Opinion
Master File (MDL No. 1348) 00 Civ. 2843 (LAK)
July 25, 2002
This Document Relates to: 02 Civ. 3116 (LAK), 02 Civ. 2686 (LAK), 02 Civ. 3115 (LAK). PRETRIAL ORDER NO. 89 (Motions to Remand)
The motions to remand in the above-captioned cases all are denied.
1. Berry v. Warner-Lambert Co., 02 Civ. 3116 (LAK). Plaintiff in Berry, a Mississippi citizen, has sued several Mississippi defendants — territory representatives, a pharmacy, and a physician — in addition to the manufacturer defendants. Plaintiff has failed to respond to the affidavits of the nondiverse territory representatives in which they state that they never called upon or discussed Rezulin with plaintiff's prescribing physician. The Court can conclude only that the allegations against the territory representatives lack any basis in fact and that the territory representatives therefore were joined improperly. See In re Rezulin Prods. Liab. Litig., 133 F. Supp.2d 272, 281 (S.D.N.Y. 2001) ("Rezulin I"). For the reasons stated in Rezulin I, the pharmacy defendant also was joined improperly. See id. at 288; see also In re Rezulin Prods. Liab. Litig., 168 F. Supp.2d 136, 141-42 (S.D.N.Y. 2001) ("Rezulin II"); Moore ex rel. Moore v. Mem. Hosp. of Gulfport, 2002 WL 535908 (Miss. Apr. 11, 2002). With respect to the nondiverse physician, the complaint fails sufficiently to allege the requisite knowledge on the part of the physician. See Rezulin I, 133 F. Supp.2d at 290, 295. Because the nondiverse defendants all were joined improperly, their presence is immaterial for diversity purposes. In consequence, complete diversity exists between all properly joined parties and plaintiff's motion to remand is denied.
2. Mousester Johnson v. Warner-Lambert Co., 02 Civ. 2686 (LAK). For the reasons stated in Rezulin I, plaintiffs have no reasonable chance to succeed in their claim against the nondiverse pharmacy defendant. See Rezulin I, 133 F. Supp.2d at 294. In consequence, the pharmacy has been joined improperly and its presence is immaterial for diversity purposes. The motion to remand therefore is denied.
3. Petty v. Warner-Lambert Co., 02 Civ. 3115 (LAK). In accordance with this Court's Pretrial Order No. 14, defendants briefed their opposition to plaintiff's remand motion in Petty on the last day of April, 2002. Plaintiff had two weeks in which to supply the Court with copies of the remand motion and supporting memoranda. Plaintiff has failed to do so. The Court treats plaintiff's failure as an admission that the nondiverse territory representative defendant has in fact fraudulently been joined. See, e.g., Pretrial Order No. 42. In consequence, the presence of the nondiverse defendants is immaterial for diversity purposes, and the motion to remand is denied.
SO ORDERED.