registered California process server: (i) I I owner I ] employee I J independent contractor For: ABC Legal Services, Inc. (ii) [ J Registration No.: Registration #: 6779 (iii) ) County: County: Los Angeles 8. [X I I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. or 9. ( ] I am a California sheriff or marshal and I certify that the foregoing is true and correct. Date: 4124/2013 Paul_H Ivey NAME OF PERSON WHO SERVED PAFERSISHERIEF OR MARSHAL) Page 2012OS.O101Rov January PROOF OF SERVICE OF SUMMONS Order No. 7699773 LAX FiL ii EXHIBIT A - PAGE 000026 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 27 of 106 Page ID #:29
  • 28. EXHIBIT A - PAGE 000027 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 28 of 106 Page ID #:30
  • 29. PRINDLE, AMARO, GOETZ, HILLYARD, BARNES & REINHOLTZ LLP Jack R. Reinholtz, Esq. (Bar No. 149884) Cynthia A. Palm, Esq. (Bar No. 143486) 3 10 Golden Shore, Fourth Floor Long Beach, California 90802 Telephone: (562) 436-3946 Facsimile: (562) 495-0564 jreinholtzprindlelaw,com cpalin@prindlelaw.com ADMR 0129 Attorneys for Defendant, ENCINO OUTPATIENT SURGERY CENTER, INC. I 2 3 4 5 6 7 FI1 PLOS pGELEi CoVuT iZO’t3 CLERK Z?: REEPBy "Apy DAWN YOUNANI, Plaintiffs, V. NEW ENGLAND COMPOUNDING PHARMACY, INC. dba NEW ENGLAND COMPOUNDING CENTER; THE ENCINO OUTPATIENT SURGERY CENTER, INC. DOES 1-100, Inclusive, Defendants. CASE NO. BC505176 ANSWER TO COMPLAINT (Case assigned to Judge Rafael Ongkeko - Dept. 91) Complaint Filed: April 8, 2013 Trial Date: October 8, 2014 I’- 0 C) tLIL 0 -J 8 9 10 11 12 13 14 15 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT COMES NOW, defendant, ENC1NO OUTPATIENT SURGERY CENTER, INC. ("defendant"), and answers the unverified. Complaint of plaintiff, DAWN YOI.JNANI, for itself alone and for no other defendant, and admits, denies and alleges as follows: rTl Under the provisions of the California Code of Civil Procedure, Section 431.30, pit denies both generally and specifically each, every and all of the allegations co h Complaint and denies that plaintiff sustained damages in the sum alleged, or in Cpy S ’ , oataH. Further answer the Complaint, defendant denies that plaintiff sustained any injuries,-,, cim,ages or loss, if any, by reason of act or omission of the part of defendant, or any agents, servants or 4 (4 employees of defendant. CQ’i I C. 0 ’z’ o o ANSWER TO COMPLAINT EXHIBIT A - PAGE 000028 17 18 19 20 21 22 J r1 23 24 r:25 . 27 28 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 29 of 106 Page ID #:31
  • 30. I AS FOR A FIRST SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE 2 Defendant alleges plaintiff is barred from any recovery on the basis that plaintiffs own 3 negligence was the sole and proximate cause of the accident and any injuries he sustained; but in the 4 event a finding is made that negligence exists on the part of defendant which proximately 5 contributed to plaintiffs injuries and/or damages, plaintiffs’ amount of recovery, if any, shall be 6 reduced on the basis of plaintiff’s own comparative negligence which contributed to the injuries 7 and/or damages upon which recovery is sought by plaintiff against defendant. 8 AS FOR A SECOND SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant alleges that at all times mentioned in the Complaint, any injury, damages or loss9 10 allegedly suffered by plaintiff was directly and proximately caused and contributed to by the 11 negligence or fault of persons separate and apart from defendant, whether they be named or 12 unnamed in the within action. 0 co 13 In the event a finding is made that negligence exists on the part of defendant which LL 14 proximately contributed to plaintiffs injuries and/or damages, plaintiffs amount of recovery from 15 defendant, if any, shall be reduced on the basis of the comparative negligence of such other person. 16 Defendant shall seek from the court appropriate instructions to the trier of fact apportioning the 17 negligence or fault attributable to any such other person, whether named or unnamed, for any injury, " 18 damages or loss suffered by plaintiff. 19 AS FOR A THIRD SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE 20 Defendant alleges that the Complaint and each of the purported causes of action contained 21 therein is barred by the running of the statute of limitations as embodied in the California Code of 22 Civil Procedure, Section 340.5. 23 AS FOR A FOURTH SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE 24 Defendant alleges the Complaint and each of the purported causes of action contained therein 25 fails to state a cause of action against defendant. 26 27 /// .28 2 ANSWER TO COMPLAINT JRRiYounanilPleadin /Answer EXHIBIT A - PAGE 000029 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 30 of 106 Page ID #:32
  • 31. AS FOR A FIFTH SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE 2 Defendant alleges any injury suffered by plaintiff was caused by risks of which plaintiff was 22 i,n 23 24 25 26 27 28 times and places as set forth in the Complaint. AS FOR A SEVENTH SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant alleges the Complaint and each of the purported causes of action contained therein fails to state facts sufficient to constitute a cause of action in that the fall responsibility for the control of the situation, threatened harm, injuries and damages alleged passed to a third person or persons whose acts or omissions resulted in a superceding and intervening cause. AS FOR AN EIGHTH SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant alleges that any injury or damage suffered by plaintiff, whether as alleged or otherwise, was a direct, proximate and sole result of plaintiffs physical bodily condition and constitutional composition on, prior and subsequent to all times mentioned in the Complaint. AS FOR A NINTH, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant alleges that at all times mentioned in the Complaint, plaintiffs causes of action were limited, prescribed and governed by the terms and provisions of the California Civil Code, Sections 3333.1 and 3333.2 and defendant will urge application of these statutes at the time of the trial. AS FOR A TENTH, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant alleges that at all times mentioned in the Complaint, the conduct of defendant was statutorily non-actionable in keeping with the terms and provisions of the California Business and Professions Code, Section 2396 in that defendant, acting in good faith, was rendering emergency 3 ANSWER TO COMPLAINT EXHIBIT A - PAGE 000030 3 4 5 6 7 - 8 - 0 9 z 10 11 z 12 0 go 13 14 -J 15 0 16 0 17 18 z 19 20 21 well aware or reasonably should have been aware and which voluntarily assumed. AS FOR A SIXTH SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant is informed and believes and based upon such information and belief alleges that any injury, damage or loss sustained by plaintiff was proximately caused and contributed to by negligence on plaintiffs part in that plaintiff did not exercise ordinary care on his own behalf at the Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 31 of 106 Page ID #:33
  • 32. medical care upon the request of another physician, under conditions arising from the prior care of said precedent physician. AS FOR AN ELEVENTH, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant alleges plaintiff failed to mitigate or minimize damages, if any, in that plaintiff failed to properly maintain or otherwise conduct his activities and otherwise failed to take adequate measures to minimize his delays, damages, expenditures and extra costs, if any, incurred. AS FOR A TWELFTH, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant alleges that the Fair Responsibility Act of 1986, commonly known as Proposition 51, be given full force and effect pursuant to the California Civil Code, Section 1431, subsections 1431.1 through 143 1.5. Specifically, it is asserted by defendant that in the event a judgment is rendered against him and in favor of plaintiff, he can be held responsible, if at all, for only that proportion of "non-economic" damages for which he is found liable by jury determination, that the rule of joint and several liability not apply under such circumstances. AS FOR A THIRTEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant alleges that if any fault is found on the part of defendant, his liability for non- economic loss to plaintiff is no greater than that percent of the damages which equal the percent of fault attributed to defendant. AS FOR A FOURTEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant alleges that plaintiff is barred by the California Civil Code, Section 1714.8 in that no healthcare provider shall be liable for professional negligence or malpractice for any occurrence or result solely on the basis that the occurrence or result was caused by the natural course of a disease or condition or was the natural or unexpected result of reasonable treatment rendered for the disease or condition. I/I I/I III 4 ANSWER TO COMPLAINT - N I- 0 2: LL LJ I’>. - - -N 0 0 - a 2: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ’r 23 24 (:25 (:27 .28 EXHIBIT A- PAGE 000031 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 32 of 106 Page ID #:34
  • 33. S I AS FOR A FIFTEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE 2 Defendant alleges that if there is a judgment in favor of plaintiff and against defendant and if 3 such recovery exceeds $50,000, that such damages be paid by periodic payments pursuant to the 4 California Code of Civil Procedure, Section 667.7, 5 AS FOR A SIXTEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE 6 Defendant alleges that certain limitations in regard to fees shall apply to any recovery for 7 damages pursuant to the California Business and Professions Code, Section 6156. 8 AS FOR A SEVENTEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE 9 DEFENSE 10 Defendant alleges that if it should be found that defendant is in any manner legally 11 responsible for injuries or damages sustained by plaintiff, which supposition is not admitted but 12 merely stated for the purpose of this defendant, then any such injuries or damages found to have In 13 been incurred or suffered by plaintiff in this action were proximately contributed to by other persons 14 or entities; therefore, it is necessary that the proportionate degree of negligence or fault of each such 15 person or entity be determined and pro-rationed so that as between defendants, this answering 16 defendant pays only that amount of damages caused by his negligence. 17 If this answering defendant is not guilty of any active negligence, all other negligent 18 defendants should pay all the judgment and that the liability of this answering defendant, if any, for 19 the amount of non-economic damages, if any, should be limited in direct proportion of this 20 answering defendant’s percentage of negligence or fault, if any, pursuant to the Fair Responsibility 21 Act of 1986, Section 1431 of the California Civil Code and a separate judgment be rendered against 22 this answering defendant for that amount. 23 AS FOR A EIGHTEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE 24 DEFENSE 25 Alleges that defendant is not the principle of any physicians who may have performed health 26 care on plaintiff and that none of the doctor’s whom performed health care upon plaintiff while at 27 28 ANSWER TO COMPLAINT JRRJYoun,n i/Plead infAnsver EXHIBIT A - PAGE 000032 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 33 of 106 Page ID #:35
  • 34. 1 2 3 4 5 6 7. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I.J 277 r 28 L. 0 ULL LL 0 -J -- .1 ... -- -.*)------11--- --- -- --*- ~ - - -- - - ~ -- - - - - 0- - - the defendant’s facility are agents of decedent as that term is defined in applicable California statute I and laws. AS FOR A NINETEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant alleges that if there exists an arbitration provision which requires all matters arising out of the professional health care rendered on behalf of Encino Outpatient Surgery Center to any of its patients be submitted to binding arbitration. AS FOR A TWENTIETH, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Defendant alleges that plaintiff’s claims are barred by the statute of limitations and that defendant will assert his rights to bifurcate the statute of limitations defense in accordance with Code of Civil Procedure section 597.15. AS FOR A TWENTY FIRST, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Because discovery has not yet been initiated by this answering defendant, and to avoid waiver of other potential affirmative defenses which may or may not apply, this answering defendant raises the following additional defenses: lack of personal jurisdiction, lack of subject matter jurisdiction, failure to join indispensable parties, misj oinder of parties, lack of standing, privileged communication (Civil Code section 47), plaintiffs complaint is barred by the provisions of the (Labor Code sections 3601, 3602, et seq.), common law manager’s privilege, waiver, laches, unclean hands, res judicata, collateral estoppels, judicial estoppels, equitable estoppels, abatement, bankruptcy, Good Samaritan immunity, quality of care/utilization review immunity (Health & Safety Code section 1370), peer review committee immunity, immunity from liability pursuant to (cjyjl Code section 43.92); and, failure to state a cause of action because this answering defendant is not in the business of designing, manufacturing, producing, selling, profiting from, or placing in the stream of commerce those products alleged in the complaint. HI I/I I/I 6 ANSWER TO COMPLAINT EXHIBIT A - PAGE 000033 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 34 of 106 Page ID #:36
  • 35. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 26 : 27 128 o U’ LU U. U. U- 0: S AS FOR A TWENTY SECONDST, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Alleges that the medication provided to plaintiff Dawn Younani was not manufactured, design, distributed or sold to plaintiff by defendant Encino Outpatient Surgery Center, Inc. and thus defendant is not in the chain of commence subject to a products liability claim.. AS FOR A TWENTY THIRD, SEPARATE, DISTINCT AND AFFIRMATIVE DEFENSE Alleges that the epidural spinal steroid injections administered to plaintiff were not contaminated and did not cause any injuries to plaintiff. WHEREFORE, defendant asks judgment as follows: I. That plaintiff take nothing by way of the Complaint; 2. For costs of suit, including attorney’s fees; and 3. For such other and further relief as the court may deem just. DATED: May 1 20l 3 PR[ND1$ ’ MARO, GOETZ, HILLRD,ARNES & REFNHOLTZ LLP / Rj RE[NHOLTZ I ICcc. rne1s Or Defendant, I INUTPATIENT SURGERY CENTER, II M 7 ANSWER TO COMPLAINT JRRJYounani,PIeadin/Answer EXHIBIT A - PAGE 000034 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 35 of 106 Page ID #:37
  • 36. S 1 PROOF OF SERVICE Younani v. New England Compounding Pharmacy, Inc. 2 Case No. BC5051 76 3 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 4 I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and am not a party to this action. My business address is 310 Golden Shore, Fourth Floor, 5 Long Beach, California 90802. 6 On May 15, 2013, I served the foregoing document described as ANSWER TO COMPLAINT on interested parties in this action by placing a true copy thereof enclosed in sealed 7 envelopes as follows: 8 SEE ATTACHED SERVICE LIST 1 (By U.S. Mail) I am readily familiar with my employer’s business practice for collection and processing of correspondence for mailing with the United States Postal Service, I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or 1 postage meter is more than one day after date of deposit for mailing in affidavit. I deposited i 1 such envelope(s) with postage thereon fully prepaid to be placed in the United States Mail at 12 Long Beach, California. LI (By Facsimile) I served a true and correct copy by facsimile pursuant to C.C.P. 1013(e), 13 calling for agreement and written confirmation of that agreement or court order, to the number(s) listed above or on attached sheet. Said transmission was reported complete and 14 without error. 15 0 (By Personal Service) I caused to be delivered by hand by to the interested parties in this action by placing the above mentioned document(s) thereof in 16 envelope addressed to the office of the addressee(s) listed above or on attached sheet. 17 LI (By Overnight Courier) I served the above referenced document(s) enclosed in a sealed package, for collection and for delivery marked for next day delivery in the ordinary course of 18 business, addressed to the office of the addressee(s) listed above or on attached sheet. 19 0 (By E-Mail) I transmitted a copy of the foregoing documents(s) via e-mail to the 20 addressee(s). (State) I declare under penalty of perjury under the laws of the State of California that the 21 foregoing is true and correct. 22 0 (Federal) I declare that I am employed in the office of a member of the Bar of this Court, at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on May 15, 2013, at Long Beach, California. n25 2u,_IZZL~TRACY GUY p. 27 28 EXHIBIT A - PAGE 000035 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 36 of 106 Page ID #:38
  • 37. I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 r 23 -24 27 28 Younani v. New England Compounding Pharmacy, Inc. Case No. BC5051 76 SERVICE LIST Corinne Elfassi, Esq. Attorneys for Plaintiff Simon Resnik Hayes, LLP 15233 Ventura Blvd., Ste. 250 Sherman Oaks, CA 91403 (818) 783-6251 Fax: (818) 783-6253 Email: Corinne(,srh1aw.com EXHIBIT A - PAGE 000036 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 37 of 106 Page ID #:39
  • 38. EXHIBIT A - PAGE 000037 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 38 of 106 Page ID #:40
