Opinion
Master File 00 Civ. 2843 (LAK).
April 26, 2002.
PRETRIAL ORDER NO. 80 (Reconsideration of Pretrial Order No. 32)
Plaintiffs in Clinton Andrew Johnson v. Warner-Lambert, Co., No. 01 Civ. 5778 (LAK), filed suit against the manufacturers of Rezulin as well as Mississippi pharmacies which allegedly dispensed Rezulin. Plaintiffs, themselves Mississippi residents, initially filed the suit in Mississippi state court. The case was removed to the United States District Court for the Southern District of Mississippi by the manufacturer defendants on the basis of diversity of citizenship and was transferred to this Court by the Judicial Panel on Multidistrict Litigation. Prior to the transfer, plaintiffs filed a motion to remand. In accordance with Pretrial Order No. 14 issued by this Court, the defendants identified this pending remand motion in papers filed on June 29, 2001. Pretrial Order No. 14 required plaintiff to serve and file reply papers, and to provide Chambers with courtesy copies of their moving papers, within 14 days. They failed to do so. In consequence, the Court deemed the remand motion abandoned and treated this abandonment as a factual admission by plaintiffs that the nondiverse pharmacies had been joined fraudulently. See Pretrial Order No. 32.
In "response" to Pretrial Order No. 32, the plaintiffs have forwarded to the Court a copy of a letter dated September 7, 2001 which they claim was sent to the Court along with two courtesy copies of their moving papers. Plaintiffs argue that the letter dated September 7, 2001, along with its enclosures, satisfied Pretrial Order No. 14. Although plaintiffs do not ask the Court to take any action, but rather thank the Court for its review of these documents, the Court will treat plaintiffs' "response" as a motion for reconsideration of Pretrial Order No. 32. The Court grants reconsideration, and upon reconsideration adheres to its previous decision that plaintiffs had abandoned their motion to remand.
See Letter from Kim Lambert, Paralegal, to Judge Kaplan (Oct. 23, 2001).
Pretrial Order No. 14 gave plaintiffs 14 days from June 29, 2001 to file their reply and provide the Court with copies of their moving papers. The materials sent along with the September 7, 2001 letter were not timely under Pretrial Order No. 14. Aside from the date, this fact is evidenced by the reference in the September 7, 2001 letter to Pretrial Order No. 29, which was issued August 16, 2001, more than a month after plaintiffs' papers were due. Furthermore, the docket sheets in the lead Rezulin case and in the individual Johnson matter do not reflect the filing of any reply papers by these plaintiffs.
Assuming arguendo that the materials plaintiffs have forwarded to the Court constituted compliance with Pretrial Order No. 14, the motion to remand would be denied. As this Court previously has held, there is no reasonable possibility that plaintiffs will succeed in holding the Mississippi pharmacies liable. See, e.g., In Re Rezulin Prods. Liab. Litig., 133 F. Supp.2d 272, 288-90 (S.D.N.Y. 2001). The citizenship of the pharmacies, therefore, is immaterial for diversity purposes and this Court's exercise of jurisdiction over this action is proper.
The Court adheres to its decision in Pretrial Order No. 32.
SO ORDERED.