-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1462
No. 92-1771
RAFAELA TRINIDAD-DELGADO, ET AL.,
Plaintiffs, Appellants,
v.
SK&F LAB COMPANY, ET AL.,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Stahl, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Skinner,* Senior District Judge.
_____________________
____________________
Luis Angel Lopez Olmedo for appellants.
_______________________
Gregory T. Usera with whom Ramon L. Velasco and Goldman Antonetti
________________ _________________ _________________
Ferraiuoli & Axtmayer were on brief for appellees.
_____________________
____________________
April 29, 1993
____________________
_____________________
* Of the District of Massachusetts, sitting by designation.
SKINNER, Senior District Judge.
______________________
This appeal is from a summary judgment of
dismissal for lack of subject matter jurisdiction. The
plaintiffs brought an action in the District Court of the
District of Puerto Rico to recover damages from the
defendants for injuries to the plaintiff Rafaela Trinidad
Delgado resulting from exposure to cimetidine hydrochloride,
a toxic substance used in the manufacture of Tagamet.
Tagamet was manufactured by the plaintiff's employer. The
other plaintiffs are Mrs. Trinidad's husband and son. The
original defendants were "SK&F Lab Co., Smith Kline and
French - U.S., Smith Kline Beecham Mellon and or other Smith
Kline Corporation family and it insurers [sic]."
Without challenge by the parties, the relationship
of the various Smithkline corporations was found by the
district judge to be as follows:
Mrs. Trinidad's employer, originally called SK&F
Lab Co., merged with SK&F Co. to form Smithkline Beecham
Pharmaceutical Co., a Delaware corporation with its
principal place of business in Puerto Rico. (This
-2-
2
corporation and its predecessors were referred to
collectively by the court below as "Pharmco," and we will do
the same.) Pharmco is a subsidiary of SKB, Puerto Rico,
Inc., a holding company incorporated in Delaware, and with
its principal place of business there. SKB, Puerto Rico,
Inc., is itself a subsidiary of Smithkline Beecham
Corporation (formerly Smithkline Beckman Corporation), which
is a Pennsylvania corporation having its principal place of
business in Pennsylvania. There is no such corporation as
the named defendant, Smithkline Beecham Mellon. There are
two other corporations referred to by the district court,
Smithkline and French International Company and its wholly
owned subsidiary, Smithkline & French Interamerican
("Interamerican"), a Delaware corporation with its principal
place of business in Puerto Rico. Interamerican is engaged
in the sale and distribution of products manufactured by
Pharmco.
Several months after the case was filed, and after
the original defendants had filed their answer, the
plaintiff moved to amend the complaint by including all of
the above named Smithkline corporations as defendants. The
record reveals neither allowance of this motion nor service
on the added defendants. Nevertheless, after the filing of
-3-
3
this motion, all parties and the court treated these
corporations as properly before the court, at least for the
purpose of presenting their motions for summary judgment on
jurisdictional grounds and to dismiss for failure to state
claims against certain of the defendants. Counsel never
filed an answer with respect to the added defendants, but
did file a motion to dismiss or for summary judgment on
behalf of all named defendants. For purposes of this
appeal, we too will treat all parties as properly before the
court.
About a month after the motion to dismiss or for
summary judgment was filed by the defendants, the plaintiffs
filed a motion under Fed. R. Civ. P. 41(a) for voluntary
dismissal of Pharmco and Interamerican, the two corporations
having their principal places of business in Puerto Rico.
This motion was filed for the avowed purpose of creating
complete diversity of citizenship, the lack of which had
been cited by the defendants as a basis for dismissal for
lack of subject matter jurisdiction. The plaintiffs did not
specify upon which paragraph of Rule 41(a)1 they were
____________________
1 The pertinent provisions of Rule 41(a) are as follows:
Rule 41. Dismissal of Actions
Rule 41. Dismissal of Actions
(a) Voluntary Dismissal: Effect Thereof.
(a) Voluntary Dismissal: Effect Thereof.
-4-
4
relying. The motion was referred to a magistrate judge, who
endorsed the motion, "Denied. Rule 41(a)(1)(ii)." The
magistrate judge apparently did not consider whether the
motion should be granted on conditions under Fed. R. Civ. P.
41(a)(2).
The district judge thereafter entered a judgment
for the defendants upon the allowance of their motion to
dismiss or for summary judgment. He ruled (1) that since
the motion under Rule 41(a) had been properly denied under
Rule 41(a)(1), the two local corporations were still in the
case, so that subject matter jurisdiction failed for lack of
diversity; and (2), alternatively, that the complaint failed
____________________
(1) By Plaintiff; by Stipulation.
(1) By Plaintiff; by Stipulation.