  • 39. SUM MS SUM- Cross-Complaint (SOLO FOXIL1j (C!TA CION JUDICIAL-CONTRA DEMANDA) I10S ANGELES SUPERIOR COURT NOTICE TO CROSS-DEFENDANT: MAY 162013(AVISO AL CONTRA-DEMANDADO): NEW ENGLAND COMPOUNDING PHARMACY, INC. dba NEW JUh CLERK ENGLAND COMPOUNDING CENTER and ROES 1-50, Inclusive ./7,4 BY MARV FVnp F.q YOU ARE BEING SUED BY CROSS-COMPLAINANT: (LO ESTA DEMANDANDO EL CONTRADEMANDANTE): ENCINO OUTPATIENT SURGERY CENTER, INC. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the cross-complainant. A letter or phone call will not protect you. Your written response must be in proper legal form If you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selme!p), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center (www.courtinfo.ca.govfselfhe!p), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court’s lien must be paid before the court will dismiss the case. Tiene 30 D1AS DE CALENDARIO despuØs de que le entreguen esta citacin y papeles legales para presentar una respuesta par esqrito en esta carte y hacer que se entregue una copia a! contrademandante. Una cart a o una Ilamada telefOnica no 10 protegen. Su respuesta par escrito tiene que estar en formato legal correcto Si desea quo procesen su caso en la code. Es posible gue haya tin form u!ario que usted pueda usar para su respuesta. Puede enconfrar estos formularios de la code y mØs informacin en ci Centro do Ayuda de las Codes de California ( www.sucorte.ca.gov ), en la biblioteca de leyes de su condado a en a code que !e quede mÆs cerca. Si no puede pagar a cuota de presentacin, pida al secrefario de a code que le de tin formulario de exenciOn do pago de cuotas. SI no presenta su respuesta a fiempo, puede perder el caso par incumplimienfo y la code /e podra quitar su sueldo, dinero y bienes sin mils advertencia. Hay otros requisifos legales. Es recomendable que Ilame a un abogado inmediafamente. Si no conoce a tin abogado, puede liamara Un ,servicio de rem jsin a abogados. Si no puede pagar a tin abogado, es posible que cum p/a con /as requisilos para obfenerservicios legales gratuitos de un pro grama de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sltio web do California Legal Services, (www.lawhelpcalifornia.org ), en ci Centro de Ayuda do las Codes de California (www.sucorte.ca.gov), a oniØndose en confacto con a code a el co!egio de abogados locales. A VISO: Par fey, la code fiene derecho a reclamar las cuofas y los cosfos exenfos par importer un gravamen sabre cualquier recuperacin de $10,000 6 mÆs de valor recibida median to un acuerdo a una concesiÆndo arbitraje en un caso de derecho civil. Tiene quo pagar ci gravamen do la code antes de que la code pueda desechar ci caso. The name and address of the court is: SHORT NAME OF CASE (from Complaint): (Nombro de Case): (El nombre y direcciOn do la carte es): YOUNANI Y. NEW ENGLAND COMPO SUPERIOR COURT FOR THE STATE OF CALIFORNIA CASE NUMBER. (NumerodelCaso): 111 N. Hill Street BC505176 Los Angeles, CA 90012 Central The name, address, and telephone number of cross-complainant’s attorney, or cross-complainant without an attorney, is: (El nombre, la direcciOn y el nmero de telØfono del abogado del contrademandante, o del contrademandante quo no tiene abogado, es): Jack R. Reinholtz, Esq. (562) 436-3946 (562) 495-0564 Prindle, Arnaro, Goetz, Hillyard, Barnes & Reinholtz 310 Golden Shore, 4th Floor Long Beach, CA 90802 DATE: Clerk, by . , Deputy (Fecha) (Secretario) ._ .(Adjunto) - flIP’s1 - (For proof of service of this summons, "69’e (form POS-01 0).) (Parªpweba de entrega do esta citatiOn use el formulan’o Proof of Service of Summons (POS-010).) MrlTI(’ TI.1 DrM ciir. V,s,, SEXEj Form Adopted for Mandatory Use Judicial Council of California SUM-1 10 (Rev. July 1, 2009] 1. ElI as an individual crossdefendant. 2. as the person sued under the fictitious name of (specify): 3. LIII on behalf of (specify): under: LIiiIl CCP 416.10 (corporation) LIII CCP 416.60 (minor) Lull CCP 416.20 (defunct corporation) [liii CCP 416.70 (conservatee) LIII COP 416.40 (association or partnership) [II] CCP 416.90 (authorized person) LII other (specify).’ 4. LII by personal delivery on (date): Pane I of 1 SUMMONSCROSS-COMPLAINT e Code of Civil Procedure, §§ 412.20, 428.60, 465 EXHIBIT A - PAGE 000038 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 39 of 106 Page ID #:41
  • 40. EXHIBIT A - PAGE 000039 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 40 of 106 Page ID #:42
  • 41. PRINDLE, AMARO, GOETZ, HILLYARD, BARNES & REINHOLTZ LLP Jack R. Reinholtz, Esq. (Bar No. 149884) Cynthia A. Palm, Esq. (Bar No. 143486) 310 Golden Shore, Fourth Floor Long Beach, California 90802 Telephone: (562) 436-3946 Facsimile: (562) 495-0564 jreinholtz@prindlelaw.com cpalin@prindlelaw.com ADMR 0129 Attorneys for Defendant, ENCINO OUTPATIENT SURGERY CENTER, INC. FILEDLOS ANGELES SUPERIOR COURT MAY 162013 CLERK BY MARY Ffl SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT DAWN YOU1IANI, CASE NO. BC505176 Plaintiffs, CROSS-COMPLAINT V. (Case assigned to Judge Rafael Ongkeko - Dept. 91) NEW ENGLAND COMPOUNDING Complaint Filed: April 8, 2013 PHARMACY, INC. dba NEW ENGLAND Trial Date: October 8, 2014 COMPOUNDING CENTER; THE ENCINO OUTPATIENT SURGERY CENTER, INC. and DOES 1-100, Inclusive, Defendants. ENCINO OUTPATIENT SURGERY CENTER, INC., Cross-Complainant, V. NEW ENGLAND COMPOUNING PHARMACY, INC. dba NEW ENGLAND COMPOUNDING CENTER and ROES 1-50, Inclusive Cross-Defendants. 1 2 3 4 5 6 7 8 9 10 11 12 LL o W 13 U. b. 140; 15 16 17 18 19 20 21 22 r 23 24 25 26 0 27 28 1 )MPLAINT JRRJYounani/PIeadin/CrossCornpIainI EXHIBIT A PAGE 000040 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 41 of 106 Page ID #:43
  • 42. 7 ! : 10 12 I 13UIc 1 4I o 160 6 17 18 19Z 20 21 22 fl 23 24 : 25 26 27 28 1 COMES NOW, defendant and cross-complainant, ENCINO OUTPATIENT SURGERY 2 I CENTER, INC. ("cross-complainant"), and for causes of action against each cross-defendants, 3 I allege as follows: 4 FIRST CAUSE OF ACTION 5 (Equitable Indemnity and Contribution) 6 1. The true names and capacities, whether individual, corporate, associate or otherwise, of cross-defendants designated herein are unknown to cross-complainant who therefore sue said cross-defendants by such fictitious names. Cross-complainant is informed and believe, and thereon allege, that each of the cross-defendants designated herein is, in some manner, legally responsible for the events and happenings herein referred to, and when the names and capacities of said cross- defendants are ascertained, cross-complainant will seek leave of court to amend this Cross- Complaint to reflect their true names and capacities. 2. Cross-complainant is informed and believe, and thereon allege, that all times mentioned herein, cross-defendants, and each of them, were the agents, employers, and associates of each other, and acting with the express and/or implied permission, authority, and knowledge of each other, and at all times herein mentioned were acting within the course and scope of said employment and/or agency with the knowledge and permission of each and all cross-defendants. 3. Plaintiff, DAWN YOUNANI ("plaintiff") filed a Complaint against cross- complainant and others, including cross-defendants, and each of them. Such Complaint is incorporated herein by reference. 4. Cross-complainant allege on the basis of information and belief that the damages, if any, suffered by plaintiff herein as alleged in the Complaint on file herein, were proximately caused, in whole or part, by the negligence or fault of cross-defendants, and each of them. 5. In the event the trier of fact determines that cross-complainant is liable to plaintiff, cross-complainant is entitled to recover as indemnity and contribution from cross-defendants, and each of them, that portion of the judgment which is attributable to the percentage of comparative fault or negligence which assessed or assessable against cross-defendants, and each of them. 2 CROSS-COMPLMNT Lrosscoinviaint EXHIBIT A - PAGE 000041 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 42 of 106 Page ID #:44
  • 43. 1 SECOND CAUSE OF ACTION 2 (Implied Indemnity) 3 6. Cross-complainant incorporates by reference paragraphs 1 through 5 of the first cause 4 of action as though fully set forth herein. 5 7. Cross-complainant believes that if it is found negligent in any manner or at fault, that 6 said negligence or fault on the part of said cross-complainant is only passive and secondary, and that 7 the negligence or fault of cross-defendants, and each of them, is active and primary. By reason of 8 said cross-defendants’ active and primary negligence or fault, cross-complainant is entitled to be F. 9 indemnified and held harmless from any judgment against cross-complainant. Further, cross- 10 complainant is entitled to be reimbursed for costs, expenses, and attorneys’ fees incurred in the 11 defense of the Complaint brought by plaintiff and also in prosecution of this Cross-Complaint. 12 THIRD CAUSE OF ACTION 13 (Declaratory Relief) U. 14 8. Cross-Complainant incorporates by reference each of the allegations of the first and. 15 second causes of action as though fully set forth herein. 16 9. An actual controversy has arisen and now exists between cross-complainant and 17 cross-defendants in that cross-complainant contends, and cross-defendants deny, that cross- 18 defendants are obligated to partially or fully indemnify cross-complainant for sums which cross- 19 complainant may be compelled to pay as a result of any damages, judgment, or other awards 20 recovered by plaintiff against cross-complainant. 21 10. Cross-complainant desires ajudicial determination of the respective rights and duties 22 of Cross-Complaint and cross-defendants with respect to the damages claimed in the Complaint of 23 plaintiff herein. In particular, cross-complainant desires a declaration of the respective liabilities of 24 cross-complainant and cross-defendants’ responsibility to indemnify cross-complainant for such 25 which cross-complainant may be compelled to pay and or which cross-defendants have been 26 determined responsible. 27 11. Such a declaration is necessary and appropriate at this time in order that cross- 28 complainant may ascertain its rights and duties with respect to the claim of plaintiff and the claim of 3 CROSS-COMPLAINT JRRJYo,,nanhlPleadin /CrossCornplaint EXHIBIT A - PAGE 000042 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 43 of 106 Page ID #:45
  • 44. 1 cross-complainant arises out of the same transaction, and determination of both in one proceeding is 2 necessary and appropriate in order to avoid the circuity and multiplicity of actions that would result 3 if cross-complainant is required now to defend this action against plaintiff and then bring a separate 4 action against cross-defendants for indemnification. 5 WHEREFORE, cross-complainant prays for judgment against cross-defendants, and each of 6 them, as follows: 7 1. If there is a judgment against cross-complainant, then a judgment in that like amount 8 be entered against cross-defendants, and each of them, in favor of cross-complainant; 9 2. For an order of this court that cross-complainant is entitled to full indemnity by cross- 10 defendants, and each of them, for any settlement or compromise entered into by cross-complainant, 11 or for any judgment entered against cross-defendants; 12 3. For an order establishing and fixing the percentage of comparative fault attributable 13 to each person and/or entity whose combined negligence, if any, proximately caused or contributed 14 to the damages, if any, to plaintiff. 15 4. For an order permitting cross-complainant, if found to be liable, to recover from 16 cross-defendants, and each of them, that portion of the judgment that is attributable to the 17 comparative fault assessed or assessable against cross-defendants, and each of them; 18 5. For a judicial determination of cross-defendants’ responsibility and liability for the 19 damages claimed by plaintiff, if any, are found to exists; 20 6. For all costs incurred herein; 21 11 7. For attorneys’ fees according to proof; and LL 0 U) U U IL U. 0 -J 22 III :23 I/I "-24 III 26 r28 4 DMPLAINT EXHIBIT A PAGE 000043 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 44 of 106 Page ID #:46
  • 45. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 U- U) LU U U-; o - .-. ..--.-. 8. For such other and further relief as this court deems just and proper. DATED: May A 2013 PR[NDLE, AMARO, GOETZ, HILLYARD, BARNES & RE[NHOLTZ LLP By:/ / JAC4 R. I.E[NHOLTZ Att neysf Defendant, kJZWCINO OUTPATIENT SURGERY CENTER, INC. 5 CROSS-COMPLAINT JCrossComplaint EXHIBIT A - PAGE 000044 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 45 of 106 Page ID #:47
  • 46. 2 4 on . . PROOF OF SERVICE Younani v. New England Compounding Pharmacy, Inc. Case No. BC5051 76 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. 1 . am over the age of 18 years and am not a party to this action. My business address is 310 Golden Shore, Fourth Floor, Long Beach, California 90802. On May 15, 2013, I served the foregoing document described as SUMMON AND CROSS- COMPLAINT on interested parties in this action by placing a true copy thereof enclosed in sealed envelopes as follows: SEE ATTACHED SERVICE LIST (By U.S. Mail) I am readily familiar with my employer’s business practice for collection and processing of correspondence for mailing with the United States Postal Service, I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter is more than one day after date of deposit for mailing in affidavit. I deposited such envelope(s) with postage thereon fully prepaid to be placed in the United States Mail at Long Beach, California. El (By Facsimile) I served a true and correct copy by facsimile pursuant to C.C.P. 1013(e), calling for agreement and written confirmation of that agreement or court order, to the number(s) listed above or on attached sheet. Said transmission was reported complete and without error. (By Personal Service) I caused to be delivered by hand by to the interested parties in this action by placing the above mentioned document(s) thereof in envelope addressed to the office of the addressee(s) listed above or on attached sheet. (By Overnight Courier) I served the above referenced document(s) enclosed in a sealed package, for collection and for delivery marked for next day delivery in the ordinary course of business, addressed to the office of the addressee(s) listed above or on attached sheet. El (By E-Mail) I transmitted a copy of the foregoing documents(s) via e-mail to the addressee(s). EJ (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 0 (Federal) I declare that I am employed in the office of a member of the Bar of this Court, at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on May 15, 2013, at Long Beach, California. _-TRACY G(JY ’ _ - ) 6 EXHIBIT A - PAGE 000045 10 11 12 13 14 15 16 17 18 19 20 21 22 r 23 24 (25 N26 (:27 .28 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 46 of 106 Page ID #:48
  • 47. 1 Younani v. New England Compounding Pharmacy, Inc. Case No. BC5051 76 2 3 SERVICE LIST 4 Corinne Elfassi, Esq. Attorneys for Plaintiff Simon Resnik Hayes, LLP 6 15233 Ventura Blvd., Ste. 250 Sherman Oaks, CA 91403 7 (818)783-6251 Fax: (818) 783-6253 8 Email: Corinne(srh1aw.com 9 10 11 12 13 14 15 16 17 18 19 20 21 22 r23 24 25 26 27 28 EXHIBIT A - PAGE 000046 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 47 of 106 Page ID #:49
  • 48. EXHIBIT A - PAGE 000047 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 48 of 106 Page ID #:50
  • 49. - DO NOT FILE WITH THE COURT- CIV-050 -UNLESS YOU ARE APPLYING FOR A DEFAULT JUDGMENT UNDER CODE OF CIVIL PROCEDURE § 585 - ATTORNEY OR PARTY WITHOUT ATTORNEY (Name &id Aks) TELEPHONE M0 FOR COURT USE ONLY Corirme Elfassi, Esq. #261243 (818)783-6251 SIMON RESNIK HAYES, LLP 15233 VENTURA BLVD., SUITE 250 2;;SHERMAN OAKS, CA 91403 & Co LJRT OF CA LIFORNIA ORNEY FOR (iw).ATTORNEY coJ vor ios c s SUPERIOR COURT OF CALIFORNIA, COUNTY OF Los Angeles sTRFET 111 North Hill Street U1i) MAJLINGADDRESS; lii North Hill Street CITY Los Angeles, 90012 Jolmn ciu-. ERANCH NAME Stanley_Mosk Courthouse BY DcputY PLAINTIFF: DAWN YOUNANI DEFENDANT: NEW ENGLAND COMPOUNDING CASE NUMBER. STATEMENT OF DAMAGES (Personal Injury or Wrongful Death) BC505 176 To (name atone defendant on!y):NEW ENGLAND COMPOUNDING PHARMACY, INC. DIM NEW ENGLAND COMPOUNDING CENTER Plaintiff (name of one plaintiff only)-DAWN YOU NAN I seeks damages in the above-entitied action, as follows: - AMOUNT 1. General damages a.[J Pain, suffering, and inconvenience .................................................................................................... $1,000,000 - b.LJ Emotional distress . ............................................................................................................................. $ 1,000,000 . E] Loss of consortium .............................................................................................................................$ d.E] Loss of sociey and companionship (wrongful death actions only) .....................................................$ - e.EI Other (specify) $ f. EJ Other (specify) $ . EJ Continued on Attachment 1.g. 2. Special damages a.LKJ Medical expenses (to date) ................................................................................................................ $500,000 b.CE] Future medical expenses (present value) .......................................................................................... $1,000,000 c.EJ Loss of earnings (to date) ...................................................................................................................$ d.EJ Loss of future earning capacity (present value) .................................................................................. $ a. EJ Property damage ................................................................................................................................$ 1. L] Funeral expenses (wrongful death actions only) ................................................................................$ g.LJ Future contributions (present value) (wrongful death actions only) ....................................................$ h.C] Value of personal service, advice, or training (wrongful death actions only) ......................................$ I. Other (specify) $____________ Other (specify) $ k. Continued on Attachment 2.k. 3. [:9J Punitive damages: Plaintiff reserves the right to seek punitive damages in the amount of (specify).. $ 1,000,000 when pursuing a judgment in the suit filed against you. ’ Date: 4/10/13 1. Corinne Elfassi (rIPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY FOR PLA INTIFF) (Proof of service on reverse) Page I of 2 r,om McotaforMIcryuie STATEMENT OF DAMAGES C3CMPTOcofO, 425 11.425.115 .hziIe( Co c ComIa "cov.tznto c.gov Civov.iu-y1,fl (Personal Injury or Wrongful Death) EXHIBIT A - PAGE 000048 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 49 of 106 Page ID #:51
