Opinion
Mdl Docket No. 1203, Civil Action No. 04-23798.
November 8, 2004
MEMORANDUM AND PRETRIAL ORDER NO.
Before the court is the motion of plaintiff Joan Archer to remand to the Circuit Court of Hillsborough County, Florida.
Plaintiff, a citizen of Florida, has sued Wyeth, the manufacturer of Pondimin and Redux, a related company, Wyeth Pharmaceuticals, as well as Eckerd Corporation ("Eckerd"), a retail pharmacy chain that allegedly marketed, sold, promoted, and/or distributed Wyeth's diet drugs to plaintiff. Plaintiff has also named as defendants sales representatives Eric J. Perham, Donna V. Prophitt, and Allen J. Brzozowski. Wyeth and its related company are of diverse citizenship while Eckerd and the sales representatives are not. Plaintiff asserts claims for strict product liability, negligence, fraud, and negligent misrepresentation. 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 has exercised her right of intermediate or back-end 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.
Plaintiff originally filed her complaint in the Circuit Court of Hillsborough County, Florida on November 25, 2003, more than six years after the diet drugs were withdrawn from the market in September, 1997. On December 18, 20903, Wyeth removed the case to the United States District Court for the Middle District of Florida, asserting that plaintiff fraudulently joined Eckerd and the sales representatives. Thereafter, plaintiff moved to remand this action under 28 U.S.C. § 1447(c). The Florida federal court deferred ruling on plaintiff's motion, and the case was then transferred to this court as part of MDL 1203.
Wyeth contends that remand is inappropriate because Eckerd and the sales representatives are fraudulently joined. This court addressed similar issues in Memorandum and PTO No. 3856 inBankston, 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, plaintiff argues that complete diversity does not exist as required by 28 U.S.C. § 1332. Similarly, plaintiff here denies Wyeth's allegations of fraudulent joinder of Eckerd and the sales representatives, the non-diverse defendants. For the same reasons set forth in Bankston, we find that plaintiff has fraudulently joined Eckerd and the sales representatives in an effort to defeat federal diversity jurisdiction.
We will deny plaintiff's motion to remand this action to the Circuit Court of Hillsborough County, Florida and will dismiss the complaint as to all defendants except Wyeth and Wyeth Pharmaceuticals.
PRETRIAL ORDER NO.
AND NOW, this day of November, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of plaintiff to remand is DENIED; and
(2) all defendants except Wyeth and Wyeth Pharmaceuticals are DISMISSED.