Opinion
Master File (MDL No. 1348) 00 Civ. 2843 (LAK)
April 5, 2002
Plaintiffs in the above captioned cases have failed to comply with Pretrial Order 14. Their motions to remand are disposed of as follows:
1. While plaintiffs' failures to comply with Pretrial Order No. 14 cannot act to waive any defects in the subject matter jurisdiction of this Court, they may be treated as admissions of fact that render this Court's jurisdiction over the actions proper under 28 U.S.C. § 1332. See Pretrial Order Nos. 17, 32 and 42. The Court deems these failures admissions that defendant pharmacies, territory representatives, and physicians have been joined fraudulently. Accordingly, for the reasons stated in Pretrial 14, and pursuant to Rule 16 of the Federal Rules of Civil Procedure, the citizenship of the nondiverse parties is immaterial and the motions to remand in Johnson v. Warner-Lambert, Co., 01 Civ. 10571, Mosley v. Warner-Lambert Co., 01 Civ. 11812, Cox v. Parke-Davis, 01 Civ. 11813, Todoroff v. Warner-Lambert Co., 02 Civ. 1694, Alto v. Parke-Davis, No. 02 Civ. 1711, Bates v. Safeway, Inc., et al., 02 Civ. 1712, Henson v. Warner-Lambert Co., 02 Civ. 1718, and Abudei v. Warner-Lambert Co., No. 02 Civ. 1724, are denied.
Johnson v. Warner-Lambert, Co., 01 Civ. 10571; Cox v. Parke-Davis, 01 Civ. 11813; Henson v. Warner-Lambert Co., 02 Civ. 1718; Abudei v. Warner-Lambert Co., No. 02 Civ. 1724.
Johnson v. Warner-Lambert, Co., 01 Civ. 10571; Mosley v. Warner-Lambert Co., 01 Civ. 11812; Todoroff v. Warner-Lambert Co., 02 Civ. 1694.
Alto v. Parke-Davis, No. 02 Civ. 1711; Bates v. Safeway, Inc., et al., 02 Civ. 1712.
2. Despite plaintiffs' failures to comply with Pretrial Order No. 14, this Court must satisfy itself that it has jurisdiction over each action. See Mt. Healthy City School District Bd. of Ed. v. Doyle, 429 U.S. 274, 278 (1977). The Court is not satisfied in Taylor v. Pfizer Inc., 01 Civ. 9821.
In Taylor, plaintiffs sued a nondiverse physician but failed to file an expert report within 180 days of filing suit as required by Texas law. As this Court previously has noted, absent certain exceptions not present in this case, a Court would be required to dismiss the claim against the physician upon the motion of the physician. In Re Rezulin Prods. Liab. Litig., 168 F. Supp.2d 136, 148-50 (S.D.N.Y. 2001) ("Rezulin II"). But Taylor was removed to federal court before the physician filed such a motion. In consequence, at the time of removal, there was a reasonable possibility that plaintiffs would succeed in their claims against him. By abandoning their motion to remand, plaintiffs admitted to no facts that render this Court's exercise of jurisdiction over this case proper. Accordingly, the motion to remand in Taylor v. Pfizer Inc., 01 Civ. 9821, is granted.
3. Nor is the Court satisfied of its jurisdiction in Baker v. Warner-Lambert Co., No. 01 Civ. 11878. The Court treats plaintiffs' abandonment of their motion to remand as an admission that the nondiverse pharmacy defendant was fraudulently joined. However, one plaintiff, Betty Campbell, asserts an additional claim against a nondiverse physician. Her presence therefore destroys complete diversity. For the reasons stated in Rezulin II, 168 F. Supp.2d at 144-48, plaintiff Betty Campbell's action is severed from the actions of her co-plaintiffs pursuant to Rule 21 of the Federal Rules of Civil Procedure and her motion to remand is granted. The motions to remand of the remaining plaintiffs are denied.
4. In Alvarado-Umanzor v. Warner-Lambert Co., 02 Civ. 1720, and Albright v. Warner-Lambert Co., 02 Civ. 1722, the judge in the transferor court considered and at least partially disposed of motions to remand. In each case, he issued an order severing two plaintiffs who had claims against nondiverse defendants and remanding their actions to state court, but the orders do not contain a disposition of the motion to remand as to the other plaintiffs. Because the transferor court mentioned only the plaintiffs as to whose actions it found remand appropriate, the motion impliedly was denied as to the other plaintiffs. Nevertheless, it remained open on the Docket Sheet of each case in the transferor court.
Plaintiffs in both cases have failed to comply with Pretrial Order No. 14, and the Court treats this as an admission that the claims of the remaining plaintiffs against the nondiverse defendants lack any reasonable basis in fact. In consequence, to the extent they were not disposed of by the transferor court, the motions to remand in Alvarado-Umanzor v. Warner-Lambert Co., 02 Civ. 1720, Albright v. Warner-Lambert Co., 02 Civ. 1722, are denied.
SO ORDERED.