  • 50. CIV-050 - PLAINTIFF: DEFENDANT; BC505 I 76 PROOF FSER"10E (Alter having the other party served as described below, with any of the documents identified in item 1, have the person who served the documents Complete this Proof of Service. Plaintiff cannot serve these papers.) 1. I served the . ci Statement of Damages ETJ Other (specify): b. on (name): c. by serving =defendant EJ other (name and title or relationship to person served): ci. =by delivery [IJ at home (Illat business (1) dale: (2) time: (3) address: e. =by mailing (1) date: (2) place: 2 Manner of service (check proper Liu9: a. LI] Personal service. By personally delivering copies. (CCP § 415.10) b. [I] Substituted service on corporation, unincorporated association (including partnership), or public entity. By leaving, during usual office hours, copies in the office of the person served with the person who apparently was in charge and thereafter mailing (by first-class mail, postage prepaid) copies to the person served at the place where the copies were left. (COP § 415.20(a)) C. [TI Substituted service on natural person, minor, conservatee, or candidate. By leaving copies at the dwelling house, usual place or abode, or usual place of business of the person served in the presence of a competent member of the household or a person apparently in charge of the office or place of business, at least 18 years of age, who was informed of the general nature of the papers, and thereafter mailing (by first-class mail, postage prepaid) copies to the person served at the place where the copies were left. (CCP § 415.20(b)) (Attach separate declaration or affidavit stating acts relied on to establish reasonable diligence In first attempting personal service.) d. CT] Mall and acknowledgment service. By mailing (by first , class mail or airmail, postage prepaid) copies to the person served, together with two copies of the form of notice and acknowledgment and a return envelope, postage prepaid, addressed to the sender. (CCP § 415.30) (Attach completed acknowledgment of receipt.) e. i:i: Certified or registered mail service. By mailing to an address outside California (by first-class mail, postage prepaid, requiring a return receipt) copies to the person served. (CCP § 415.40) (Attach signed return receipt or other evidence of actual delivery to the person served.) i. [TI Other (specify code section): III] additional page is attached. 3. At the time of service I was at least 18 years of age and not a party to this action. 4. Fee for service , $ 5. Person serving a. LII California sheriff, marshal, or constable 1. Name, address and telephone number and, II applicable, b. Reg!stered COlifuitiiu process server county of registration and numbe r: C. Employee or independent contractor of a registered California process server d. [II] Not a registered California process server e. LI Exempt from registration under Bus. & Prof. Code §22350(b) I declare under penalty of perjury under the laws of the (For California sheriff, marshal, or constable use only) State of California that the foregoing is true and correct. I certify that the foregoing is true and correct. Date: I (slcMTuge} cvoso fR. Jariy 1, 2O07 PROOF OF SERVICE (Statement of Damages) Date: (SIGNATURE] Page 2 012 Code of C,w4 P,oc.ckS 425,11, 425,115 EXHIBIT A - PAGE 000049 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 50 of 106 Page ID #:52
  • 51. ATTORHEV OR PARTY YOIHOtST AU OR HEY I Uimo. t. Sw too*o. and qu?1’St Simon Rosnik Hayes LIP 15233 Vontura Blvd, #300 Sherman Oaks, CA 91403 ( ISLEPHONSHO 818783-6251 FAX NO. (OniO - 818 783-6253 l’ EIJLAOVRESS(0J1J AflORNEYPOR(io./ DAWN YOUN!ANI -, SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES ’ STREET ARESS 111 North Hill Street, Room 102 MAcLING ADONESS: Ciry ANDZcPCCOE Los Angeles 90012 ORANCH NAME Central District, Stanley Mask Courthouse PLAINTIFF/PETITIONER: DAWN VOUNANI CASRNUU8ER BC505176 DEFENDANT/RESPONDENT: NEW ENGLAND COMPOUNDING PHARMACY, INC Raj. No. N Fad NO PROOF OF SERVICE OF SUMMONS DAWN YOUNAN1 . P1 1. At the time of service I was at least 18 years of age and not a patty to this action. y7 FX 2. 1 servo copies othe (specify documents): Summons(Comp!aint Civil Case Cover Sheet; Civil Case Cover Sheet Addendum and Statement of Location; Notice of Case Assignmcnt General Or44r General Order-Final Status Conference; Adr Information Package; Voluntary Efficient Litigation SlipulaUonstathmont of Damages (2) 3. a. Party served (specify name of party as shown on documents served): >’NEW ENGLAND COMPOUNDING PHARMACY, INC. ElBA NEW ENGLAND COMPOUNDING CENTER b. (X J Person (other than the party in item 3a) served on behalf of an entity or as an authorized agent (and not a person /under item 5b whom substitute’ervice was made) (specify name and relationship to the party named in item 3a): )<JESS SMITH, PERSON AUThOI&ED TO ACCEPT SERVICE, A white female approx. 30-35 years 01 age 5’2"-5’4" in height weighing 120-140 lbs with brown hair 4. Addres6 where the party was served: jIJEFF CABRASER HEINMANN BERNSTEIN, 150 FOURTH Avenue N SUITE 1650, NASHVILLE, TN 37219-2423 5. I served the party (check proper box) a. (X J by personal service. I personally delivered the docijnents listed in item 2 to the party or person authorized to receive service of process for the party (1) on (date)11412312013 (2) at (time): 11:40 AM b. ] by substituted service. On (date): (2) at (time): I left the documents listed in item 2 with or in the presence of (name and title or relationship to person indicated in item 3): (1) 1 (business) a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served. 1 informed him or her of the general nature of the papers. (2) ( j (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual place of abode of the party. I informed him or her of the general nature of the papers. (3) [ J (physical address unknown) a person of at least 18 years of age apparently in charge at the usual mailing address of the person to be served, other than a United States Postal Service post office box. I informed him or her of the general nature of the papers. (4) J I thereafter mailed (by first-class, postage prepaid) copies of the documents to the person to be served at the place where the copies were left (Code Civ. Proc., § 415.20). I mailed the documents on (date): From (city): or a declaration of mailing is attached, (5) [ I attach a declaration of diligence stating actions taken first to attempt personal service, Fee,t N2pt&d f9c MdtN Uls ,ti.ottet.l Cowci Of C1M POS.OtO Jser 1, 2511 U. PROOF OF SERVICE OF SUMMONS Pie 10 2 CoO.dCOd PcO(.ASLS4ST%O Order No. 7699773 LAX Fit. EXHIBIT A - PAGE 000050 I’ Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 51 of 106 Page ID #:53
  • 52. I PLNnFF/pETrnoNER DAWN ?OUNANI C505176 HDEFENDANTEsPON0ENT NEW ENGLAND COMPOUNDING PHARMACY, C. ] by mall and acknowledgment of receipt of service. I mailed the documents listed in item 2 to the party, to the address shown in item 4, by first-class mail, postage prepaid. (1) on (dale): (2) from (city): (3) 1 1 with two copies of the Notice and Acknowledgment of Receipt and a postage-paid return envelope addressed to me. (Attach completed Notice and Acknowledgment of Receipt.) (Code Civ. Proc.. § 415.30) (4) L ) to an address outside California with return receipt requested (Code Civ. Proc.. § 415.40) d. J by other means (specify means of service and authorizing code section): Additional page describing service is attached. 6. The ’NoUce to the Person Served’ (on the summons) was completed as follows: a. ) as an individual defendant. b. ( as the person sued under the fictitious name of (specify): c. [ j as occupant d. [X) On behalf of (specify): NEW ENGLAND COMPOUNDING PHARMACY, INC. I)BA NEW ENGLAND COMPOUNDING CENTER under the following Code of Civil Procedure section: r 416,10 (corporation) [ ) 415.95 (business organization, form unknown) ) 416,20 (defunct corpoiation) ) 4‘16.60 (minor) j 416.30 (joint stock company/association) 1 416.70 (ward or conservatee) 416.40 (association or partnership) j J 416.90 (authorized person) 416.50 (public entity) ( 415.46 (occupant) I other Person who served papers a. Name: Paul H Ivey b. Address: 5543 EDMONDSON PIKE, 17202, NASHVILLE, TN 37211 c. Telephone number: 256-366-1554 d. The fee for service was: $100.00 e. I am: (1) [X) not a registered California process server. (2) ) exempt from registration under Business and Professions Code section 22350(b). (3) 1 I registered California process server: (i) 1 1 owner ( I employee independent contractor For. ABC Legal Services, Inc. (ii) [ J Registration Nn Registration ft: 6179 (iii) [ J County: County: Los Angeles 8. (X ] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. or 9. 1 1 (am a California sheriff or marshal and I certify that the foregoing is true and correct. Date: 4/24/2013 Paul _H_Ivey -. (NAME OF PR5ON WHO JVU J’APflS!SRZRjFr OR MAJ05’4As4 P010lR..Ja*a’y 1. 200 71 paw 2ol2 PROOF OF SERVICE OF SUMMONS Order No. 7699773 LAX flL EXHIBIT A - PAGE 000051 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 52 of 106 Page ID #:54
  • 53. SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES COURTHOUSE ADDRESS: CASc NUMBER: BC505176 PLAINTIFF: DAWN DEFENDANT: DEPARTMENT/UNIT NEW RM.118 NOTICE OF REJECTION TELEPHONE NUMBER DEFAULT/CLERK’S JUDGMENT 213-974-7698 Your Request For Entry of Default and/or Clerks Judgment. Judicial Council form dy-i 00, submitted on 6-11-13 Is rejected for the following reason(s): Request For Entry of Default El 1. Answer/demurrer/motion filed on ___________ by prevents entry of default. (Code Civ. Proc., § 585) o 2. Attorney of Record/Address on file Is different. Submit a Substitution of Attorney/Change of Address) Association of Attorney. o 3. Filing date of OComptaint Odross-Complaint Is omitted. (Item I a) U 4. The name of the party requesting the entry of default is omitted. (Item ib) El 5. Name(S) of Ddefendant(s) Dcross-defendant(s) do not match the complaint. o 6. Code Civ. Proc., section 585.5, Declaration Is Incomplete. (Item 5) o 7. []Date []printed name Osignature of plaintiff [Jattomey of record Odeclarant required on Item 0/8. The defendants to whom the Request for Entry of Defau!twas not mailed are not listed. (Item 6a) / ] 9. The Declaration of mailing does not have the separate.adci of each defendant/attorney of record. (Code Civ. Prom, § 581) (Item 6b) o 10. Request for Entry of Default Is premature. Default may be entered no sooner than_____________________ O 11. Declaration of Non-Military Status Is not completed. (Item 8) E] 12. Default already entered astO El 13. Other Proof of Service of Summons and Complaint (Judicial Council form POS-010) 0 14. The original Proof of Service has not been filed. (Code Clv. Proc., § 417.30) o 15. The Proof of Service Is Incomplete. (Item o 16. A separate Proof of Service is required for each defendant. O 17. Name of defendant on Proof of Service does not match the name of the defendant on the complaint. El 18. The name and title of person served are not identified. (Code Civ. Proc.. § 418.10) (Item j o 19. The Proof of Service Is Incomplete as to Dthe date (month/day/year) Dtirne (hour/AM-PM) Ocomplete Street address, city and state where service was performed. Specify Ohorne Obusiness. (Item o 20. There is no proof of mailing for substitute service with date (month/day/year), place of mailing, address (street address, city and state). (Code Clv. Proc., § 415.20) (Item - El 21. The manner of service has not been completed. (Code Civ. Proc., § 417.10) (Item 5) LACIV 098 (Rev. 09/08) NOTICE OF REJECTION - LASC Approved 09-04 DEFAULT I CLERK’S JUDGMENT Page 1 of 2 EXHIBIT A - PAGE 000052 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 53 of 106 Page ID #:55
  • 54. Wort Title Case Number 0 22. The original signed Acknowledgment of Receipt has not been filed. (Code Civ. Proc., § 415.30) 23. Notice to Person Served on the Proof of Service Is incomplete/In error. o 24. The Dstatus Dname Daddress []telephone number of the person performing the service is incomplete. (Item 7) O 25. DOrigirial signature of process server Ddate Is missing. Ci 26. Declaration of Diligence for substitute service Drequired Ddate missing Doriglnal signature required. 27. Proof of Service by Publication has not been flied. (Code Clv. Proc., § 415.50 nd Gov. Code, § 6064). fl 28. A statement of damages, with proof of service has not been riled. (Code Civ. Proc., § 425.11) O 29. Please use the current Judicial Council form POS-010. Proof of Service of Summons, Adopted for Mandatory Use. O 30. Other. Request for Entry of Clerk’s Judgment 0 31. Submit Military Affidavits for the following defendants: O 32. The Military Affidavit has expired. The Clerk does not accept a Military Affidavit(s) that Is/are more than 90 days old. O 33. The Clerk requires a waiver of attorney fees. o 34. Defendant(s) and/or Doe(s): have not been disposed of either by default or dismissal. (Code Civ. Proc., § 579) o 35. The judgment may not be greater than the amount in the prayer in the complaint o 36. Submit the original promissory note(s) or contract(s). if original Is not available, submit a Declaration of Lost Original. (Cal. Rules of Court. rule 3.1806) o 37. A declaration, Including a copy of the Notice of intent to File In Superior Court, which was mailed to defendant, to receive costs with a judgment of $7,500 or less. Is required. (Code Civ. Proc., § 1033) C] 38. A corporation must be represented by an attorney. o 39. Other Please return: Ma new Request for Entry of Default form. El additional document(s) required to process your request. When you respond to this Notice of Rejection, Include a stamped, sell-addressed return envelope, DO NOT include more then one copy of any document to be conformed. Inc/udo a copy of this form when you return your documents. JOHN A. CLARKE, Executive Officer! Clerk Cl Dated: 6-17-13 e LACIV 098 (Rev. 09108) LASC Approved 09-04 By: S. WONG Deputy Clerk NOTICE OF REJECTION - DEFAULT I CLERK’S JUDGMENT Page 2 of 2 EXHIBIT A - PAGE 000053 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 54 of 106 Page ID #:56
  • 55. EXHIBIT A - PAGE 000054 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 55 of 106 Page ID #:57
  • 56. 0-11 - =01, ~ , dy-lao --N FORCOURTUSEONLY one Elfassi, Esq. II 261243 ~~MIFRin SIMON RESNIK HAYES. LLP 15233 Ventura Blvd., Suite 250 Sherman Oaks, CA 91403 TELEPHONE NO.: (818)783-6251 FAX NO! (OpI,OI) ( ) ! MAL ADDRESS (Optkxiel): corinne@srhlawfirm.com FATTORNEY FOR (Nne Plaintiff SUP RI OR C6URTOFCALlRN COLI7YOF LOSANGLSUPERIOR COURT OF CALIFORNIA, COUNTY OF Los Angeles STREETADORESS: Ill North Hill Street UN 11 O13MAILING ADORESS: Ill North Hill Street CITYANOZJPCQOE. Los Angeles, 90012 BRANCH RAW Stanley Mosk Courthouse John A. BY_4 Deputy PLAINI1FF/PETfflONER: DAWN YOIJNANI p DEFENDANT(RESPONDENT: NEW ENGLAND COMPOUNDING PHARMACY, INC.. ETA ; REQUEST FOR iI1 Entry of Default LIJ Clerk’s Judgment NUMBER (Application) LII BC5OS 176 Court Judgment TO THE CLEjK: On the complaint or cross-complaint filed a. on (date)fh04/08/20 13 b. by (narne)(t3g Younani c.LZIJ Enter default of defendant (namesxew England Compounding Pharmacy. Inc. dba New England Compounding Atcr 09 WA d. = I request a court judgment under Code of Civil Procedure sections 585(b), 585(c). 989, etc., against defendanf (names): (Testimony required. Apply to the clerk for a hearing date, unless the court will enter a judgment on an affidavit under Code Civ. Proc., § 585(d).) e. Enter clerk’s judgment (1)CI] for restitution of the premises only and issue a writ of execution on the judgment. Code of Civil Procedure section 1174(c) does not apply. (Code Civ. Proc., § 1169.) LII Include in the judgment all tenants, subtenants, named claimants, and other occupants of the premises. The Prejudgment Claim of Right to Possession was served in compliance with Code of Civil Procedure section 415.46. (2)[I] under Code of Civil Procedure section 585(a). (Complete the declaration under Code Civ. Proc.. § 585.5 on the reverse (item 5).) (3)LJ for default previously entered on (date): 2. Judgment to be entered. Amount Credits acknowledged Balance a. Demand of complaint ............$ $ $ 0.00 b. Statement of damages * (1) Special ....................$ 1,500,000 $ $ 1,500,000.00 (2) General .................... $ 2,000,000 $ $ 2,000,000.00 c. Interest .......................$ $ $ 0.00 d. Costs (see reverse) ..............$ 535.00 $ $ 535.00 e. Attorney fees ...................$ $ $ 0.00 f. TOTALS ......................$ 3,500,535.00 $ 0.00 $ 3,500.535.00 g. Daily damages were demanded in complaint at the rate of: $ per day beginning (date): ( Personal injury or wrongful death actions; Code Civ. Proc.. § 425.11.) 3. Cii] (Check if filed in an unlawful detainer case) Legal document assistant or unlawful detain assistant information is on the reverse (complete item 4). Date: .06/ 10/13 1 I Corinne Elfassi, Esq. ’ _____________________________ (fl’PE OR PRINT NAME) (SIG RE Of PLAINTIFF OR ATTOR NEY FOR PLAINTIFF) Default entered as requested on (date): 1 Default NOT entered as requested (state reason): I COURT sa4t. i USE ONLY Clerk, by -, Deputy- 4 Pg. I 01 2 Form Adopted for MardalM U38 REQUEST FOR ENTRY OF DEFAULT JbcCMtria §5A5587 1160 crv.IoOpev. .iay I, oj (Application to Enter Default) EXHIBIT A - PAGE 000055 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 56 of 106 Page ID #:58
