Opinion
Civil Action No. 02-3146
January 28, 2003
ORDER AND REASONS
I. BACKGROUND:
The Plaintiffs, Rose Hitchen and James Headspeth, filed this lawsuit in the 21st Judicial District Court for the Parish of Tangipahoa, State of Louisiana on September 20, 2002. The Petition for Damages seeks damages allegedly caused by Plaintiffs' use of the diet drugs Pondimin, Redux, and/or Phentermine. All of Plaintiff's claims are based on violations of Louisiana State Law. The Defendants, Wyeth Company, et al., had the matter removed to this Court on October 17, 2002. The Defendants based the removal on diversity grounds under 28 U.S.C. § 1332, 1441 et seq. because the Phentermine Defendants, 3 of which did not consent to removal, had been fraudulently joined.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments of Plaintiffs in Support of Motion to Remand:
1. Defendants have Failed to Establish any Defendant was Fraudulently Joined:
The Plaintiffs argue that the action should be remanded pursuant to 28 U.S.C. § 1447(c) because the Defendants' removal was improper. The case should be remanded to the 21st Judicial District Court for the Parish of Tangipahoa, State of Louisiana because the Defendants failed to establish that any of the Defendants were fraudulently joined. The Defendants have not asserted that there is no possibility of recovering from the Phentermine Defendants. Furthermore, the Defendants have not asserted that the Plaintiffs have fraudulently pled any jurisdictional fact and therefore have failed to carry its burden to prove fraudulent joinder. Furthermore, the scope of inquiry for purposes of removal based on fraudulent joinder is limited.
The Plaintiffs also argue that they have successfully established causes of action against the Phentermine Defendants under Louisiana Law. The Plaintiffs claim damages under theories of strict liability, strict products liability, failure to adequately warn, negligence, redhibition, fraudulent misrepresentation, and breach of implied/express warranties. The Plaintiffs have also pled with particularity that the Defendants, including the Phentermine Defendants, entered into a conspiracy to conceal the adverse effects of the diet drugs.
The Plaintiffs argue in the alternative that the Court, even if it finds that any of the Defendants were fraudulently joined, must remand because the issue of prescription is not to be decided by this Court. Under Louisiana Law, the Court may not hear any issue that goes to the merits of the case, such as prescription, before jurisdiction is established. When prescription is raised as an affirmative defense, it raises a question of fact and law that must be answered in favor of the Plaintiffs for remand purposes. Additionally, the doctrine of contra non valentem suspends the running of prescription in certain circumstances and those circumstances are present here.
2. The Defendants are not in Compliance with the Rule of Unanimity:
The Plaintiffs argue that removal is not proper because not all of the Defendants have consented to the removal. The Rule of Unanimity, 28 U.S.C. § 1446, requires all Defendants to give unambiguous consent to the removal before it can be effected. The Defendants have not received the unanimous consent of all Defendants and the case, therefore, should be remanded.
B. ARGUMENTS OF THE DEFENDANTS IN OPPOSITION TO MOTION TO REMAND:
1. Removal is Proper on Diversity Grounds because Phentermine Defendants were Fraudulently Joined:
The Defendants argue that the Phentermine Defendants' failure to consent to removal should not render the removal improper because the Defendants were fraudulently joined. First, the Phentermine Defendants are fraudulently joined based on a recent MDL Court case, Age Intervention. In Age, the MDL Court held that the five-year history of this litigation establishes as a matter of law that Plaintiffs cannot have a good faith intention to seek judgment against Phentermine Defendants and that the Defendants are therefore fraudulently joined. Following the MDL Court's decision will serve objectives of judicial efficiency and consistency which underlie the MDL process. In addition to the fraudulent joinder, the MDL court found substantial evidence that plaintiffs and Phentermine defendants throughout the United States have made agreements whereby the defendants would be dismissed if they agreed with the plaintiffs not to consent to the removal. Second, the Plaintiffs have no reasonable possibility of establishing their claims against the Phentermine Defendants under Louisiana Law. The five-year history of litigation proves that, as a matter of law, the Plaintiffs cannot establish that the Phentermine Defendants' products proximately caused the Plaintiffs' injuries as required under Louisiana Law. The Plaintiffs's claims for civil conspiracy are likewise not actionable because a claim for civil conspiracy against a manufacturer is not one of the theories of liability recognized under the LPLA and is not cognizable under Louisiana Law. Third, even if Plaintiffs were able to establish claims against the Phentermine Defendants, the Plaintiffs are unable to identify the manufacturer of the phentermine they allegedly ingested. The Plaintiffs, therefore, are unable to show an essential element of tort claims against manufacturers under Louisiana Law. The Plaintiff's claims are insufficient as a matter of law and should be disregarded by the court. Fourth, the claims against the Phentermine Defendants are barred by the one-year prescriptive period for tort claims. La. Civ. Code art. 3492. Pondimin was withdrawn from the market in September 1997 and the Plaintiffs could not have ingested the diet drugs for any significant period of time after that date. The Plaintiffs' Petition for Damages was not filed until September of 2002. The Plaintiffs have not attempted to explain why their claim is not prescribed. Even if the Plaintiffs alleged that they did not discover their injuries until a year before filing the action, that is not the relevant standard. Under Louisiana Law, the prescriptive period runs from the time the Plaintiff discovered or should have discovered the injuries. Because of the nature of the litigation, the Plaintiffs were on inquiry notice of their claims well before one year of filing the present suit in September 2002. There are two recent United States District Court cases that held as a matter of law that diet drug Plaintiffs had constructive knowledge prior to March 2000. Even if the discovery rule applied, the application of the discovery rule does not involve an inquiry into subjective facts that might warrant remand. The Phentermine Defendants, therefore, have been fraudulently joined and their failure to consent to the removal should not defeat the diversity jurisdiction.