Subject to the provisions of Rule 23(e),
of Rule 66, and of any statute of the
United States, an action may be
dismissed by the plaintiff without order
of court (i) by filing a notice of
dismissal at any time before service by
the other party of an answer or of a
motion for summary judgment, whichever
first occurs, or (ii) by filing a
stipulation of dismissal signed by all
parties who have appeared in the action.
. . .
(2) By Order of Court. Except as
(2) By Order of Court.
provided in paragraph (1) of this
subdivision of this rule, an action
shall not be dismissed at the
plaintiff's instance save upon order of
the court and upon such terms and
conditions as the court deems proper.
-5-
5
to state a claim against Pharmco and Interamerican, and
there was no personal jurisdiction over the other Smithkline
corporations. This appeal followed.
It would appear from the magistrate judge's
endorsement that the magistrate intended to determine the
motion. This was error, because under 28 U.S.C.
636(b)(1)(A) and (B), a motion to dismiss may not be
referred for determination, but only for report and
recommendation to the district judge. Accordingly we will
treat the magistrate judge's endorsement as a recommendation
to the district judge. The magistrate judge was correct in
recommending denial of the motion for voluntary dismissal
under Rule 41(a)(1), since a motion for summary judgment had
been filed and the parties had filed no stipulation.
The plaintiffs may well have been entitled to
dismiss non-diverse parties for the purpose of establishing
diversity jurisdiction under Rule 41(a)(2), absent any
showing of prejudice to the defendants2. Newman-Green,
_____________
____________________
2 The defendants' argument that Pharmco and
Interamerican were indispensable parties is totally
insupportable on the record. Mrs. Trinidad Delgado had
received workers' compensation from the State Insurance
Fund, which, as the defendants correctly argued, is a
complete defense to a direct claim against her employer, of
which Pharmco is the corporate successor. 11 L.P.R.A. 21.
Moreover, it is difficult to understand how Interamerican,
which was a sales organization, had anything to do with the
-6-
6
Inc. v. Alfonzo-Larrain, 490 U.S. 826, 833 (1989); Sweeney
________________________ _______
v. Westvaco Co., 926 F.2d 29, 41 (1st Cir.), cert. denied,
_______________ ____________
112 S. Ct. 274 (1991); cf. Leroux v. Lomas & Nettleton Co.,
_______________________________
626 F. Supp. 962, 965 (D. Mass. 1986).
The plaintiffs never sought reconsideration by the
district judge of the magistrate's recommendation to deny
plaintiffs' voluntary motion to dismiss, however. Under the
Local Rules of Puerto Rico 510.1, an appeal from a
determination by a magistrate judge must be filed within ten
days, or the determination becomes a ruling of the court;
but under Local Rule 501.2(A), an objection to a
recommendation and report must also be filed within ten
days, and "[f]ailure to file objections within the specified
time waives the right to appeal the District Court's order."
Not only did the plaintiffs fail to follow the
local rule, they failed to honor the rationale behind it,
which as the Supreme Court pointed out in Thomas v. Arn, 474
_______________
U.S. 140, 147-48 (1985), is to
enable [ ] the district judge to focus
attention on those issues -- factual and
legal -- that are at the heart of the
parties' dispute. The [ ] rule, by
____________________
manufacturing process in which Mrs. Trinidad Delgado was
injured.
-7-
7
precluding appellate review of any issue
not contained in objections, prevents a
litigant from 'sandbagging' the district
judge by failing to object and then
appealing.
As we have said, the magistrate judge's decision
must be treated as no more than a recommendation to the
district judge. Because of the plaintiffs' complete failure
to protect their rights under Local Rule 510.2(A) (or under
Rule 501.1 either, for that matter), the ruling of the
district judge is not appealable. Keating v. Secretary of
________________________
Health and Human Serv., 848 F.2d 271, 275 (1st Cir. 1988).
______________________
For purposes of this appeal, therefore, Pharmco and
Interamerican remain parties in the case.
Given this state of the record, the court's ruling
that there was no subject matter jurisdiction must stand.
The uncontradicted affidavits submitted by the defendants
firmly establish that Puerto Rico was the principal place of
business of both Pharmco and Interamerican. For purposes of
diversity, they are citizens of Puerto Rico, 28 U.S.C.
1332(c)(1), as are the plaintiffs. Absent complete
diversity of citizenship, there is no basis for subject
matter jurisdiction.
There is no need to examine the court's alternate
grounds for dismissal.
-8-
8
The judgment of dismissal is affirmed. The
appellees shall recover their costs.
-9-
9
Document Info
Docket Number： 92-1462
Filed Date： 4/29/1993
Precedential Status： Precedential
Modified Date： 9/21/2015