  • 57. PLAJN11FFIPE1TflONER: Dawn Younani CASE NUIARER - DEFENDANT/RESPONDENT: New England Compounding Pharmacy, Inc., et a BC505 176 4. Legal document assistant or unlawful detainer assistant (Bu’ s. & Prdf, Code, § 6400 et seq.). A legal document assistant or unlawful detairier assistant = did [Is] did not for compensation give advice or assistance with this form. (If declarant has received any help or advice for pay from a legal document assistant or unlawful detainer assistant, state): a. Assistant’s name: c. Telephone no.: b. Street address city, and zip code: d. County of registration: e. Registration no.: 1. Expires on (date): 5. EJ Declaration under Code of Civil Procedure Section 585.5 (required for entry of default under Code Civ. Proc., § 585(a)). This action a. [TI is [i1 is not on a contract or installment sale for goods or services subject to Civ. Code, § 1801 et seq. (Unruh Act). b. is lIZ] is not on a conditional sales contract subject to Civ. Code, § 2981 et seq. (Rees-Levering Motor Vehicle Sales and Finance Act). c. [1T] is [IJ is not on an obligation for goods, services, loans, or extensions of credit subject to Code Civ. Proc., § 395(b). 6 Declaration of mailing (Code Civ. Proc., § 587). A copy of this Request for Entry of Default was a. [I] not mailed to the following defendants, whose addresses are unknown to plaintiff or plaintiffs attorney (names): b. [j] mailed first-class, postage prepaid, in a sealed envelope addressed to eacVdefendants attorney of record or, if none, to each defendant’s last known address as follows: (1) Mailed on (date): ’0’6/1 01201 3 (2) To (specify names and addresses shown on the envelopes): LieffCabraser Ueinrnann Bernstein 150 Fourth Avenue N, Suite 1650 Nashville, TN 37219 $ declare under penalty of perjury under the laws of the State of California that the foregoing items 4,4, and 6 are true and correct. Date: 06110/2013 (1 Corinne Elfassi, Esq. (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) 7. Memorandum of costs (required if money judgment requested). Costs and disbursements are as follows (Code Civ. Proc., § 1033.5): a. Clerk’s filing fees ..................... 435.00 b. Process server’s fees ................. $ 100.00 C. Other (specify): d. $ e. iAL . ...........................$ 535.00 f. LII Costs and disbursements are waived. g. I am the attorney, agent, or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case. I declare under penalty of perjury under the laws of the State of California that the foregoing is true anda L*. ect Date:0611012013 () Corinne Elfassi, Esg. (TYPE OR PRINT NAME) (SIGNATURE OI DECI-ARANT) 8. Declaration of nonmilitary status (required for a judgment). No defendant named in item ic of the application is in the military service so as to be entitled to the benefits of the Servicemembers Civil Relief Act (50 U.S.C. App. § 501 et seq.). I declare under penalty of perjury under the laws of the State of California that the foregoing is true anorrect. ’date:06/10/2013 II orinne Elfassi, Esc. &,UA..(TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) Cv.1)(Rov Jy 1.20071 REQUEST FOR ENTRY OF DEFAULT (Application to Enter Default) EXHIBIT A - PAGE 000056 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 57 of 106 Page ID #:59
  • 58. EXHIBIT A - PAGE 000057 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 58 of 106 Page ID #:60
  • 59. CIV4IO ATTORNEY OR PARTY WI dQUT/ - Cbrinne El assi, Esq, 1/261243 . SIMON RESNIK HAYES, LLP 15233 Ventura Blvd., Suite 250, Sherman Oaks, CA 91403 TELEPHONE NO. (81 8)783625 I FAX ND (0pIioiv1), ( ) E-MAIL ADDRESS (Qp!iOnCt)L corinne@srh Iawfirm .com ATTORNEY FOR (Name): Plaintiff SUPERIOR COURT OF CALIFORNIA, COUNT? OF Los Angeles STItEETADORESS: 111 North f-lilt Street MAILING ADDRESS: I 1 1 North Hill Street CITY AND zip CODE : Los Angeles, 90012 WtANcFt NAME: Stan 1ev Mctsk Cot irthcmse PLAINTIFF/PETITIONER: DAWN YOUNAN I OEFENDAN17RESPONDENT: NEW ENGLAND COMPOUNDING P1 IARMACY. INC.. El Al. REQUEST FOR DISMISSAL FOR COURT USE ONL V CASE NUMBER: BC5OS 176 A conformed copy will not be returned by the clerk unless a method of return is provided with the document. This form may not be used for dismissal of a derivative action or a class action or of any party or cause of action in a class action. (Cal. Rules of Court, rules 3.760 and 3.770.) 1 10 THE CLERK: Please dismiss this action as follows: a (1) LJ With prejudice (2) Without prejudice b- (1)J Complaint (2) c:i Petition (3) Cross-complaint filed by (name): on (dale): (4) Cross-complaint filed by (name): on (dale): (5) Entire action of all parties and all causes of action (6)= Other (specify):* As to Defendant, THE ENCINO OUTPATIENT SURGERY CENTER, INC., Only. 2 (Complete in all cases except family law cases.) The court = did J did not waive court fees and costs for a party in this case (This informal/on may be obtained from the clerk. If court fees and costs wore waived, the declaration on the back of (hi 5,Vm mu-st b omple fed), Date:7/16/2013 p1311 .E1Cissi, .Fs.q......................... (TYPE OR PRINT NAME OF ATTORNEY = PARTY WITHOUT ATTORNEY) (SIGNATURE) 1f dismissal requested Is of specified parties only of specified causes of action Attorney or party without attorney for: only, or of specified cross-complaints only so state and identify the parties. [] Plaintiff/Petitioner [J Defendant/Respondentcauses of action. or cross-oomplaints to W dismissed 1E1 Cross-Complainant 3 TO THE CLERK: Consent to the above dismissal is hereby given (TYPE OR PRINT NAME OF [] ATTORNEY = PARTY WITHOUT ATTORNEY) (SIGNATURE) if a cross-complaint or Response (Family Law) seeking affirmative Attorney or party without attorney for: relief Is on file, the allomey for cross-complainant (respondent) must sign this consent if required by Code of Civil Procedure section 551 (I) J Plaintiff/Petitioner J Defendant/Respondent cr(i). L Cross-compainant (To be completed by cleric) 4 = Dismissal entered as requested on (dale): 5 J Dismissal entered on (date): as to only (name): 6 Dismissal not entered as requested for the following reasons (specify): 7 a EJ Attorney or party without attorney notified on (date): b Attorney or party without attorney not notified Filing party failed to provide a copy to be conformed = means to return conformed copy Date: Clerk, by Deputy Page I 012 Penn Adopted for Mandatory Use ,o. Code of Civil PIOSOIILITO § Gill ci ueq Judicial Couccil of California REQUE , FOR DISMISSAL Gov Coda, § 6e63 7(c): Col. Rules of Court. 11110 31350 CIV.I 10 (Ftov Jea. 1 20131 miw caurtscu jor EXHIBIT A - PAGE 000058 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 59 of 106 Page ID #:61
  • 60. dy-ho YOUNANI DEFENDANT/RESPONDENT:NFW ENGLAND COMPOUNDING PHARMACY. INC. ir ABC505176 COURT’S RECOVERY OF WAIVED COURT FEES AND COSTS If a party whose court fees and costs were initialy waived has recovered or will recover $10000 or more in value by way of settlement, compromise, arbitration award, mediation settlement, or other means, the court has a statutory lien on that recovery The court may refuse to dismiss the case until the lion is satisfied (Gov Code § 68637) Declaration Concerning Waived Court Fees 1 The court waived court fees and costs in this action for (name): 2 The person named in item 1 is (check one below): a not recovering anything of vauc by this action b recovering less than $10000 in value by this action C recovering $10,000 or more in value by this action (If item 2c is checked, item 3 must be completed.) 3 = All court fees and court costs that were waived in this action have been paid to the court (check one): = Yes = No I declare under penalty of perjury under the laws of the State of Ca ifornia that the information above is true and correct Date: (ryPa on PRINT NAME OF LJ Pr10nNEvf J PARTYMARINCOECLARAT!ON) (SIGNATURE; CIv-110(R J,rjr I, 203 1 REQUEST FOR DISMISSAL Pap 2 of EXHIBIT A - PAGE 000059 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 60 of 106 Page ID #:62
  • 61. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (California Code of Civil Procedure, §1013a, 2015.5) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES: I am a resident of the county aforesaid; I am over the age of eighteen years and not a party to the within entitled action; my business address is 15233 Ventura Blvd., Suite 250, Sherman Oaks, CA 91403. I am readily familiar with the business practices at my place of business for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the regular course of business. On July 16, 2013, I served the within REQUEST FOR DISMISSAL on the interested parties in said action. [xxx] By placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sherman Oaks, California, addressed as follows: Jack R. Reinholtz, Esq. Cynthia A. Palm, Esq. Prindte, Amaro, Goetz, Hillyard, Barnes & Reinholtz 310 Golden Shore, 4" Floor Long Beach, CA 90802 Frederick Fern, Esq. Harris Beach, LLP 100 Wall Street New York, NY 10005 [ J I caused such envelope to be transmitted by facsimile and placed in an envelope with postage thereon fully prepaid in the United States rhail at Los Angeles, California addressed as follows: [ I I caused such envelope to be delivered by hand to the offices of the addresses as follows: I declare, under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 16, 2013, at Sherman Oaks, California. Corinne Elfassi omfifis is #011-’F (Print Name) (Sign PROOF OF SERVICE EXHIBIT A - PAGE 000060 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 61 of 106 Page ID #:63
  • 62. EXHIBIT B Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 62 of 106 Page ID #:64
  • 63. Case MDL No. 2419 Document 119 Filed 02/12/13 Page 1 of 3 UNITED STATES JUDICIAL PANEL on MULTIDISTRICT LITIGATION IN RE: NEW ENGLAND COMPOUNDING PHARMACY, INC., PRODUCTS LIABILITY LITIGATION MDL No. 2419 TRANSFER ORDER Before the Panel: Pursuant to 28 U.S.C. § 1407, plaintiffs in anEastern District of Michigan action move for centralization of this litigation in the District of Minnesota. This litigation currently consists of four actions pending in two districts, as listed on Schedule A. Since the filing of the motion, the parties have notified the Panel of over 120 related actions pending in various federal districts. All parties support centralization under Section 1407, but disagree on an appropriate choice for transferee district. Plaintiffs in the four actions on the motion and over 30 potential tag-along actions support centralization in the District of Minnesota. Defendant New England Compounding Pharmacy, the responding co-defendants in over 40 potential tag-along actions,’ plaintiffs in five potential tag-along actions, and an interested party from the related bankruptcy case’ request the District of Massachusetts. 4 On the basis of the papers filed and the hearing session held, we find that these actions involve common questions of fact, and that centralization under Section 1407 in the District of Massachusetts will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions share factual questions relating to injuries arising from the alleged contamination of the injectable steroid methyl-predniso lone acetate at the New England Compounding Pharmacy facility in Framingham, Massachusetts, which allegedly resulted in a multistate outbreak ofhundreds of cases of fungal meningitis and other infections. Centralization will These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h), 7.1 and 7.2. Some of the parties have presented arguments concerning the potential tag-along actions in the current briefing. The parties, however, will have an opportunity to express their views on transfer of potential tag-along actions to MDL No. 2419, as provided for under Panel Rule 7.1. 2 The responding co-defendants are Ameridose LLC, Medical Sales Management, Inc., Barry Cadden, Gregory Conigliaro, Lisa Conigliaro Cadden, Douglas Conigliaro, Carla Conigliaro, and Glenn Chin. The interested party is the Official Committee of Unsecured Creditors. ’ In the alternative, defendant proposes the Eastern District of Michigan. EXHIBIT B - PAGE 000061 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 63 of 106 Page ID #:65
  • 64. Case MDL No. 2419 Document 119 Filed 02/12/13 Page 2 of 3 -2- eliminate duplicative discovery; prevent inconsistent pretrial rulings, especially with respect to class certification and discovery issues; and conserve the resources of the parties, their counsel and the judiciary. We conclude that the District of Massachusetts is an appropriate transferee district. The principal events giving rise to the alleged claims occurred in Massachusetts, the facility at which the contamination allegedly occurred is located there, and the federal and state investigations into New England Compounding Pharmacy are focused there. Thus, the primary witnesses, physical evidence, and documentary evidence likely will be located in Massachusetts. Additionally, defendant is headquartered in Massachusetts, and defendant’s bankruptcy case is pending in this district. The Honorable F. Dennis Saylor IV, to whom we assign this litigation, is an experienced transferee judge who is already familiar with the contours of; and has taken preliminary steps to organize, the litigation. We are confident he will steer this litigation on a prudent course. IT IS THEREFORE ORDERED that pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A and pending outside the District of Massachusetts are transferred to the District of Massachusetts and, with the consent of that court, assigned to the Honorable F. Dennis Saylor IV for coordinated or consolidated pretrial proceedings. IT IS FURTHER ORDERED that defendant’s request to modify the caption of MDL No. 2419 is denied. PANEL ON MULTIDISTRICT LITIGATION 1 1-0 " JohnG.Heyburnll Chairman Kathryn H. Vratil W. Royal Furgeson, Jr. Paul J. Barbadoro Marjorie 0. Rendell Charles R. Breyer Lewis A. Kaplan EXHIBIT B - PAGE 000062 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 64 of 106 Page ID #:66
  • 65. Case MDL No. 2419 Document 119 Filed 02/12/13 Page 3 of 3 IN RE: NEW ENGLAND COMPOUNDING PHARMACY, INC., PRODUCTS LIABILITY LITIGATION MDL No. 2419 SCHEDULE A Eastern District of Michigan Brenda Bansale, et al. v. New England Compounding Pharmacy, Inc., C.A. No. 2:12-14559 Lyn Laperriere, et al. v. New England Compounding Pharmacy, Inc., C.A. No. 2:12-14581 District of Minnesota Barbe Puro v. New England Compounding Pharmacy, Inc., C.A. No. 0:12-02605 Rosalinda Edwards v. New England Compounding Pharmacy, Inc., C.A. No. 0:12-02625 EXHIBIT B - PAGE 000063 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 65 of 106 Page ID #:67
  • 66. EXHIBIT C Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 66 of 106 Page ID #:68
  • 67. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 1 of 33 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS IN RE: NEW ENGLAND MDL No. 1:13-md-2419-FDS COMPOUNDING PHARMACY, INC. PRODUCTS LIABILITY LITIGATION This Document Relates To: All Cases MEMORANDUM AND ORDER ON TRUSTEE’S MOTION TO TRANSFER CASES AND RELATED MOTIONS SAYLOR, J. I. Introduction This litigation involves claims for wrongful death and personal injury arising out of the administration of an injectable steroid, methy 1predniso lone acetate ("MPA"), manufactured by defendant New England Compounding Pharmacy, Inc. ("NECC"). The complaints allege, in substance, that NECC produced contaminated MPA that led to serious fungal infections and, in some instances, death. As of May 6, 2013, the Centers for Disease Control and Prevention had reported 53 deaths and 733 incidents of fungal infection across 20 states related to injections of contaminated MPA manufactured by NECC since October 2012. Lawsuits alleging death or injury based on contaminated MPA have been filed in multiple federal and state jurisdictions around the country, including the District of Massachusetts, beginning in November 2012. In February 2013, the Judicial Panel on EXHIBIT C - PAGE 000064 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 67 of 106 Page ID #:69
  • 68. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 2 of 33 Multidistrict Litigation ("JPML") issued an order under 28 U.S.C. § 1407 transferring various federal-court proceedings to this Court for coordinated and consolidated pretrial proceedings. Subsequent orders of the JPML have transferred other "tag-along" cases to this Court. The matters transferred to this Court typically name additional defendants other than NECC, including certain of its officers and shareholders and certain affiliated corporations. In the meantime, NECC filed for bankruptcy protection in December 2012. A United States Trustee, Paul Moore, was subsequently appointed to administer the bankruptcy estate. There are likely to be a large number of victim-claimants in this matter, and it appears undisputed that many of them have suffered death or serious personal injury as a result of the administration of contaminated MPA. It also appears to be undisputed that the pool of available assets to pay claims is likely to be limited; NECC was a fairly small company with relatively few assets, although it appears that there are at least some insurance policies available to cover claims. The trustee, and counsel representing parties in this litigation, essentially agree that it is highly desirable to maximize the resources available to victims and to keep expenditures reasonably low. The trustee, and most counsel, also appear to agree that centralized management of the litigation and claim process is desirable to create the largest possible pool of funds for victims and to distribute those funds fairly, equitably, and with a minimum of expense and delay. The trustee has moved to transfer all personal injury and wrongful death cases, wherever filed, to this Court, in order to facilitate that process and achieve that desirable end. The trustee thus seeks the transfer not only of all federal cases, but of all related state cases, regardless of the identity of the defendants. In substance, the trustee contends that this Court can 2 EXHIBIT C - PAGE 000065 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 68 of 106 Page ID #:70
  • 69. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 3 of 33 exercise "related-to" jurisdiction over all such matters under 28 U.S.C. §§ 1334 and 157(b), and should transfer the matters to this District. Consolidation of all NECC litigation in this Court is greatly complicated by the existence of the parallel state-court cases. Some of those cases, particularly those filed after the bankruptcy petition and the automatic stay, name only local healthcare providers (such as pain clinics and individual physicians), and do not name NECC or any affiliates. Some of those plaintiffs object to a centralized proceeding, preferring instead to proceed against those defendants in state court. The trustee, however, contends that those cases could ultimately result in huge claims for contribution or indemnity against the bankruptcy estate, and that such claims could greatly affect or upset the fair administration of the estate, in particular preventing the treatment of all victims fairly and equitably. Whether, and to what extent, this Court has the power to exercise jurisdiction over state- court litigation, and to transfer it to this District, raises complex and difficult issues of jurisdiction, abstention, and federal-state comity. After careful consideration, and for the reasons set forth below, the trustee’s motion to transfer personal injury tort and wrongful death cases will be granted in part and denied in part without prejudice to its renewal. In substance, the Court will assert jurisdiction over, and transfer, all federal cases against NECC and its affiliates, and all state-court cases against NECC and its affiliates, including cases where the claims are third-party claims for contribution or indemnity. The Court will not, however, transfer any state-court cases at this time that do not involve claims against NECC or its affiliates. Any related motions, such as motions to remand or for mandatory abstention, will be treated in a consistent fashion. EXHIBIT C - PAGE 000066 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 69 of 106 Page ID #:71
