Opinion
MDL DOCKET NO. 1203, CIVIL ACTION NO. 03-20614.
September 14, 2004
MEMORANDUM AND PRETRIAL ORDER NO.
Before the court is the motion of plaintiffs Janice Bennett and Ronald Bennett to remand to the Circuit Court of Escambia County, Florida.
I.
Plaintiffs, citizens of Florida, have sued a number of diverse defendants, including Wyeth, the manufacturer of Pondimin and Redux, as well as the phentermine manufacturer Jones Medical Industries ("Jones"), a/k/a Abana Pharmaceuticals, Inc. Plaintiffs have also brought claims against non-diverse defendants: Eckerd Corporation ("Eckerd"), a retail pharmacy chain that allegedly filled plaintiffs' diet drug prescriptions; and Wyeth's sales representative Richard Coe ("Coe"). Plaintiff Janice Bennett asserts claims for negligence, strict liability (defective design and failure to warn), fraudulent misrepresentation, fraudulent concealment, and civil conspiracy. Plaintiff Ronald Bennett is a derivative claimant suing for loss of consortium. No federal claim for relief is alleged. The pending motion is before the undersigned as the transferee judge in Multi-District Litigation ("MDL") 1203, the mass tort litigation involving Pondimin and/or Redux.
Plaintiff Janice Bennett has exercised her right of intermediate opt-out under the Nationwide Class Action Settlement Agreement ("Settlement Agreement") in Brown v. American Home Products Corporation, CIV.A. No. 99-20593 (E.D. Pa. Aug. 28, 2000) (Pretrial Order ("PTO") No. 1415), which encompassed persons who ingested Wyeth's diet drugs Pondimin and Redux. See e.g., Settlement Agreement at § IV.(A), (B), and (D)(4). Under the Settlement Agreement, those who have exercised an intermediate or back-end opt-out may sue Wyeth for compensatory damages in the tort system rather than obtain benefits from the AHP Settlement Trust.
Plaintiffs originally filed their complaint in the Circuit Court of Escambia County, Florida on June 7, 2002, nearly five years after the diet drugs were withdrawn from the market in September, 1997. Wyeth was served with the original complaint on July 12, 2002. The state court action was originally captionedBennett, et al. v. Wyeth, et al. CIV.A. No. 02-001193. On June 6, 2003, Wyeth removed this action to the United States District Court for the Northern District of Florida, asserting that plaintiffs fraudulently joined defendants Eckerd, Coe, and Jones. On July 8, 2003, plaintiffs moved to remand this action under 28 U.S.C. § 1447(c). The Florida federal court deferred ruling on plaintiffs' motion, and the case was then transferred to this court as part of MDL 1203.
II.
Plaintiffs argue in favor of remand on the ground that Wyeth's removal notice was untimely under 28 U.S.C. § 1446(b), which requires that "the notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." In addition, "if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by defendant . . . of an amended pleading, motion, or order or other paper from which it may be first ascertained that the case is one which is or has become removable." Id.
Wyeth concedes that its removal notice was not filed within thirty days of the service of the compliant. Instead, Wyeth contends that its removal was timely because it removed this action within thirty days of receiving Eckerd's June 2, 2003 answers to Wyeth's interrogatories. According to Wyeth, it was not until receipt of those answers that it first "ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b). In any event, Wyeth maintains that plaintiffs' motion to remand on timeliness grounds is barred because said motion was filed too late.
Wyeth's notice of removal was filed on June 6, 2003. Plaintiffs did not file their motion to remand until July 8, 2003, more than thirty days thereafter. 28 U.S.C. § 1447(c) provides: "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after thefiling of the notice of removal under section 1446(a)." (emphasis added). Plaintiffs' objection to Wyeth's removal on the basis of untimeliness is a procedural, not a jurisdictional ground for remand. Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 614 (3d Cir. 2003) (citations omitted). Thus, "a case may not be remanded for failure to comply with the 30-day time limit absent a timely motion." Id.
Plaintiffs contend that the time for making their motion to remand under § 1447(c) was extended by three days by Rule 6(e) of the Federal Rules of Civil Procedure because Wyeth's removal notice was served on plaintiffs by mail. It reads: "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party . . . [by] mailing a copy to the last known address of the person served . . . 3 days shall be added to the prescribed period." Fed.R.Civ.P. 6(e). This rule does not help plaintiffs. "Rule 6(e) does not extend the thirty-day period of § 1447(c), as that rule applies only when a party is required to act within a prescribed period after service, not afterfiling." Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560, 566 (5th Cir. 1995) (emphasis added). Section 1447(c) requires that plaintiffs' file their remand motion within 30 days of the filing, not the service, of Wyeth's removal notice. Because plaintiffs filed their remand motion outside the 30-day limit, plaintiffs have waived all non-jurisdictional challenges to the removal, including their objection to Wyeth's untimeliness. Ariel, 351 F.3d at 614;see also Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir. 1989). Plaintiffs' remand motion was untimely. Accordingly, we need not determine whether Wyeth's removal notice was out of time.
We decline to follow the contrary holding in McPherson v. Peelle Co., 1995 WL 56600, CIV.A. No. 94-6280 (E.D. Pa. Feb. 6, 1995). Relying on Rule 6(e), the court upheld the timeliness of a remand motion filed more than 30 days after the notice of removal was filed. It extended the time to account for the three extra days for service. However, as noted above, 28 U.S.C. § 1447(c) explicitly requires a remand motion to be made within 30 days after the filing of a removal notice. The issue of service is
III.
We now turn to plaintiffs' jurisdictional objections to Wyeth's removal. This court addressed similar issues in Memorandum and PTO No. 3856 in Bankston, et al. v. Wyeth, et al., CIV. A. No. 03-20765 (E.D. Pa. Aug. 12, 2004), which is also part of the nationwide diet drug litigation. In Bankston, we laid out in detail the standards for removal based on diversity jurisdiction and fraudulent joinder. See id. Because we examined the same legal issues as they applied to nearly identical facts inBankston, we need not revisit them here. As in Bankston, plaintiffs contend that complete diversity does not exist as required by 28 U.S.C. § 1332. Similarly, plaintiffs here deny Wyeth's allegations of fraudulent joinder of Eckerd and the sales representative, the non-diverse defendants. For the same reasons set forth in Bankston, we find that plaintiffs have fraudulently joined Eckerd and sales representative Coe in an effort to defeat federal diversity jurisdiction.
With respect to plaintiffs' claims against Jones, the phentermine defendant in this case, we find that Jones is fraudulently joined for the same reasons set forth in PTO No. 2567 in Anderson v. Am. Home Prods., Co., 220 F. Supp. 2d 414 (E.D. Pa 2002).
IV.
We will deny plaintiffs' motion to remand this action to the Circuit Court of Escambia County, Florida and will dismiss the complaint as to Eckerd, Jones, and Coe.
PRETRIAL ORDER NO.
AND NOW, this day of September, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of plaintiffs to remand is DENIED; and
(2) all defendants in the above-captioned action except Wyeth and its related companies are DISMISSED.