DocketNumber: Nos. MDL 403CV1507WRW, MDL 405CV01710
Citation Numbers: 417 F. Supp. 2d 1058
Judges: Wilson
Filed Date: 2/28/2006
Status: Precedential
Modified Date: 11/26/2022
ORDER
Pending is Plaintiffs Motion to Remand (Doc. No. 12). Defendants have responded (Doc. No. 18). Oral argument was heard at the status conference on January 27, 2006.
I. BACKGROUND
Originally filed in Missouri state court, this case includes multiple plaintiffs from numerous states and multiple defendants. Defendants removed the case to federal court, claiming fraudulent misjoinder. Plaintiffs seek to remand to Missouri state court for lack of diversity jurisdiction.
This case originally involved 41 plaintiffs and 22 defendants. Although Plaintiffs are citizens of 14 different states, the only non-diverse parties are from Arkansas, Florida, Georgia, and Rhode Island — notably, none of the non-diverse defendants are from Missouri, which is the state where this case wag filed. Defendants assert that all non-diverse, non-Missouri Plaintiffs were fraudulently added to prevent federal diversity jurisdiction.
II. DISCUSSION
As I have mentioned before, these types of multi-plaintiff and multi-defendant pleadings are nothing new to MDL litigation.
This case must be analyzed under the Missouri permissive joinder statute. That statute, which is identical to Rule 20(a) of the Federal Rules of Civil Procedure, permits plaintiffs to join their claims in one cause of action if the claims: (1) arise out of the same transaction or occurrence and (2) present a common question of law or fact.
Plaintiffs argue that their claims arise out of the same transaction or occurrence and there are common questions of law and1 fact, but I am not persuaded. Plaintiffs fail to meet either part of the rule. The only thing common among Plaintiffs is that they took an HRT drug— but not even the same HRT drug. Plaintiffs are residents of different states and were prescribed different HRT drugs from different doctors, for different lengths of time, in different amounts, and suffered different injuries.
III. EDITORIAL
In view of the numerous rulings critical of the type of pleading involved here, I find it puzzling that plaintiffs’ counsel continue to improperly join plaintiffs in multi-district litigation (pharmaceutical cases particularly). This practice is not invariably contrary to joinder, venue, and jurisdiction rules, but for obvious reasons it has been questioned by several MDL courts.
At the same time, I am puzzled by the failure of defendants to forthwith address the joinder/misjoinder issues in the original court. I agree with Judge Perry, of the Eastern District of Missouri, who has noted that it would be a more efficient
CONCLUSION
Based on the findings of fact and conclusions of law above, Plaintiffs’ Motion to Remand is DENIED. Accordingly, under Rule 21 of the Federal Rules of Civil Procedure, Plaintiffs
(1) dropped plaintiffs have 30 days from the date of this Order to file a new complaint, in a proper venue;
(2) within 30 days of the date of this order, dropped plaintiffs must notify this Court, in writing (fax letter is sufficient), that a new civil action has been filed in the proper venue;
(3) dropped plaintiffs who do not file new civil actions within the 30 day period will be dismissed without prejudice;
(4) after the expiration of the 30 day time period or upon receipt of written notification of refiling by dropped plaintiffs, this Court will enter an order dismissing all dropped plaintiffs from this case;
(5) dropped plaintiffs are deemed to have ongoing MDL No. 1507 actions in this Court for all purposes during the time period between the date of this Order and the filing of their new complaint;
(6) for the application of statutes of limitations, laches, or other time bar laws, the filing date of a newly filed action pursuant to this Order will be deemed to relate back to the date that the dropped plaintiff originally filed her complaint — insofar as the new complaint alleges only the claims alleged in the original complaint and joins only the defendants named (or fewer) in the original complaint or the successors of such original defendants;
(7) within 20 days of the date that dropped plaintiffs are dismissed from this case, remaining plaintiffs must cure their complaint.
The current complaint fails to link any of the plaintiffs directly with any of the defendants, other than broad boilerplate language. As an example, the complaint states that each plaintiff was “prescribed and ingested drugs manufactured, marketed, and sold by one or more the Drug Defendant and/or Pharmacy Defendants.” Such a broad claim fails to put the defendants on notice of which plaintiffs are alleging causes of action against them, and, therefore, does not appear to meet even the liberal requirements of the Federal Rules of Civil Procedure.
Accordingly, the amended complaint must remove all dropped plaintiffs and must contain allegations specifying which drugs each plaintiff took and, specifically,
. See In re Prempro Products Liability, 4:03CV01507-WRW (E.D.Ark. August 31, 2004).
. In re Diet Drugs Products Liability, No. Civ. A. 98-20478, 1999 WL 554584, at *5 (E.D.Pa. July 16, 1999).
. In re Baycol Products Liability Litigation, MDL No. 1431 at 4 (D.Minn. September 12, 2003). See also In re Rezulin Products Liability Litigation, 168 F.Supp.2d 136, 148 (S.D.N.Y.2001); In re Diet Drugs, 1999 WL 554584, at *5 (dropping the misjoined plaintiffs under Fed.R.Civ.P. 21).
. Mo. Sup.Ct. R. 52.05.
. In re Diet Drugs Products Liability, 294 F.Supp.2d 667, 673 (E.D.Pa.2003).
. Plaintiffs assert that they allege the same injury — breast cancer. However, not even that is the same, since Plaintiffs have alleged numerous types of breast cancer — lobular, ductal, mixed lobular-ductal, in-situ carcinoma, etc.
. See In re Orthopedic Bone Screw Products Liability, 1995 WL 428683 (E.D.Pa. July 17, 1995) (severing misjoined plaintiffs under similar circumstances); In re Rezulin, 168 F.Supp.2d at 145 (same); In re Diet Drugs, 1999 WL 554584, at *4 (same); In re BAYCOL PRODUCTS LITIGATION, 2003 WL 22341303 (D.Minn.2003) (same).
. In re BAYCOL PRODUCTS LIABILITY LITIGATION, 2002 WL 32155269, at *2 (D.Minn. July 5, 2002).
. In re Orthopedic Bone Screw, MDL 1014; In re Norplant, MDL 1038; In re Diet Drugs, MDL 1203; In re Rezulin, MDL 1348; In re BAYCOL, MDL 1431; and In re Welding Rod Products Liability Litigation, MDL 1535.
. Used in this context, "shall” does not violate B. Gamer's rules.
. Bowling v. Kerry, Inc., 406 F.Supp.2d 1057, 1061 (E.D.Mo.2005) ("Federal courts, of course, could easily avoid this confusing standard if a removing party challenged mis-joinder in state court before seeking removal. Requiring misjoinder to be addressed in state court does not impair the ability of a defendant to remove an action following the dismissal or severance of the improperly joined party.”).
. Although I believe that most, if not all, of the other plaintiffs in this case are misjoined, I am only concerned with those plaintiffs who destroy diversity jurisdiction. Whether the diverse plaintiffs are properly joined is an issue for the Missouri transferor court to address after this case is remanded by the Judicial Panel bn Multidistrict Litigation.