  • 70. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 4 of 33 II. Background NECC operated a compounding pharmacy in Framingham, Massachusetts, that combined and mixed ingredients to create specific formulations of pharmaceutical products. NECC was owned and operated by a small group of officers and directors, many of whom were related. NECC is affiliated with a number of other companies; it is unclear what, if any, role those entities played in the events underlying this litigation.’ In fall 2012, health officials traced a number of cases of fungal meningitis to injections in and around the patients’ spinal cords (known as intrathecal administration) of MPA that had been manufactured by NECC. In response, NECC initiated a recall of several contaminated batches of MPA. As the scope of the problem became evident, NECC eventually surrendered its pharmacy license and ceased production of all pharmaceutical products. The first complaint against NECC in this Court alleging personal injury from contaminated MPA was filed on November 2, 2012. The complaint names NECC, two affiliated entities, and various individual officers as defendants. In the ensuing months, similar cases were filed in this District, other federal districts, and in various state courts. Most of those cases name NECC, and affiliated entities or individuals, as defendants. Some, however, name only the healthcare providers who actually distributed or administered the MPA. On December 21, 2012, NECC filed a petition under chapter 11 of the bankruptcy code. Among other things, that triggered an automatic stay of proceedings against NECC pursuant to 1 The individuals who have been named in cases before this Court due to their positions within NECC or affiliated entities include Barry J. Cadden, Lisa Conigliaro Cadden, Gregory Conigliaro, Douglas Conigliaro, Carla Conigliaro, and Glenn A. Chin. As of the date of this order, the following entities have been alleged to be affiliated with NECC in cases before this Court: Ameridose, LLC; Medical Sales Management, Inc.; Alaunus Pharmaceutical, LLC; GDC Properties Management, LLC; GDC Holdings, Inc.; and ARL BioPharma, Inc. EXHIBIT C - PAGE 000067 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 70 of 106 Page ID #:72
  • 71. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 5 of 33 11 U.S.C. § 362(a). Although filed as a chapter 11 petition, there is little, if any, likelihood that the company will resume operations. As noted, the company appears to have relatively limited assets, other than insurance policies. The company also, however, has no significant secured creditors. On February 12, 2013, the JPML created an MDL proceeding and transferred all actions pending in federal court against NECC to this district for coordinated pretrial proceedings before this Court. The JPML has since transferred multiple "tag-along" actions to this Court. After the bankruptcy filing, certain plaintiffs filed state-court actions that did not name NECC as a defendant, presumably in order to avoid the operation of the automatic stay.’ Of particular note are 17 Virginia cases where a Virginia healthcare provider is now the sole defendant. See, e. g., Wingate v. Insight Health Corp., 2013 U. S. Dist. LEXIS 67358 (W.D. Va. May 10, 2013). After the defendant in those actions attempted to have the cases removed to federal court, on May 10, 2013, Judge Wilson of the United States District Court for the Western District of Virginia remanded the cases to state court. See id. As the schedules attached to the trustee’s motion acknowledge, there are now four different categories of cases based on personal injuries resulting from the administration of tainted MPA that are not yet before this Court as part of the MDL: (1) cases pending in other federal courts that have not yet been transferred here; (2) cases pending in state courts where removal is in process; (3) cases pending in state courts that name NECC or affiliated entities as defendants; and (4) cases pending in state courts that do not name NECC or affiliated entities as 2 Other state-court plaintiffs dismissed their claims against NECC after the bankruptcy filing. 5 EXHIBIT C - PAGE 000068 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 71 of 106 Page ID #:73
  • 72. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 6 of 33 defendants.’ The trustee’s motion asks the Court to assert jurisdiction over cases in all four categories, whether or not the non-NECC-affiliated defendants have made claims for contribution or indemnity from NECC. The Plaintiffs’ Steering Committee ("PSC") appointed by the Court in the MDL proceeding agrees as to the first three categories of cases, but requests that the Court abstain from exercising jurisdiction over what it refers to as a "narrow subset" of cases in the fourth categorypending state-court cases that do not name NECC or affiliated entities as defendants"where the sole articulated basis for ’related to’ jurisdiction is a potentialbut as yet unassertedindemnification or contribution claims against NECP." A small number of such state-court plaintiffs have filed oppositions to the trustee’s motion, as well as their own motions requesting the Court to abstain from exercising jurisdiction over their cases.4 III. Analysis The difficulties presented by the trustee’s motion are significant and implicate a wide range of concerns. Unfortunately, no solution can equally address all of these concerns, and each comes with its own troublesome set of questions. If the Court were to decline to assert jurisdiction over the state-court cases, it might make Which court has jurisdiction over a case in which removal has not yet been perfected is not entirely settled. Pursuant to 28 U.S.C. 1446(d) removal is effected after the defendant takes three procedural steps: (1) filing a notice of removal in federal court, (2) filing notice of removal in state court, and (3) giving prompt written notice to all adverse parties. See 14C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3736 (4th ed. 2009). Some courts have held that after notice has been filed with the federal court, but before notice has been filed with the state court, both courts retain concurrent jurisdiction over the case until such notice is filed. Resolution Trust Corp. v. Nernberg, 3 F.3d 62, 69 (3d Cir. 1993) ("The requirement of notice to the state court is an important part of the removal process and has been held necessary to terminate the state court’s jurisdiction.") (citing Stephens v. Portal Boat Co., 781 F.2d 481, 482 n.1 (5th Cir. 1986)). "See, e.g., Opposition filed by Roanoke Area Lichtenstein Fishwick Intervenors (Virginia); Opposition filed by Tracy Maccoux (Minnesota); Opposition filed by Chance Baker, Patrick Johnston, Ferman Wertz (Virginia); Opposition filed by Roanoke Gentry Locke Plaintiffs (Virginia); Roanoke Gentry Locke Plaintiffs’ Motion for Mandatory Abstention. EXHIBIT C - PAGE 000069 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 72 of 106 Page ID #:74
  • 73. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 7 of 33 it difficult or impossible to resolve the entire litigation in an equitable or efficient manner. Any cases that remain pending in state court could ultimately result in large judgments and corresponding claims for contribution or indemnity against the estate of NECC. Pursuant to the bankruptcy code, such claims would normally have to be considered on equal footing with the claims of injured plaintiffs against the estate as claims of unsecured creditors. Because all unsecured creditors are normally paid paripassu(that is, proportionally and without preference) based on the amount of their claims, even one large contribution or indemnity claim against the estate could greatly diminish, or virtually eliminate, the amount available to be paid to the remaining claimants. See 11 U.S.C. § 1123(a)(4) (any reorganization plan must "provide the same treatment of each claim or interest of a particular class, unless the holder of a particular claim or interest agrees to a less favorable treatment of such particular claim or interest"); In re Combustion Engineering, Inc., 391 F.3d 190, 239-42 (3d Cir. 2004) (reversing confirmation of a plan of reorganization which provided for disparate treatment of subcategories of personal injury claims); In re Congoleum Corp., 2010 U.S. Dist. LEXIS 72431, 12-13 (D.N.J. July 19, 20 10) (affirming bankruptcy court’s finding that prejudgment personal injury claimants and breach of contract claimants were similarly situated and therefore must receive similar treatment under a plan of reorganization). In addition, the threat of contingent contribution or indemnity claims becoming fixed after judgment or settlement of the MDL plaintiffs’ claims would likely require the plan of reorganization to reserve specific funds. See 11 U.S.C. § 502(e) and (j). Furthermore, allowing some state-court cases to proceed without consolidation in the MDL creates the possibility of inconsistent rulings or judgments on factual or scientific issues that may greatly complicate the resolution of these matters. And litigation in multiple courts also 7 EXHIBIT C - PAGE 000070 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 73 of 106 Page ID #:75
  • 74. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 8 of 33 threatens to impose significant discovery burdens, as discovery from many of the same people and entities may be sought on multiple occasions. If, however, the Court were to assert jurisdiction over all the cases listed by the trusteeincluding state-court cases where no claims against NECC or its affiliates have yet been assertedit would have to do so based on a very broad reading of federal subject-matter jurisdiction. As will be discussed, the boundaries of that jurisdiction are very far from clear, and it is therefore uncertain whether the Court even has the authority to act. Even if subject-matter jurisdiction exists, the Court must then consider issues of both mandatory and discretionary abstention. And assuming those hurdles are overcome, in order to effect a transfer of state cases, the Court might be required to enjoin state-court proceedingsa highly disfavored judicial remedy, the use of which is explicitly restricted by the Anti-Injunction Act, 28 U.S.C. §.2283. Under the circumstances, the Court has concluded that a somewhat cautious approach is appropriate. In substance, the Court will grant the motion to transfer (1) any case pending in federal court against NECC or any affiliated entity or individual, (2) any such case that is in the process of removal to federal court, and (3) any case pending in any state court in which a party has made a claim against NECC or any affiliated entity or individual, including third-party claims for contribution or indemnity. However, as to state-court proceedings not naming NECC or any affiliated entity or individual, the motion will be denied without prejudice to its renewal. A. Cases Against NECC Affiliates Only The Court must first determine whether it has subject-matter jurisdiction over cases filed by plaintiffs against NECC affiliates but not against NECC. As noted, such cases are pending in EXHIBIT C - PAGE 000071 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 74 of 106 Page ID #:76
  • 75. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 9 of 33 both federal and state courts. According to the trustee, NECC has express contractual indemnification obligations to many of the affiliated defendants, including, but not limited to, Barry Cadden, Greg Conigliaro, Lisa Conigliaro, Carla Conigliaro, Glenn Chin, GDC, and MSM. The individual defendants are also additional insureds under at least one of NECC’s insurance policies. The trustee contends that cases against affiliated entities and individuals are subject to the Court’s bankruptcy jurisdiction under 28 U.S.C. § 1334. Section 1334 provides district courts with original, but not exclusive, jurisdiction over "all civil proceedings arising under title 11, or arising in or related to cases under title 11." 28 U.S.C. § 1334 (emphasis added). As discussed below, courts have held that related-to jurisdiction exists over cases against non-debtor defendants whom the debtor has an automatic obligation to indemnify or defend. See, e.g., Cambridge Place Inv. Mgmt, v. Morgan Stanley & Co., 2010 U.S. Dist. LEXIS 142954 (D. Mass. 2010); City of Ann Arbor Empis. Ret. Sys. v. Citigroup Mortg. Loan Trust Inc., 572 F. Supp. 2d 314 (E.D.N.Y. 2008); In Re Brentano ’s, Inc., 27 Bankr. 90 (S.D.N.Y. 1983). The trustee has asserted (and no party has disputed) that NECC owes such an obligation to the affiliated entities and individual defendants. Indeed, no party appears to dispute the Court’s power to assert subject-matter jurisdiction over cases naming any NECC-affiliated entity or individual as a defendant. Accordingly, the Court has subject-matter jurisdiction over any cases pending in federal or state court against entities or individuals affiliated with NECC, whether or not NECC is named as a defendant. EXHIBIT C - PAGE 000072 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 75 of 106 Page ID #:77
  • 76. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 10 of 33 B. Motion to Transfer - Federal Cases The potential transfer of eases presently pending in other federal courts, and those now pending in state courts where removal is in process, does not appear to present any significant jurisdictional or venue-related issues. Indeed, no party has opposed the transfer of these categories of cases, and the JPML’s initial transfer order establishing the MDL specifically contemplates the transfer of such "tag-along" actions pending in various district courts. Since the date of the initial transfer order, the JPML has transferred to this Court more than 100 "tag-along" cases that had been pending in other federal district courts. The Court has no reason to believe that any federal cases that are the subject of the trustee’s transfer motion will not receive similar treatment from the JPMIL and be transferred to this Court in due course. However, should the situation arise that a case pending in federal court, over which this Court could properly exercise related-to jurisdiction, is not transferred by an order of the IPML, this Court will presumably act to assert jurisdiction over it. Until the Court is made aware of such a situation, it will simply await the JPML’s transfer orders for any eases now pending in other federal courts or that are in the process of being removed. C. Motion to Transfer - State Cases The more difficult set of issues concerns the potential transfer of the state-court cases in which no NECC affiliate is named as a defendant, or in which an NECC affiliate is named only as a third-party defendant in a claim for contribution or indemnity. Subject-Matter Jurisdiction The Court must first determine whether it has subject-matter jurisdiction over the cases that the trustee seeks to have transferred here. If the Court lacks subject-matter jurisdiction over 10 EXHIBIT C - PAGE 000073 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 76 of 106 Page ID #:78
  • 77. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 11 of 33 any case, it cannot constitutionally adjudicate that case, regardless of the practical considerations or efficiency benefits. a. 28 U.S.C. § 157(b)(5) The trustee has cited 28 U.S.C. § 157(b)(5) as the primary basis for the authority to transfer the state-court personal injury and wrongful death actions to this Court. Section 157(b)(5) provides as follows: The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending. 28 U.S.C. § 157(b)(5). The trustee’s reliance on this provision as the basis for subject-matter jurisdiction is misguided. The Supreme Court recently held that " 157(b)(5) is not jurisdictional," but rather a venue provision. See Stern v. Marshall, 131 S. Ct. 2594, 2606 (2011). In reaching that conclusion, the Supreme Court reasoned as follows: Section 157(b)(5) does not have the hallmarks of a jurisdictional decree. To begin, the statutory text does not refer to either district court or bankruptcy court ’jurisdiction,’ instead addressing only where personal injury tort claims ’shall be tried.’ The statutory context also belies [the] jurisdictional claim. Section 157 allocates the authority to enter final judgment between the bankruptcy court and the district court. See §§ 157(b)(1), (c)(1). That allocation does not implicate questions of subject matter jurisdiction. See § 1 57(c)(2) (parties may consent to entry of final judgment by bankruptcy judge in non-core case). By the same token, § 157(b)(5) simply specifies where a particular category of cases should be tried. Id. at 2607. Accordingly, this provision does not confer any additional jurisdiction on the district courts, and thus the Court must find an alternative basis for the assertion of subject-matter 11 EXHIBIT C - PAGE 000074 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 77 of 106 Page ID #:79
  • 78. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 12 of 33 jurisdiction if it is to order the transfer of any state-court cases to this Court. 5 b. 28 U.S.C. § 1334 If § 157(b)(5) cannot itself provide the basis for federal jurisdiction over the state-court cases, the Court must look elsewhere for a statutory grant of jurisdiction. As the parties acknowledge, jurisdiction over the vast majority of these cases depends on the Court’s interpretation of its bankruptcy jurisdiction under 28 U.S.C. § 1334. Section 1334 provides district courts with original, but not exclusive, jurisdiction over "all civil proceedings arising under title 11, or arising in or related to cases under title 11." 28 U.S.C. § 1334. The scope of related-to jurisdiction is "quite broad." In re Boston Reg’l Med. Ctr., 410 F.3d 100, 105 (1st Cir. 2005). "[A] civil proceeding is related to bankruptcy [if] the outcome of that proceeding could conceivably have any effect on the [bankruptcy] estate." In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir. 1991) (internal quotations omitted), overruled on other grounds by Connecticut Nat’l Bank v. Germain, 503 U.S. 249 (1992); Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir. 1984), overruled on other grounds by Things Remembered v. Petrarca,516 U.S. 124 (1995); TD Bank, N.A. v. Sewall, 419 B.R. 103, 105-06 (D. Me. 2009); In re Twin/abs Personal Injury Cases, 2004 WL 435083, 1 (S.D.N.Y. 2004) ("The standard for ’related to’ jurisdiction over a suit in the posture of [an action against non-debtor third parties] is "whether its outcome might have any ’conceivable effect’ on the bankrupt estate." (quoting To be clear, transfer of the federal cases that are currently before the Court (whether filed here or transferred under the JPML) is squarely addressed by § 157(b)(5). Section 157(b)(5) states that "personal injury tort and wrongful death claims" are to be tried by a federal district court either in the district where the claim arose or the district where the bankruptcy case is pending, giving the district court in the district where the bankruptcy case is pending discretion to choose between the two venue options. NECC filed for bankruptcy in the District of Massachusetts, which gives this Court the discretion under § 157(b)(5) to determine the appropriate venue for personal injury and wrongful death cases pending in the federal courts related to contaminated IvIPA manufactured and/or sold by NECC or its affiliates. 12 EXHIBIT C - PAGE 000075 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 78 of 106 Page ID #:80
