Opinion
C/A: 4:19-2069-DCC-TER
08-02-2019
Joseph Elliott Porter, Plaintiff, v. A.H.P. Settlement Trust, Defendant.
Report and Recommendation
This is a civil action filed by a pro se litigant. Pursuant to 28 U.S.C. § 636(b)(1), and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id. ; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999).
The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The "special judicial solicitude" with which a [court] should view such pro se complaints does not transform the court into an advocate.). Moreover, even when the filing fee is paid, the court possesses the inherent authority to ensure that a plaintiff has standing, that federal jurisdiction exists, and that a case is not frivolous. Ross v. Baron, 493 Fed. Appx. 405, 406 (4th Cir. 2012)(per curiam).
DISCUSSION
Federal district courts are vested with the inherent power to control and protect the administration of court proceedings. White v. Raymark Indus., Inc., 783 F.2d 1175, 1177 (4th Cir. 1986). The court has the power to consider sua sponte whether venue is proper. See Jensen v. Klayman, 115 Fed. Appx. 634, 635-36 (4th Cir. 2004)(per curiam).
Plaintiff's allegations revolve around issues regarding the Settlement Agreement of diet drug litigation. In 1997, certain diet drugs were removed from the market based on information suggesting a connection between the drugs and development of vascular heart disease. In 1997, the Judicial Panel on Multidistrict Litigation established an MDL proceeding in the Eastern District of Pennsylvania and transferred pending federal diet drug cases. Thousands of additional diet drug cases have since been transferred to the MDL Court as tag-along cases. In re Massachusetts Diet Drug Litig., 338 F. Supp. 2d 198, 199-200 (D. Mass. 2004).
In 1999, American Home Products reached a nationwide class action settlement agreement with the plaintiffs, which the MDL Court approved in August 2000. Brown v. Am. Home Prods. Corp. (In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig.), Nos. 1203, 99-20593, 2000 WL 1222042 (E.D. Pa. Aug.28, 2000). The plaintiff class was comprised of approximately six million people in the United States. The settlement agreement created a structure to compensate class members who were harmed by the diet drugs. "The United States District Court for the Eastern District of Pennsylvania has original jurisdiction over all provisions of the Settlement Agreement including the creation and operation of the Settlement Trust and the award of attorneys' fees and reimbursement of litigation expenses, pursuant to 28 U.S.C. § 1332. (Ex. P-3 at 130 of 148.)." In re Diet Drugs, at *33.
The MDL/Eastern District of Pennsylvania court found that the provisions regarding processing and administration of claims was fair and reasonable as it precisely defined the criteria necessary for a class member to qualify for benefits and "[w]ith respect to Matrix benefits, claims administrators are essentially bound to accept the certification of a qualified board-certified physician regarding a claimant's medical condition when that certification is accompanied by appropriate information on the claim form. These provisions serve to protect against the insertion of subjective judgment on the part of the claims administrators in making benefits determinations. Second, the audit and appeal procedures protect against fraud and the misuse of Settlement funds." In re Diet Drugs, * 63.
Plaintiff alleges he was appointed POA for the specific purpose of dealing with diet drug claim litigation by claimant Larrieu. (ECF No. 1-1 at 1). Plaintiff asserts the Defendant's auditing cardiologist stepped out of standard methodology to downgrade qualifying(under a higher paying Matrix) scan of moderate mitral regurgitation. Plaintiff alleges claims for monetary damages. Plaintiff alleges Defendant erroneously calculated settlement on Matrix B. (ECF No. 1 at 5). Plaintiff requests "the Judge either mandate the Trust [to] have Dr. Dent read the two minute echo or denote a Level III cardiologist of his/her choosing to determine the mitral valve regurgitation (M) percentage." (ECF No. 1-1 at 5). Plaintiff attaches a blank claim form, matrix information, and orders from the MDL court.
Transfer to the United States District Court for the Eastern District of Pennsylvania is appropriate in this case in the interests of justice. 28 U.S.C. § 1406(a). It is clear from the MDL court orders that the United States District Court for the Eastern District of Pennsylvania has original and exclusive jurisdiction over all provisions and operation of the Settlement Agreement. In re Diet Drugs, at *33. "Without affecting the finality of this Final Order and Judgment in any way, the court hereby retains continuing and exclusive jurisdiction over this action and each of the Parties, including AHP and the class members, to administer, supervise, interpret and enforce the Settlement in accordance with its terms; to supervise the operation of the Settlement Trust; to determine applications for and make reasonable awards of attorneys' fees and reimbursement of costs to Class and Subclass Counsel, the Plaintiffs' Management Committee, and others for work contributing to the common benefit of the class; and to enter such other and further orders as are needed to effectuate the terms of the Settlement." In re Diet Drugs, *72.
Plaintiff's allegations directly involve provisions of the Settlement Agreement regarding Matrix determinations and cardiologist audits, which are specifically mentioned in the MDL court's order, which contained the exclusive jurisdiction provision. Moreover, Plaintiff relies on attachments to the Complaint regarding the Matrix and claim forms, which further demonstrates how the allegations are directly related to matters that were ordered to be within the exclusive jurisdiction of the MDL court.
In the MDL context, where the concerns are similar, transfer served the interests of justice, judicial efficiency, and consistency, especially where the action is complex and the transferee district is "readily familiar with the underlying issues" and "has already spent considerable time and effort coordinating the pretrial proceedings." In re Welding Rod Prods. Liability Litigation, 406 F. Supp. 2d 1064, 1067 (N.D. Cal. 2005). Here, the Eastern District of Pennsylvania's MDL case regarding diet drugs has an active and open docket dating back to 1999 with over 5,000 filings made, with the most recent order being in May 2019. Such district court would be readily familiar with Plaintiff's allegations and the applicable provisions of the Settlement Agreement and has definitively spent 20 years coordinating such MDL action. Deferring to the MDL court is most appropriate where issues raised are likely to arise in other actions pending in the MDL court. See Freisthler v. DePuy Orthopaedics, Inc., 2011 WL 4469532, *1 (C.D. Cal. Sept. 21, 2011). The interests of justice weigh heavily in favor of transferring this action.
The undersigned recommends that the District Court of the Eastern District of Pennsylvania is the proper forum in which to adjudicate the claims raised in this Complaint.
RECOMMENDATION
Accordingly, it is recommended that this case be transferred in the interests of justice to the United States District Court for the Eastern District of Pennsylvania for further handling.
Because the court raised the issue of transfer of venue sua sponte, pursuant to Feller v. Brock, 802 F.2d 722, 729 n.7 (4th Cir.1986), Plaintiff must be given an opportunity to be heard before a final decision on transfer is rendered. See also Magic Toyota, Inc. v. Southeast Toyota Distribs, Inc., 784 F. Supp. 306, 321 (D.S.C.1992); Sadighi v. Daghighfekr, 36 F. Supp. 2d 267, 278 (D.S.C. 1999). Plaintiff's opportunity to file timely objections to this Report and Recommendation is considered to be the required opportunity to be heard under Feller before a final decision on transfer is rendered by the district judge.
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge August 2, 2019
Florence, South Carolina
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).