2. The Effect of any Non-Consent Should not be Multiplied to All Plaintiffs:
The Defendants argue that, even if the Court were to find that one Plaintiff asserts valid claims against one or more of the Phentermine Defendants, the Court should not permit the joinder of multiple Plaintiffs in the Petition to defeat the removal with regard to the additional Plaintiffs. The aggregation of multiple Plaintiffs in a single petition constitutes an apparent ploy by which Plaintiff's counsel seeks to multiply the effect of the Phentermine Defendants' non-consent to avoid removal of all the claims. If the Court finds that the failure of consent of some of the Phentermine Defendants has jurisdictional significance, the Court should sever the claims of each Plaintiff and only remand the claims of the Plaintiffs who ingested the phentermine marketed by those Defendants who did not consent.
III. LAW AND ANALYSIS:
A. Law on Remand/Fraudulent Joinder:
A motion to remand a case to state court on the basis of any defect other than lack of subject matter jurisdiction must be made within thirty days after the filing of the notice of removal. 28 U.S.C. § 1447(c). In the case at hand, the Defendants filed their notice of removal on October 17, 2002 and the Plaintiffs filed the motion to remand on November 13, 2002. As the plaintiff's motion was timely filed, the Court will address the issues presented therein.
"The burden of persuasion placed upon those who cry `fraudulent joinder' is indeed a heavy one." B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981); Ford, et al. v. Elsbury, et al., 32 F.3d 931, 935 (5th Cir. 1994). Where charges of fraudulent joinder are used to establish federal jurisdiction, the removing party has the burden of proving the claimed fraud. Dodson v. Spiliada Maritime Corp., et al., 951 F.2d 40, 42 (5th Cir. 1992). In order to establish that a plaintiff fraudulently joined an in-state defendant so as to preclude exercise by a federal court of diversity jurisdiction, the removing party must show that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff's pleadings of jurisdictional facts. Dodson, 951 F.2d at 42; B., Inc., 663 F.2d at 549.
Claims of fraudulent joinder should be resolved in a summary judgment-like procedure whenever possible. Sid Richardson Carbon Gasoline Co. v. Interenergy Resources, Ltd., 99 F.3d 746 (5th Cir. 1996). Although the district court may "pierce the pleadings" to examine affidavits and other evidentiary material, it should not conduct a full evidentiary hearing on questions of fact, but rather should make a summary determination by resolving all disputed facts in favor of the plaintiff. Id. at 751; Ford, 32 F.3d at 935; Dodson, 951 F.2d at 42.
B. The Court's Analysis:
The Defendants have carried their burden of proving that the Phentermine Defendants have been fraudulently joined because there is no possibility that the Plaintiffs could state a cause of action against the Phentermine Defendants in state court. This Court must recognize and observe the decision of the MDL Court in regard to the Phentermine Defendants. Therefore, The Plaintiff's argument that the Rule of Unanimity, 28 U.S.C. § 1446(a), is not satisfied fails. The Plaintiff argues that the Phentermine Defendants did not join in the removal action and the removal was therefore improper. The consent of these Defendants, however, is unnecessary because they have been fraudulently joined. The Phentermine Defendants were fraudulently joined because the Plaintiff had no real intent to pursue a claim against the Defendants. The Plaintiff could not have any real intent to pursue a claim against the Phentermine Defendants because there has been no reliable evidence to suggest phentermine causes VHD or PPH. (See Anderson v. American Home Products Corporation, Civil Action 01-20182, Eastern District of Pennsylvania ("The Age Intervention"). The Plaintiff, therefore, could not have any real intent to pursue the Phentermine Defendants. Alternatively, the Plaintiffs' claims against the Phentermine Defendants have prescribed. The Court can determine that the claims have prescribed without examining the merits of the case. The claims, therefore, have been properly removed to this Court.
Accordingly,
IT IS ORDERED that the Motion to Remand of the Plaintiffs, Rose Hitchen and James Headspeth, be and the same is hereby DENIED.