  • 79. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 13 of 33 Cuyahoga Equip. Corp. v. Publicker Indus. Inc., 980 F.2d 110, 114 (2d Cir.1992))). 6 Such jurisdiction is not unlimited, however. There must be some nexus between the "related" proceeding and the bankruptcy case, such that "the outcome of the litigation potentially could have some effect on the bankruptcy estate, such as altering debtor’s rights, liabilities, options, or freedom of action, or otherwise have an impact upon the handling and administration of the bankrupt estate." In re Boston Reg ’1, 410 F.3d at 105 (internal citations and textual alterations omitted); see Pacor, 743 F.2d at 994. As noted, there are two general categories of state-court cases that are the subject of the trustee’s motion: those that name NECC or affiliated entities as defendants, and those that do not. It is undisputed that the Court has related-to jurisdiction over cases in the former category. The outcome of such suits against the debtor and its affiliates certainly "could have some effect on the bankruptcy estate." In re Boston Reg ’1, 410 F .3 d at 105 (internal citations and textual alterations omitted). The more difficult question is whether the Court has related-to jurisdiction over cases currently pending in state court that do not name NECC or affiliated entities as defendants, but rather name only third-parties (such as physicians or pain clinics), or in which NECC affiliates are named only in third-party claims for contribution or indemnity. In Pacor, the Third Circuit held that related-to jurisdiction did not exist over a suit by an employee against a distributor of asbestos, even though the employee’s success in that suit 6 The First Circuit, along with most other circuits, has adopted the standard set forth in Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir. 1984). See, e.g., In Re Boston Reg’l, 410 F.3d at 105 (citing Pacor); In re G.S.F. Corp., 938 F.2d at 1475 (same); In re Santa Clara Cnty. Child Care Consortium, 223 B.R. 40, 45 n.8 (1st ir. B.A.P. 1998) (collecting cases); see also Celotex Corp. v. Edwards, 514 U.S. 300, 308 n.6 ("The First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits have adopted the Pacortest with little or no variation."). 13 EXHIBIT C - PAGE 000076 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 79 of 106 Page ID #:81
  • 80. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 14 of 33 would likely cause the distributor to seek indemnification from the debtor, an asbestos manufacturer. Pacor, 743 F.2d at 986. The court concluded that the action was, at best, a "mere precursor to the potential third party claim for indemnification by [.the distributor] against [the manufacturer]." Id. at 995. The court contrasted these facts with those in In re Brentano ’s, Inc., 27 B.R. 90 (Bankr. S.D.N.Y. 1983), where the debtor’s landlord sued the guarantor of the debtor’s lease. Pacor, 743 F.2d at 995. Because the debtor had agreed to indemnify the guarantor, any recovery against the guarantor would result in automatic liability to the estate, creating related-to jurisdiction. Id. In contrast, the employee in Pacorwas not a creditor of the asbestos manufacturer, and "[a]ny judgment obtained would thus have no effect on the arrangement, standing, or priorities of [the asbestos manufacturer’s] creditors." Id. at 995-96. Applying Pacor, courts have held that related-to jurisdiction exists over suits by tort plaintiffs, who are potential creditors, against non-debtor third-party defendants in only limited circumstances. One such situation is when a judgment against the third party would automatically convert that third party into a creditor due to an existing contribution or indemnity obligation. See, e.g., Cambridge Place Inv. Mgmt. v. Morgan Stanley & Co., 2010 U.S. Dist. LEXIS 142954 (D. Mass. 2010); City ofAnn Arbor Empis. Ret. Sys. v. CitigroupMortg. Loan Trust Inc., 572 F. Supp. 2d 314 (E.D.N.Y. 2008); In Re Brentano ’s, Inc., 27 Bankr. 90 (S.D.N.Y. 1983). It remains an open question of law, at least in the First Circuit, whether there is related-to Another situation is when recovery under an action by a creditor against a third party could reduce the amount that the creditor can claim from the estate directly. See, e.g., TD Bank, N.A. v. Sewall, 419 B.R. 103 (D. Me. 2009); In re Baptist Foundation ofArizona, 2000 WL 35575676, at *1 (D. Ariz. June 30, 2000); In re Curran, 157 B.R. 500 (Bankr. D. Mass. 1993). None of the cases that the trustee seeks to have transferred to this Court present that situation. 14 EXHIBIT C - PAGE 000077 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 80 of 106 Page ID #:82
  • 81. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 15 of 33 jurisdiction over a case against a non-debtor, third-party defendant who has apotential (as opposed to an actual) claim for contribution or indemnity against the debtor. See Cambridge Place, 2010 U.S. Dist. LEXIS 142954 (noting that "[t]he First Circuit has not yet addressed the appropriate standard to be applied in evaluating whether contractual indemnification obligations give rise to ’related to’ bankruptcy jurisdiction."); see also In re Santa Clara County Care Consortium, 223 B.R. 40 (B.A.P. 1st Cir. 1998) ("[The determination of whether a removed state court proceeding is sufficiently related to a debtor’s bankruptcy to confer subject matter jurisdiction is complicated by what appears to be contradictory opinions."). The Third Circuit, in a line of cases after Pacor, has clarified its view that related-to jurisdiction does not exist over a case against a non-debtor defendant if another lawsuit would be necessary before the bankruptcy estate would be impacted. See, e.g., In re W.R. Grace & Co., 591 F.3d 164, 169 (3d Cir. 2009) (finding no related-to jurisdiction where there would first have to be a finding in the state-court action and then a separate suit to pursue a claim for indemnification before there could be any impact on the bankruptcy estate); In re Combustion Eng’g, 391 F.3d 190, 231-32 (3d Cir. 2004) ("[A]y indemnification claims against Combustion Engineering. . . would require the intervention of another lawsuit to affect the bankruptcy estate, and thus cannot provide a basis for ’related to’ jurisdiction."); In re Federal-Mogul Global, Inc., 300 F.3d 368, 382 (3d Cir. 2002) ("The test articulated in Pacor for whether a lawsuit could ’conceivably’ have an effect on the bankruptcy proceeding inquires whether the allegedly related lawsuit would affect the bankruptcy proceeding without the intervention of yet another lawsuit."). The Fifth Circuit, taking a slightly more expansive view of related-to jurisdiction, has 15 EXHIBIT C - PAGE 000078 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 81 of 106 Page ID #:83
  • 82. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 16 of 33 emphasized the difference between "tort contribution" principles and "contractual indemnification rights," asserting jurisdiction over a case based on the latter. Lone Star Fund V (US), LP v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. Tex. 2010). At least one bankruptcy court in this circuit has adopted a similar requirement for related-to jurisdictionthat the debtor have "an unconditional duty to indemnify" the third-party defendant. TD Bank, N.A. v. Sewall, 419 B.R. 103, 106 (D. Me. 2009) (explaining the basis and rationale for this rule). The Fourth Circuit, in A.H. Robins Co. v. Piccinin, 788 F.2d 994 (4th Cir. 1986), has read Pacorto establish a distinction between a potential claim for contribution from a third-party defendant and a contractual duty to indemnify that defendant. Id. at 1001 ("The clear implication of the [Pacor] decision is that, if there had been a contract to indemnify, a contrary result would have been in order."). Although the court ultimately remanded for a hearing on the motion to transfer in that case, citing due process concerns, it clearly intimated that related-to jurisdiction over the claims against non-debtor defendants could exist under § 1334. See id. at 1016, 999-1001 (affirming the district court’s extension of the mandatory stay to suits against non-debtor defendants based in part on the court’s interpretation of related-to jurisdiction). The Sixth Circuit, in In re Dow Corning Corp., 86 F.3d 482 (6th Cir. 1996), took a more pragmatic approach to related-to jurisdiction, asserting jurisdiction over thousands of claims against non-debtor defendants. In doing so, the court distinguished the potential impact on the estate of the large number of cases before it from that of the single allegedly related suit involved in Pacor; noting that "[a] single possible claim for indemnification or contribution simply does not represent the same kind of threat to a debtor’s reorganization plan as that posed by the 16 EXHIBIT C - PAGE 000079 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 82 of 106 Page ID #:84
  • 83. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 17 of 33 thousands of potential indemnification claims at issue here." Dow Corning, 86 F.3d at 494. The court in In re Twin/abs Personal Injury Cases, 2004 WL 435083, 1 (S.D.N.Y. 2004), cited that decision, and took a similar approach, in asserting jurisdiction over personal injury cases against non-debtor defendants. The personal-injury cases at issue were all based on products-liability claims surrounding the manufacture and sale of the diet pill ephedra. Twinlabs, the manufacturer at issue, filed for bankruptcy. In a brief opinion granting the debtor’s motion to transfer a state court case against retailers of ephedra, Judge Rakoff noted that "the retailer defendants.. . will undoubtedly seek indemnity from the Debtors following any judgments against them. Accordingly, from many perspectives, the. . action against the retailers will have more than a ’conceivable effect’ on the bankrupt estate of the Debtors." Id. 8 The situation presented here implicates many of the same concerns that motivated the Sixth Circuit’s decision to assert jurisdiction over the claims against non-debtor defendants in Dow Corning. Although Dow Corning did not distinguish between state-court cases against third-party defendants who had already asserted claims against the debtor and cases against those who merely "intend[ed] to file claims for contribution and indemnification," that may be a relevant, indeed important, distinction. See 86 F.3d at 494; In re Santa Clara, 223 B.R. at 49 (finding "an insufficient nexus to confer ’related to’ subject matter jurisdiction on the bankruptcy court, in state court actions involving non-debtor parties, which may result in contribution/substitution of creditors without a change in the classification of a claim as it relates to the debtor.") (emphasis added). In any event, the issue of subject-matter jurisdiction is far from clear, and there appears 8 The court in Twinlabs did not discuss the jurisdictional issues in any greater depth. 17 EXHIBIT C - PAGE 000080 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 83 of 106 Page ID #:85
  • 84. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 18 of 33 to be no controlling authority. Unfortunately, the consequences of an incorrect judgment may be very substantial indeed; if the Court does not have subject-matter jurisdiction over a matter, any action it may undertake in that matter will be entirely void. Under the circumstances, the Court will take a two-step approach. First, the Court concludes that it has related-to subject-matter jurisdiction under § 1334 over any state-court case in which any plaintiff has asserted a claim, or any defendant has asserted a claim for contribution or indemnity, against NECC or any affiliated entity or individual. Such a claim could clearly have an effect, indeed a substantial effect, on the bankruptcy estate. However, as to state-court cases in which a claim against NECC or an affiliated entity or individual is possible, but has not yet been asserted, the Court will assume the existence of subject-matter jurisdiction, but will abstain from exercising any such jurisdiction. The factors governing the exercise of discretionary abstention, and the reasoning of the Court, are addressed below. The transfer of some, but not all, state-court cases might be something of a pointless exercise if the possibility remains that a state-court defendant could make a future claim in the bankruptcy case for contribution or indemnity, upsetting the effort to make an equitable distribution to the victims and other creditors. Indeed, that is the essential basis of the trustee’s motion: that the Court must transfer all state-court cases to foreclose that very possibility. The Court is not convinced, at least at this stage, that such a step is necessary. Other possible courses of action might produce the desired consolidation and finality, without resolving difficult issues of jurisdiction and abstention and without intruding unnecessarily into 18 EXHIBIT C - PAGE 000081 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 84 of 106 Page ID #:86
  • 85. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 19 of 33 the proceedings of state courts. For example, if the Bankruptcy Court were to set a relatively early bar date for the filing of claims against the estate, it would appear that any defendant in a state-court action would be effectively forced to decide whether it wanted to file a claim for contribution or indemnity against the estate. Such a claim, in turn, would probably permit the exercise of federal jurisdiction over the underlying matter. Any defendant who did not file a claim would be barred, and the state-court case could proceed to judgment without interference from the federal court. Either way, the desired goals would be achieved with a relatively minimal degree of risk or intrusion. In any event, the Court does not need to reach the issue at this juncture. If the balance of factors shifts over time, the Court can revisit the issue, and if necessary (and appropriate) can issue further orders concerning the exercise of related-to jurisdiction. 2. Abstention If this Court has subj ect-matter jurisdiction over cases now pending in state courts, the question arises whether it should abstain from asserting such jurisdiction, either pursuant to the mandatory abstention provisions of § 1334(c)(2), or the discretionary abstention provisions of § 1334(c)(1). 9 a. Mandatory Abstention Under 1334(0(2) Section 1334(c)(2) requires district courts to abstain from asserting related-to jurisdiction over state-law claims in certain circumstances. The statute provides as follows: Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a Certain Virginia state-court plaintiffs have likewise moved to compel the Court to abstain from transferring their specific cases pursuant to § 1334(c)(2). 19 EXHIBIT C - PAGE 000082 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 85 of 106 Page ID #:87
  • 86. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 20 of 33 case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. 28 U.S.C. § 1334(c)(2). 1 Section 1334(c)(2) must be read in conjunction with 28 U.S.C. § 157(b)(4), which states that "[n]on-core proceedings under ’section 1 57(b)(2)(B) . . . shall not be subject to the mandatory abstention provisions of section 1334(c)(2)." And § 157(b)(2), in turn, provides that "the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11" are non-core claims. 28 U.S.C. § 157(b)(2)(13) (emphasis added). A strict textual reading of the statutes may lead to the conclusion that personal injury and wrongful death claims asserted against non-debtor third parties (for example, against various healthcare providers), and not against the bankruptcy estate, are subject to the mandatory abstention provisions of § 1334(c)(2). This is the reading afforded the statutory language by Judge Wilson in Wingate. 2013 U.S. Dist. LEXIS 67358. Other district courts, however, have extended the exception of § 1 57(b)(4) from mandatory abstention to claims against non-debtor third-parties where indemnification 10 This provision has been read to establish five criteria that must be present to trigger mandatory abstention: (1) a timely motion requesting abstention; (2) an essentially state-law cause of action; (3) a non-core proceedingone that is only "related to" the bankruptcy case; (4) a lack of federal jurisdiction absent the existence of the bankruptcy case; and (5) an ongoing state-court proceeding that be timely adjudicated. In re Southmark Corp., 163 F.3d 925, 929 n. 2 (5th Cir. 1999). There is some dispute as to whether the state-court proceeding must have already been commenced at the time of the bankruptcy filing for mandatory abstention to apply. Compare in re Container Transport, inc., 86 B.R. 804, 805 (E.D.Pa.1988) ("Consistent with all known authority and our proclivity to exercise our jurisdiction over matters related to our bankruptcy cases to expedite their disposition, we hold that the presence of a state court action is a necessary condition to invoke 28 U.S.C. § 1334(c)(2).") with Langston Law Firm v. Mississippi, 410 B.R. 150, 155 (S.D.N.Y. 2008) ("The language of § 1334(c)(2)that an ’action is commenced . . . in a State forum’does not on its face require the commencement of the state action prior to the bankruptcy action."). ’Li] EXHIBIT C - PAGE 000083 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 86 of 106 Page ID #:88
