Opinion
MDL Docket No. 1203, Civil Action No. 03-20511, 03-20399, 03-20452, 03-20397, 03-20449, 03-20474, 03-20475, 03-20472, 03-20401.
August 13, 2004
MEMORANDUM AND PRETRIAL ORDER NO.
Before the court are the motions of eight physician defendants in the nine above-captioned actions to dismiss plaintiffs' claims against them on the grounds that they are fraudulently joined as defendants. The motions to dismiss are before the undersigned as transferee judge in Multi-District Litigation ("MDL") 1203, the mass tort litigation involving Pondimin and Redux.
Defendants move to dismiss plaintiffs' claims against them pursuant to Rule 12(b)(2) and (6) of the Federal Rules of Civil Procedure. Technically, Rule 12(b)(1) of the Federal Rules of Civil Procedure is the proper ground upon which to seek dismissal for lack of subject matter jurisdiction. Any distinction between these two rules, however, is irrelevant for present purposes.
All of the plaintiffs are citizens of Texas. They have sued a number of diverse defendants, including Wyeth, the manufacturer of Pondimin and Redux, and phentermine manufacturers. Plaintiffs have also brought claims against the in-state physicians who allegedly prescribed Pondimin and/or Redux for them. All of the physicians are represented by the same counsel and have filed motions to dismiss on the same grounds. Because these motions present nearly identical legal and factual issues, we will address them together.
Plaintiffs' complaints were originally filed in various Texas state courts in May, 2003. Wyeth removed the actions to the appropriate Texas federal district courts on the basis that the physician defendants were fraudulently joined in an effort to defeat federal diversity jurisdiction. See 28 U.S.C. § 1332. Plaintiffs in these actions have not filed remand motions. In October, 2003, all of these cases were then transferred to this court as part of MDL 1203.
The physician defendants contend that plaintiffs' claims against them should be dismissed because plaintiffs have failed to pursue any argument that this court does not have jurisdiction over this matter by filing a remand motion. According to the physician defendants, plaintiffs had 45 days to file a motion to remand following this court's entry of Memorandum and Pretrial Order ("PTO") No. 3370 on March 24, 2004. The physician defendants argue that because plaintiffs failed to file remand motions within 45 days of PTO No. 3370, they have waived any argument to the jurisdiction of this court or any complaint that the physicians are not fraudulently joined as defendants.
We disagree with plaintiffs' reading of PTO No. 3370. Among other things, PTO No. 3370 provides that in those cases where a motion to remand is filed within a certain period of time, discovery is stayed while said motion remains pending. See PTO No. 3370 at §§ I and III.A. In those cases where a motion to remand is not filed within this period of time, a discovery initiation date is assigned. See id. § III.A. PTO No. 3370 does not provide that failure to file a motion to remand results in a waiver of a subject matter jurisdiction challenge. Accordingly, the physician defendants in these actions cannot rely on PTO No. 3370 to support their motions to dismiss.
In any event, defendants contend that we should dismiss plaintiffs' claims against them because dismissal is the appropriate remedy for a fraudulently joined defendant in a case that is removed to federal court. They rely on Wiles v. Capital Indemnity Corp., 280 F.3d 868, 871 (8th Cir. 2002), Griggs v. State Farm Lloyds, 181 F.3d 694, 698, 703 (5th Cir. 1999), andWater v. State Farm Mut. Auto. Ins. Co., 158 F.R.D. 107 (S.D. Tex. 1994), as well as this court's prior dismissals of fraudulently joined defendants in this litigation.
We previously addressed the fraudulent joinder of non-diverse physicians in PTO No. 3666 in Accadia, et al. v. Wyeth, et al., CIV.A. No. 03-20546 (E.D. Pa. June 29, 2004). For the same reasons set forth in Accadia, we find "no reasonable basis in fact or colorable ground" supporting plaintiffs' claims against the in-state physicians. Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).
As discussed in greater detail in Accadia, plaintiffs' claims against the in-state physicians are time barred because their complaints were clearly filed outside the two-year statute of limitations. See TEX. REV. CIV. STAT. ANN. ART. 4590, § 10.01 (West Supp. 2004). The statute began running when plaintiffs had "knowledge of facts which would cause a reasonable person to diligently make inquiry to determine his or her legal rights."Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 403 (5th Cir. 1998) (citations omitted). As we found in Accadia, the publicity surrounding the withdrawal of diet drugs put plaintiffs on inquiry notice of their claims in September, 1997 or, at the very latest by March, 2000, at the height of Wyeth's extensive media campaign.
In light of the massive publicity concerning the health risks associated with the use of diet drugs and the determination by this court after a full hearing that diet drug injuries are not latent, we find that plaintiffs in the exercise of reasonable diligence should have discovered their injuries at the very latest by March, 2000. Thus, they needed to have filed their complaints by March, 2002. Because they did not do so until May, 2003, their claims against the in-state physicians are clearly time-barred.
For the reasons set forth in Memorandum and PTO No. 3666 inAccadia, et al. v. Wyeth, et al., CIV.A. No. 03-20546 (E.D. Pa. June 29, 2004), we find and conclude that the physician defendants are fraudulently joined to avoid federal subject matter jurisdiction. Accordingly, we will grant the motions of these defendants to dismiss.
PRETRIAL ORDER NO.
AND NOW, this day of August, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of defendant Dr. Linda Welch (Doc. #17) to dismiss in Judy Ivy v. Wyeth, et al., CIV.A. No. 03-20511 (E.D. Pa.) is GRANTED;
(2) the motions of defendant Dr. Jay Mont (Doc. #14) to dismiss in Rosario Guerrero v. Wyeth, et al., CIV.A. No. 03-20452 (E.D. Pa.) and (Doc. # 4) in Sheryl D. Keeling v. Wyeth, et al., CIV.A. No. 03-20399 (E.D. Pa.) are GRANTED;
(3) the motion of defendant Dr. Larry Alan Richardson (Doc. #3) to dismiss in King Lane v. Wyeth, et al., CIV.A. No. 03-20397 (E.D. Pa.) is GRANTED;
(4) the motion of defendant Dr. Jimmy E. McCoy (Doc. #17) to dismiss in Dan M. Chilcutt v. Wyeth, et al., CIV.A. No. 03-20449 (E.D. Pa.) is GRANTED;
(5) the motion of defendant Dr. Vijay Koli (Doc. #3) to dismiss in Patricia A. Morris v. Wyeth, et al., CIV.A. No. 03-20474 (E.D. Pa.) is GRANTED;
(6) the motion of defendant Dr. Raymond Henry Hernandez, Jr. (Doc. #5) to dismiss in Stella Garcia v. Wyeth, et al., CIV.A. No. 03-20475 (E.D. Pa.) is GRANTED;
(7) the motion of defendant Dr. Salvador P. Baylan (Doc. #16) to dismiss in Lanelle Frye v. Wyeth, et al., CIV.A. No. 03-20472 (E.D. Pa.) is GRANTED; and
(8) the motion of defendant Dr. William H. Couch (Doc. #3) to dismiss in Paula J. Hunt v. Wyeth, et al., CIV.A. No. 03-20401 (E.D. Pa.) is GRANTED.