  • 87. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 21 of 33 agreements existed between those third-parties and the debtor. See Abbatiello v. Monsanto, 2007 WL 747804, 3 (S.D.N.Y. March 8, 2007) ("the exception to mandatory abstention also applies to litigation against [third-party defendants], because [debtor] is obligated to indemnify [third-party defendants] for any judgment awarded against them."); Berry v. Pharmacia Corp., 316 B.R. 883 (S.D. Miss. 2004) ("[G]iven the nature of the relationship and degree of identity between the debtor [and the third-party defendant], the rationale for exempting personal injury and wrongful death claims against the debtor’s estate from the mandatory abstention provision applies fully to the claims against [third-party defendant]. Under the terms of the Distribution Agreement, [third-party defendant] claims a right to absolute indemnity from [debtor] for any judgment that might be rendered against it, so that a judgment against [third-party defendant] is, in practical effect, a judgment against [third-party defendant]."). Judge Wilson acknowledged these cases and their reasoning, but found that no such indemnification agreement existed between NECC and the third-party defendant. He therefore concluded that the mandatory abstention provision of § 1334(c)(2) required that the matter be remanded to state court. See Wingate, 2013 U.S. Dist. LEXIS 67358. The trustee argues that Judge Wilson ignored Congress’s motivation for crafting an exception from mandatory abstention for personal injury and wrongful death claims and interpreted the statute too narrowly. That motivation has been aptly summarized as follows: In short, Congress, recognizing that the unpredictable and substantial verdicts that are often produced in personal injury tort and wrongful death claims could have potentially deleterious effects on a debtor’s estateparticularly when, because of the automatic stay provisions of the Bankruptcy Code, a debtor-defendant may not have participated in the underlying trialconcluded that, in non-core proceedings such as the one at bar, the mandatory abstention provision of § 1334(c)(2) should not apply. Becky. Victor Equipment Co., Inc., 277 B.R. 179, 180 -181 (S.D.N.Y. 2002) (Rakoff, J.). 211 EXHIBIT C - PAGE 000084 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 87 of 106 Page ID #:89
  • 88. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 22 of 33 Those same concerns are present here. Even in the absence of contractual indemnity agreements, the third-party defendants in the pending state-court actions may have claims for contribution or common-law indemnity from NECC in the event that they are found liable in state court. Those potential state-court verdicts pose the type of threat Congress had in mind when it crafted the exception to § 1334(c)(2)they can be "unpredictable and substantial" and even being required to contribute to their satisfaction "could have potentially deleterious effects on a debtor’s estate." Beck, 277 B.R. at 180 -181. This is particularly true in circumstances such as this, where the cause of action arises out of an allegedly defective product manufactured by the debtor. In many, if not all, jurisdictions, under ordinary circumstances, the debtor would be strictly liable for the harm caused by the defective product, even if there may have been a third- party interposed between the debtor and the tort claimant in the supply chain. See, e.g., Brown v. Superior Court, 751 P.2d 470, 482-483 (Cal. 1988) (finding that, "in accord with almost all our sister states that have considered the issue . . . a manufacturer is not strictly liable for [side effects] caused by a prescription drug so long as the drug was properly prepared and accompanied by warnings of its dangerous propensities.... [However, a manufacturer is] subject to liability for manufacturing defects"); Ayyash v. Henry Ford Health Sys., 210 Mich. App. 142, 147 (Mich. Ct. App. 1995) ("the essence of the relationship’ between the hospital and the patient and the physician and the patient is the provision of a service, not the sale of a product, and, therefore, products liability theories [are] inapplicable.... Further, whereas imposing strict liability on manufacturers arguably may promote greater care in manufacturing safer products, imposing strict liability on hospitals and physicians would not."). The Court must interpret the statutory language in the context of those practicalities. The 22 EXHIBIT C - PAGE 000085 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 88 of 106 Page ID #:90
  • 89. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 23 of 33 phrase "personal injury tort or wrongful death claims against the estate," as used in § 1 57(b)(2)(B), can fairly be read to encompass not only personal injury and wrongful death claims, but also claims for contribution or indemnity that derive from personal injury or wrongful death claims. Contribution or indemnity claims are simply procedural vehicles for asserting liability against the estate for some underlying harm. If the underlying harm giving rise to the estate’s potential liability involves personal injury or wrongful death, the claim against a third-party concerning that harm is, in substance, a "personal injury tort or wrongful death claim against the estate" and therefore covered by the exception in § 157(b)(2)(B). This reading is more congruent with Congress’s motivation in crafting the exception to mandatory abstention. A narrower reading would create a potentially gaping loophole in the carefully crafted system for the orderly administration of bankruptcy estates. Section 157(b)(2)(B), therefore, provides an exception from mandatory abstention for personal injury and wrongful death claims against non- debtor third-parties for contribution or indemnification. Accordingly, this Court finds that the mandatory abstention provision of § 1334(c)(2) does not apply to any of the state-court cases at issue. b. Discretionary Abstention Under § 1334(c)(1) In circumstances where § 1334(c)(2) does not strictly require abstention, § 1334(c)(1) nonetheless gives district courts discretion to abstain from asserting related-to jurisdiction over state-law claims. The statute provides as follows: Except with respect to a case under chapter 15 of title 11, nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. 28 U.S.C. § 1334(c)(1). 23 EXHIBIT C - PAGE 000086 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 89 of 106 Page ID #:91
  • 90. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 24 of 33 Courts have articulated twelve factors that should be considered when deciding whether or not to abstain under § 1334(c)(1). Those factors are as follows: (1) the effect or lack thereof on the efficient administration of the estate if a Court recommends abstention; (2) the extent to which state law issues predominate over bankruptcy issues; (3) the difficulty or unsettled nature of the applicable state law; (4) the presence of a related proceeding commenced in state court or other nonbankruptcy court; (5) the jurisdictional basis, if any, other than 28 U.S.C. § 1334; (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; (7) the substance rather than form of an asserted "core" proceeding; (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court; (9) the burden [on] the court’s docket; (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties; (11) the existence of a right to a jury trial; and (12) the presence in the proceeding of nondebtor parties. In re Twin Laboratories, Inc., 300 B.R. 836, 841 (S.D.N.Y. 2003). Here, the Court finds that the balance of those factors weighs against discretionary abstention, except as those cases pending in state courts that do not involve any claims against NECC-affiliated entities or individuals. As noted, the most efficient use of the limited resources of the judicial system, and the fairest and most efficient distribution of the assets of the estate, would be for all of the related cases to be consolidated in one court. Abstention would be counterproductive to that end. In addition, the state-law claims in the cases at issue are primarily based on well-settled principles of tort and product liability; a federal court could likely adjudicate them without being required to decide unresolved issues of state law. This is especially true considering the currently limited scope of the consolidation to pre-trial matters. 24 EXHIBIT C - PAGE 000087 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 90 of 106 Page ID #:92
  • 91. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 25 of 33 Furthermore, the bankruptcy here is somewhat unusual. The debtor, NECC, had relatively few assets and no secured creditors of any significance. As a result, the primary focus of the plan will likely be satisfying, to the maximum extent possible, the unsecured claims of injured plaintiffs for damages and possibly of third parties for contribution or indemnity. Thus, decisions on factual and legal issues as to liability and damages in all of the state-court cases will likely have tremendous import on the bankruptcy proceedings and the reorganization plan. This is particularly trueindeed, determinativewith respect to cases against third-party defendants who have already asserted their own claims against NECC. However, a number of factors suggest that abstention is warranted as to some of the cases that the trustee is seeking to have transferred. The issues that will decide the debtor’s liabilities and the validity of claims against the estate primarily involve state law. State-court plaintiffs, as well as the states themselves, certainly have a strong interest in having state-law claims adjudicated by the state-court system. Most importantly, the basis for asserting jurisdiction over the state-court cases at issue is confined entirely to § 1334, and that jurisdiction is unclear at best. The potential harm to federal-state comity is potentially at its greatest where the basis for federal jurisdiction is uncertain. In light of these considerations, the Court will exercise its discretion and abstain from asserting jurisdictionagain, assuming that it existsover those cases currently pending in state courts involving only state-law claims against defendants other than NECC and its affiliates, and where there is no third-party claim for contribution or indemnity. The Court may, in the future, assert jurisdiction over any such case should the third-party defendant actually assert such a claim, but it will refrain from deciding that issue at this time. 25 EXHIBIT C - PAGE 000088 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 91 of 106 Page ID #:93
  • 92. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 26 of 33 3. Anti-Injunction Act The parties acknowledge that the assertion ofjurisdiction by this Court over cases pending in state court cases could, under some circumstances, require the issuance of injunctions staying proceedings or otherwise mandating the transfer of state cases. The Anti-Injunction Act provides that a federal court "may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283. The trustee contends that enjoining the state-court proceedings against third-party non- debtor defendants would not run afoul of the Anti-Injunction Act because the granting of such an injunction would be "necessary in aid of [the Court’s] jurisdiction." § 2283. The Supreme Court has interpreted this exception to the rule as follows: [w]hile this language is admittedly broad, we conclude that it implies something similar to the concept of injunctions to "protect or effectuate" judgments. Both exceptions to the general prohibition of § 2283 imply that some federal injunctive relief may be necessary to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide that case. Atlantic C. L. R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 295 (1970). The trustee also points to the All Writs Act, 28 U.S.C. § 1651, as well as a few MDL cases from other circuits where injunctions in aid of jurisdiction were upheld. See, e.g., Newby v. Enron Corp., 302 F.3d 295, 300 (5th Cir. 2002). It may well be the case that this Court could be forced to issue injunctive relief in aid of its related-to jurisdiction in order to effectuate the necessary transfers. But even assuming that the Court has the power to issue an injunction in aid of jurisdiction, it is not immediately apparent such an action is necessary or appropriate at this stage. Such an injunction is something 26 EXHIBIT C - PAGE 000089 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 92 of 106 Page ID #:94
  • 93. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 27 of 33 of a weapon of last resort, and the Court will not lightly undertake to employ it, particularly when other alternatives may be available. For example, in Twinlabs, Judge Rakoff simply directed "[c]ounsel for the Debtors . . . to distribute copies of [his order granting the motion to transfer] to all affected counsel within two business days hereof and to work with them to arrange the expeditious transfer of the Acuff case to this Court." In re Twinlabs, 2004 WL 435083 at 2. Rather than reach a final decision as to the issue at this stage, the Court will in the first instance work with counsel and ascertain if less drastic measures will achieve the desired goal. 4. Conclusion For the foregoing reasons, the Court will grant the trustee’s motion to transfer as to (1) those cases against NECC or any affiliated entity or individual pending in federal courts, (2) those cases against NECC or any affiliated entity or individual in the process of being removed from state court, and (3) those cases pending in state courts in which any party has asserted a claim (including a claim for contribution or indemnity) against NECC or any affiliated entity or individual." The Court will deny the trustee’s motion as to those cases pending in state courts in which a claim against NECC or an affiliated entity or individual is possible, but has not yet been asserted, without prejudice to its renewal. The precise mechanics of effectuating the transfer of cases pursuant to this memorandum and order, including the form of any further order that may be required, will be determined at a later time. The Court assumes, without deciding, that a claim for contribution or indemnity filed in the bankruptcy action would render the underlying state-court action subject to this Court’s jurisdiction. 27 EXHIBIT C - PAGE 000090 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 93 of 106 Page ID #:95
  • 94. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 28 of 33 B. Motions to Withdraw Reference Defendants Ameridose and GDC have filed motions to withdraw the reference of certain personal injury and wrongful death cases from the Bankruptcy Court to this Court. All parties before this Court, except the plaintiffs in those specific actions, support the motions to withdraw. The relevant statute, 28 U.S.C. § 157(d), provides that "[t]he district court may withdraw, in whole or in part, any case or proceeding referred under this section. . . on timely motion of any party, for cause shown." See United States v. Kaplan, 146 Bankr. Rptr. 500, 503 (D. Mass. 1992) (motion is timely if made as promptly as possible in light of the developments in the bankruptcy proceeding or at the first reasonable opportunity). Consolidation before this Court offers the same practical benefits for these few isolated cases pending before the Bankruptcy Court as it does for all of the other cases that were the subject of the trustee’s motion to transfer. However, simply withdrawing the reference to the Bankruptcy Court presents none of the complicated jurisdictional questions discussed at length above. Instead, this Court undoubtedly has related-to jurisdiction over these matters and the discretion to withdraw the reference from the Bankruptcy Court upon a showing of good cause. This Court finds that the benefits of consolidation with the hundreds of other personal injury and wrongful death cases currently before it constitutes the requisite good cause for withdrawal. Accordingly, the Court will withdraw the reference of all adversary proceedings against NECC and affiliated entities involving personal injury and wrongful death claims from the Bankruptcy Court. 28 EXHIBIT C - PAGE 000091 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 94 of 106 Page ID #:96
  • 95. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 29 of 33 C. Motions to Remand in New Jersey Cases Plaintiffs in certain New Jersey actions that have been consolidated before this Court pursuant to the JPML’s transfer order have recently moved for their specific cases to be remanded to New Jersey state courts. As an initial matter, the Court finds that it has related-to jurisdiction over these cases by nature of the fact that they all name NECC and/or at least one NECC-affiliated entity as a defendant.’2 For the reasons outlined above, the Court finds that "the outcome of th[ese] proceeding[s] could conceivably have [an] effect on the [bankruptcy] estate." In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir. 1991). Accordingly, the Court will deny the motion to remand the New Jersey cases. In the alternative, some parties have proposed that the state-law claims against non- NECC-affihiated third-party defendants be severed and remanded. At oral argument, Ameridose endorsed this solution only as an alternative to simply denying the motions to remand outright. In the original motions to remand, the New Jersey plaintiffs opposed severance. However, some plaintiffs, likely realizing the futility of the motions to remand in light of NECC’s bankruptcy, have very recently taken the position that severance is appropriate. With regard to the issue of severance, Fed. R. Civ. P. 21 indeed gives the Court power to "sever any claim against a party." However, in light of the conflicted positions taken by the various New Jersey plaintiffs, and the benefits of consolidation, at least for pre-trial purposes, discussed above, the Court does not find a compelling reason to exercise its discretion and sever 12 Most of these motions to remand were filed prior to NECC’s bankruptcy, and consequently much of the argument against federal jurisdiction was based on the lack of complete diversity between the parties. However, related-to jurisdiction now provides an alternative basis for subject-matter jurisdiction. Indeed, it does not appear from the briefing on these motions that any plaintiff has challenged the Court’s § 1334 jurisdiction. 29 EXHIBIT C - PAGE 000092 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 95 of 106 Page ID #:97
  • 96. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 30 of 33 the claims against third-party defendants in the New Jersey actions. Accordingly, to the extent that the motions to remand seek severance as an alternative, they will also be denied. B. Motions to Remand Massachusetts Cases Plaintiffs in three Massachusetts actions have moved for their cases to be remanded to Massachusetts state courts. They filed these motions prior to the bankruptcy of NECC and the consolidation of cases before this Court in the MDL. Accordingly, for substantially the same reasons noted above with respect to the New Jersey cases, the Court will deny the motions to remand. E. Motions to Remand Virginia Cases Plaintiffs in two Virginia actions have moved for their cases to be remanded to Virginia state courts. 13 They filed these motions prior to the consolidation of cases before this Court in the MDL. Accordingly, for substantially the same reasons articulated above with respect to the New Jersey and Massachusetts cases, the Court will deny the motions to remand. F. Motion for Mandatory Abstention in Virginia Cases Plaintiffs in certain other Virginia actions that were the subject of Judge Wilson’s decision in Wingate, 2013 U.S. Dist. LEXIS 67358, filed a motion for mandatory abstention pursuant to § 1334(c)(2).’4 For the reasons set forth above, the Court finds that the mandatory abstention provision of § 1334(c)(2) does not apply to these cases, and therefore will deny the motion. However, to the extent that these cases do not yet involve claims against NE CC or 13 The cases originating in Virginia that have been removed to this court in which the plaintiffs have filed motions to remand are Radford v. New England Compounding Pharmacy, Inc., et al., 1:13 -cv- 1068 8-FDS, and Rhodes v. New England Compounding Pharmacy, Inc., 1:13-cv-10504-FDS. 14 This motion was filed in Erkan v. New England Compounding Pharmacy, Inc. et al., 1:1 2-cv- 1 2052-FDS and is referred to by the parties and herein as "Roanoke Gentry Locke Plaintiffs’ Motion for Mandatory Abstention." 30 EXHIBIT C - PAGE 000093 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 96 of 106 Page ID #:98
  • 97. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 31 of 33 affiliated entities or individuals, the Court will exercise its discretion to abstain from asserting jurisdiction over them consistent with this memorandum and order. III. Conclusion For the foregoing reasons: (l)The Trustee’s Motion to Transfer Personal Injury Tort and Wrongful Death Cases is GRANTED as to (1) those cases against NECC or any affiliated entity or individual pending in federal courts, (2) those cases against NECC or any affiliated entity or individual in the process of being removed from state court, and (3) those cases pending in state courts in which any party has asserted a claim (including a claim for contribution or indemnity) against NECC or any affiliated entity or individual. A list of the pending cases to which this transfer order applies will be entered separately on the docket. The motion is DENIED as to those cases pending in state courts in which no claim against NECC or an affiliated entity or individual has been asserted, without prejudice to its renewal with as to those cases; (2) Roanoke Gentry Locke Plaintiffs’ Motion for Mandatory Abstention is DENIED; (3) Defendants’ Motions to Withdraw the Reference in the following cases are GRANTED: Shaffer et at v. Cadden, 1:1 3-cv.- 1 0226-FDS Schroder et at v. New England Compounding Pharmacy, Inc., 1 :13-cv-10227-FDS Cary v. New England Compounding Pharmacy, Inc., 1:1 3-cv-l0228-FDS Adams v. Cadden, 1:1 3-cv- 1 0229-FDS (4) Plaintiffs’ Motions to Remand in the following cases are DENIED: Thompson v. New England Compounding Pharmacy, Inc., 31 EXHIBIT C - PAGE 000094 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 97 of 106 Page ID #:99
  • 98. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 32 of 33 1 :12-cv-12074-FDS Armstrong v. New England Compounding Pharmacy, Inc., 1 :12-cv-12077-FDS Guzman v. New England Compounding Pharmacy, Inc., 1 :12-cv-12208-FDS Devilli, et al. v. Ameridose, LLC, et al., 1 :13-cv-1 1 167FDS Marko v. New England Compounding Pharmacy, Inc., et al., 1:1 3-cv-10404-FDS Pennington v. New England Compounding Pharmacy, Inc., et al., 1 :13-cv-10406-FDS Hannah v. New England Compounding Pharmacy, Inc., et al., 1: 13-cv-10407-FDS Leaverton v, New England Compounding Pharmacy, Inc., et al., 1: 13-cv-10408-FDS Jones v. New England Compounding Pharmacy, Inc., et al., 1 :13-cv-10409-FDS Ramos v. New England Compounding Pharmacy, Inc., et al., 1:13-cv-10410-FDS Rios v. New England Compounding Pharmacy, Inc., et al., 1 :13-cv-10411-FDS Rivera v. New England Compounding Pharmacy, Inc., et al., 1 :13-cv-10412-FDS Tolotti v. New England Compounding Pharmacy, Inc., et al,, 1 :13-cv-10413-FDS Tayvinsky v. New England Compounding Pharmacy, Inc., et al., 1 :13-cv-10414-FDS Zavacki v. New England Compounding Pharmacy, Inc., et al., 1:13-cv-10441-FDS Letizia v. New England Compounding Pharmacy, Inc., 32 EXHIBIT C - PAGE 000095 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 98 of 106 Page ID #:100
  • 99. Case 1:12-cv-12052-FDS Document 224 Filed 05/31/13 Page 33 of 33 1:1 3-cv- 1 0442-FDS Gould v. New England Compounding Pharmacy, Inc., 1 :13-cv-10444-FDS Tisa v. New England Compounding Pharmacy, Inc., et al., 1 :13-cv-10446-FDS Normand v. New England Compounding Pharmacy, Inc., et al., 1 :13-cv-10447-FDS Radford v. New England Compounding Pharmacy, Inc., et al., 1 :13cv-1O688-FDS Rhodes v. New England Compounding Pharmacy, Inc., 1:1 3-cv-10504-FDS (5) The Court will issue separate orders in the dockets of the specific cases just referenced as to the motions affected by this order. So Ordered. Is! F. Dennis Savior F. Dennis Saylor IV United States District Judge Dated: May 31, 2013 33 EXHIBIT C - PAGE 000096 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 99 of 106 Page ID #:101
  • 100. 2 3 4 5 6 7 8 9 10 11 E t" cool 12 Dr’N 13 rq 14 avu z-1 . 16 17 18 19 20 21 22 23 24 25 26 27 28 I 0 4 z 4 > 4 L] 4 I0 - > LLI >-M PROOF OF SERVICE jSTATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 355 South Grand Avenue, Fifteenth Floor, Los Angeles, LA 90071-1560. On July 29, 2013, I served true copies of the following document(s) described as NOTICE OF REMOVAL OF ACTION on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Yukevich I Cavanaugh’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on July 29, 2013, at Los Angeles, C, 1ifornia. Deanna Castellanos 1166402.1 / 00-029 NOTICE OF REMOVAL OF ACTION Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 100 of 106 Page ID #:102
  • 101. 0 I WII IOt.I 0C’I L9 Ln < - 1 >< Wm D - I 1) 4vIO - I WI >d 0. w I Ln J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST FANI v NEW ENGLAND COMPOUNDING PHARMACY Corinne Elfassi Simon Resnik, LLP 15233 Ventura Blvd., Suite 250 Sherman Oaks, CA 91403 Cynthia A. Palm Prindle, Amaro, Goetz, Hillyard Barnes & Reinholz, LLP 310 Golden Shore Parkway, 4th Floor Long Beach, CA 90802 Attorneys for Plaintiff DAWN YOUNANI T:(818) 783-6251 F: (818 783-6253 Attorneys for Defendant THE ENCINO OUTPATIENT SURGERY CENTER, INC. T:(562)436-3946 F: M 2 495-0564495-0564 1166402.1 /00-029 NOTICE OF REMOVAL OF ACTION Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 101 of 106 Page ID #:103
  • 102. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY This case has been assigned to District Judge Beverly Reid O’Connell and the assigned discovery Magistrate Judge is Alicia G. Rosenberg. The case number on all documents filed with the Court should read as follows: CV13- 5446 BRO (AGRx) Pursuant to General Order 05-07 of the United States District Court for the Central District of California, the Magistrate Judge has been designated to hear discovery related motions. All discovery related motions should be noticed on the calendar of the Magistrate Judge NOTICE TO COUNSEL A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is filed, a copy of this notice must be served on all plaintiffs). Subsequent documents must be filed at the following location: [JWestern Division U Southern Division LI Eastern Division 312 N. Spring St., Rm. G-8 411 West Fourth St., Rm. 1-053 3470 Twelfth St., Rm. 134 Los Angeles, CA 90012 Santa Ana, CA 92701-4516 Riverside, CA 92501 Failure to file at the proper location will result in your documents being returned to you. CV-18 (03/06) NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 102 of 106 Page ID #:104
  • 103. UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA CIVIL COVER SHEET I. (a) PLAINTIFFS ( Check box if you are representing yourself ) DEFENDANTS (Check box if you are representing yourself El Dawn Younani New England Compounding Pharmacy, Inc. dba New England Compounding Center; The Encino Outpatient Surgery Center, Inc.; and Does 1 through 100 (b) Attorneys (Firm Name, Address and Telephone Number. If you (b) Attorneys (Firm Name, Address and Telephone Number. If you are representing yourself, provide same.) are representing yourself, provide same.) Corinne Elfassi, SIMON RESNICK HAYES LLP James J. Yukevich, Patrick Cimmarusti, YUKEVICH CAVANAUGH 15233 Ventura Boulevard, Suite 250 355 South Grand Avenue, 15th Floor, Los Angeles, CA 90071 Sherman Oaks, CA 91403 Telephone: (213) 362-7777 Telephone: (818) 783-6251 (Counsel for New England Compounding Pharmacy, Inc. Only) II. BASIS OF JURISDICTION (Place an X in one box only.) III. CITIZENSHIP OF PRINCIPAL PARTIES-For Diversity Cases Only (Place an X in one box for plaintiff and one for defendant) 1. U.S. Government fj 3. Federal Question (U.S. PTF DEF PTF DEE Citizen of This State 1 Incorporated or Principal Place Plaintiff Government Not a Party) of Business in this State Citizen of Another State 2 2 Incorporated and Principal Place 2. U.S. Government El Li 4. Diversity (Indicate Citizenship of Business in Another State Citizen or Subject of a Defendant of Parties in Item III) Foreign Country Li 3 j 3 Foreign Nation fl fl 6 IV. ORIGIN (Place an X in one box only.) 5. Transferred from Another 6. Multi- El District (specify) District - 1. Original 2. Removed from 3. Remanded from D 4. Reinstated or Litigation RIL_l Proceeding State Court Appellate Court Reopened V. REQUESTED IN COMPLAINT: JURY DEMAND: Rx Yes No (Check "Yes" only if demanded in complaint.) CLASS ACTION under F.R.Cv.P. 23: DYes RxNo R MONEY DEMANDED IN COMPLAINT: $ VI. CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause. Do not cite jurisdictional statutes unless diversity.) 28 USC 1334(b) (related to bankruptcy proceeding) VII. NATURE OF SUIT (Place an X in one box only). OTHER STATUTES CONTRACT REAL PROPERTY CONT. IMMIGRATION PRISONER PETITIONS PROPERTY RIGHTS Li 375 False Claims Act Li 400 State Reapportionment Li 410 Antitrust Li 430 Banks and Banking 450 Commerce/ICC Li Rates/Etc. LI 460 Deportation E] 470 Racketeer Influ- enced & Corrupt Org. Li 480 Consumer Credit Li 490 Cable/Sat TV 850 Securities/Com- Li modities/Exchange 890 Other Statutory Li Actions Li 891 Agricultural Acts Li Li 893 Environmental Matters 895 Freedom of Info. Act Li 896 Arbitration 899 Admin. Procedures Li Act/Review of Appeal of Agency Decision 950 Constitutionality of Li State Statutes Li 110 Insurance Li 120 Marine Li 130 Miller Act -, 140 Negotiable _ Instrument 150 Recovery of Li Overpayment& Enforcement of Judgment Li 151 Medicare Act 152 Recovery of Li Defaulted Student Loan (Excl. Vet.) 153 Re very of Li Overpayment co of Vet. Benefits 160 Stockholders’r- ’-i Suits Li 190 Other Contract 195 Contract Li Product Liability 196 Franchise fl 240 Torts to Land 245 Tort Product LI Liability 290 All Other Real Li Property r 462 Naturalization Application 465 Other Li Immigration Actions Habeas Corpus: fl 463 Allen Detainee Li 5lo Motions toVacate Sentence Li 530 General LI 535 Death Penalty Other: Li 540Mandamus/Other Li 550 Civil Rights Li 555 Prison Condition 560 Civil Detainee Confinement 820 Copyrights 0 83oPatent fl 840 Trademark TORTS SOCIAL SECURITY TORTS PROPERTY_PERSONAL Li Conditions of Li 861 HIA (1395ff) Li 862 Black Lung (923) 863 DIWC/DIWW (405 (g)) Li 864 SSID Title XVI Li 865 RSI (405 (a)) PERSONAL INJURY____________________ LI 370 Other Fraud Li 371 Truth in Lending 380 Other Personal Li Property Damage r-i 385 Property Damage U Product Liability fl 310 315 Airplane Li Product Liability 320 Assault, Libel & Li Slander 330 Fed. Employers’ Li Liability Li 340 Marine 345 Marine Product Li Liability Li 350 Motor Vehicle 355 Motor Vehicle Li Product Liability Li 360 Other Personal Injury 362 Personal Injury- Li Med Maipratice 365 Personal Injury- Il Product Liability 367 Health Care/ Pharmaceutical -J Personal Injury Product Liability 368 Asbestos Li Personal Injury Product Liability FEDERAL TAX SUITS BANKRUPTCY FORFEITURE/PENALTY 870 Taxes (U.S. Plaintiff or El Defendant) Li 871 IRS-Third Party 26 USC 7609 ’ Security Act Li 422 Appeal 28 USC 158 423 Withdrawal 28 Li USC 157 625 Drug Related Li Seizure of Property 21 USC 881 fl 690 OtherCIVIL RIGHTS Li 440 Other Civil Rights Li 441 Voting Li 442 Employment 443 Housing! Li Accomodations 445 American with Li Disabilities- Employment 446 American with Li Li Disabilities-Other 448 Education ____________________ LABOR Li 710 Fair Labor Standards Act Li 720 Labor/Mgmt. Relations Li 740 Railway Labor Act 751 Family and Medical Li Leave Act 790 Other Labor Li Litigation 791 Employee Ret. Inc. REAL PROPERTY 210 Land Li Condemnation Li 220 Foreclosure 230 Rent Lease & Li Ejectment FOR OFFICE USE ONLY: Case AFTER COMPLETING PAGE 1 OF FORM CV-71, COMPLETE THE INFORMATION REQUESTED ON PAGE 2. CV-71 (02/13) CIVIL COVER SHEET Page 1 of 2 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 103 of 106 Page ID #:105
  • 104. UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA CIVIL COVER SHEET VIII(a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed? j NO YES If yes, list case number(s): VIII(b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? RK NO YES If yes, list case number(s): Civil cases are deemed related if a previously filed case and the present case: (Check all boxes that apply) J A. Arise from the same or closely related transactions, happenings, or events; or Li B. Call for determination of the same or substantially related or similar questions of law and fact; or LI C. For other reasons would entail substantial duplication of labor if heard by different judges; or LI D. Involve the same patent, trademark or copyright -and one of the factors identified above in a, borcalso is present. IX. VENUE: (When completing the following information, use an additional sheet if necessary) (a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named plaintiff resides. LI Check here if the government, its agencies or employees is a named plaintiff. If this box is checked, go to item (b). County in this District:* California County outside of this District; State, if other than California; or Foreign Country (b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides. Check here if the government, its agencies or employees is a named defendant. If this box is checked, go to item (c). County In this District:* California County outside of this District; State, if other than California; or Foreign Country (c) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH claim arose. NOTE: In land condemnation cases, use the location of the tract of land involved. County in this District:* California County outside of this District; State, if other than California; or Foreign Country Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbaraor $-,an Luis Obispo Counties Note: Inland condemnation cases, use the location of the tract of land S X. SIGNATURE OF ATTORNEY (OR SELF-REPRESENTED LITIGANT): / / DATE: Notice to Counsel/Parties: The CV-71 (JS-44) Civil Cover Sheet and th&afination contained herein neiter replace nor supplement the filing and service of pleadings or other papers as required by law. This form, approved by the Judicial Conference of the United States in September 1914, is required pursuant to Local Rule 3-1 is not filed but is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet). Key to Statistical codes relating to Social Security Cases: Nature of Suit Code Abbreviation Substantive Statement of Cause of Action All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also, 861 HIA include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program. (42 U.S.C. 1935FF(b)) 862 BL All claims for "Black Lung" benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969. (30 U.S.C. 923) DIWC All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as amended; plus 863 all claims filed for child’s insurance benefits based on disability. (42 U.S.C. 405 (g)) 863 DIWW All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security Act, as amended. (42 U.S.C. 405 (g)) All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, as 864 SSID amended. 865 RSI All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42 U.S.C. 405 (g)) - CV-71 (02/13) CIVIL COVER SHEET Page 2 of 2 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 104 of 106 Page ID #:106
  • 105. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 355 South Grand Avenue, Fifteenth Floor, Los Angeles, CA 90071-1560. On July 29, 2013, I served true copies of the following document(s) described as CIVIL COVER SHEET on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Yukevich I CavanaugWs practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare underpenalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on July 29, 2013, at Los Angeles, California. Deanna tilano 1 1 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 105 of 106 Page ID #:107
  • 106. I LL 4 t’I Z 4 -I > - 4 U - I 1.) -UI W > lii u4 /- .1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 SERVICE LIST DAWN YOUNANI v NEW ENGLAND COMPOUNDING INC. e T al. Corinne Elfassi Simon Resnik, LLP 15233 Ventura Blvd., Suite 250 Sherman Oaks, CA 91403 Cynthia A. Palm Prindle, Amaro, Goetz, Hillyard Barnes & Reinholz, LLP 310 Golden Shore Parkway, 4th Floor Long Beach, CA 90802 Attorneys for Plaintiff DAWN YOUNANI T:(818) 783-6251 F: (818 783-6253 Attorneys for Defendant THE ENCINO OUTPATIENT SURGERY CENTER, INC. T:M2) 2) 436-3946 F: 495-0564 22 23 24 25 26 27 28 Case 2:13-cv-05446-BRO-AGR Document 1 Filed 07/29/13 Page 106 of 106 Page ID #:108