Mary Plubell v. Merck & Co., Inc.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4217
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Mary Plubell, on behalf of herself *
and all others similarly situated; *
*
Respondent, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Merck & Co., Inc.; *
*
Petitioner. *
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Submitted: January 10, 2006
Filed: January 20, 2006
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Before SMITH, McMILLIAN1, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
This case involves a putative class action filed in Missouri state court against
Merck & Co., Inc., manufacturer of the prescription drug Vioxx. Merck sought to
remove the case to federal court under the Class Action Fairness Act of 2005, Pub. L.
No. 109-2, 119 Stat. 4, arguing that a new action commenced when Mary Plubell
1
The Honorable Theodore McMillian died on January 18, 2006. This opinion
is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E.
replaced Carol Green Richardson as class representative. The district court2 disagreed
and remanded the case to state court. Merck appeals. Having jurisdiction under 28
U.S.C. § 1453(c)(1), this court affirms.
I.
On December 13, 2004, Carol Green Richardson, as class representative, filed
a class action lawsuit against Merck in Missouri state court, alleging deceptive trade
practices in the development and marketing of Vioxx. The state court had exclusive
jurisdiction over the class action at the time of filing. During discovery, plaintiff's
counsel learned that Richardson was mistaken about the manufacturer of the pain
medication prescribed by her doctors. Plaintiff's counsel sought leave to amend the
petition, substituting a new class representative, Mary Plubell, for Richardson. On
August 29, 2005, the state court granted the amendment. A week later, the state court
denied Merck's motion to dismiss the class action which alleged that Richardson could
not possibly state a claim (and which was filed before the motion for leave to amend
the petition). The class has not been certified yet.
Between the filing and the amendment of the petition, Congress passed the
Class Action Fairness Act of 2005 (CAFA), which confers federal jurisdiction over
class actions where, among other things, 1) there is minimal diversity; 2) the proposed
class contains at least 100 members; and 3) the amount in controversy is at least $5
million in the aggregate. See 28 U.S.C. § 1332(d). CAFA applies to civil actions
commenced on or after February 18, 2005. See id. § 1332 note.
2
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
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Merck attempted to remove the case to federal court under CAFA, arguing that
replacing the class representative commenced a new action on August 29, 2005. The
district court rejected this argument and remanded the case back to state court.
II.
The issue is when this case "commenced." CAFA applies only to class actions
commenced on or after February 18, 2005. See id.; Class Action Fairness Act of
2005, § 9, 119 Stat. at 14. CAFA does not define the word "commenced." State law
determines when a suit is commenced in state court. See Schorsch v. Hewlett-
Packard Co., 417 F.3d 748, 751 (7th Cir. 2005). In Missouri, a civil action is
commenced by filing a petition with the court. See Mo. R. Civ. P. 53.01. Here,
Richardson filed her petition, and thus commenced the action, over two months before
CAFA was enacted.
Merck asserts that because the amended pleading was not filed until six months
after CAFA's enactment, the class action was not commenced until then. The issue
becomes whether the amendment relates back or is instead a new action. An amended
pleading relates back to the date of the original petition "[w]henever the claim or
defense asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading . . . ." Id.
55.33(c). An amended pleading changing the defendant relates back if the preceding
sentence is satisfied and the new defendant 1) has received notice of the suit so it will
not be prejudiced in defending on the merits and 2) "knew or should have known that,
but for a mistake concerning the identity of the proper party, the action would have
been brought against the party." Id. Missouri Rule 55.33(c) "is derived from Rule
15(c) of the Federal Rules of Civil Procedure." Koerper & Co. v. Unitel Int'l, Inc.,
739 S.W.2d 705, 706 (Mo.banc 1987), quoting Hawkins v. Hawkins, 533 S.W.2d
634, 638 (Mo. App. 1976). The Missouri Supreme Court interprets Rule 55.33(c) to
embody Rule 15(c)'s rationale: "Rule 15(c) is based on the concept that a party who
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is notified of litigation concerning a given transaction or occurrence has been given
all the notice that statutes of limitation are intended to afford." Id., quoting Hawkins,
533 S.W.2d at 638. The court further noted that the objective of Missouri Rule
55.33(c), like federal Rule 15(c), is to ensure "that at all times [pleadings] are to assist,
not deter, the disposition of litigation on the merits." Id.
Although neither Missouri Rule 55.33(c) nor federal Rule 15(c) mention
amendments substituting plaintiffs, the advisory committee notes to the 1966
amendments of federal Rule 15(c) does:
The relation back of amendments changing plaintiffs is not expressly
treated in revised Rule 15(c) since the problem is generally easier. Again
the chief consideration of policy is that of the statute of limitations, and the
attitude taken in revised Rule 15(c) toward change of defendants extends by
analogy to amendments changing plaintiffs.
Fed. R. Civ. P. 15(c) advisory committee's note on the 1966 amendment; see also
Crowder v. Gordons Transps., Inc., 387 F.2d 413, 418 (8th Cir. 1967). The Missouri
Supreme Court would follow the advisory committee's note and federal courts'
interpretations of Rule 15(c). See Comm. for Educ. Equal. v. State, 878 S.W.2d 446,
451 (Mo.banc 1994) ("Where a federal rule has been construed by the federal courts
and our Court thereafter adopts a rule on the same subject using identical language,
there is no principled way to ignore the federal cases.").
Neither party cites any Missouri case law involving class actions and Rule
55.33(c). To determine whether an amendment adding a new plaintiff relates back to
the original complaint, federal courts generally either interpret Rule 15(c)(3) or apply
a judicially-created test. See Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113,
1131–32 (11th Cir. 2004) (comparing both approaches). Both tests consider the same
factors and often yield the same result. This court will apply the Rule 15(c)(3)
approach because the advisory committee's note indicates that the rule was intended
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to apply in situations where a new plaintiff is added. Under the Rule 15(c)(3)
approach, an amendment relates back if "the defendant knew or should have known
that it would be called on to defend against claims asserted by the newly-added
plaintiff," unless "the defendant would be unfairly prejudiced in maintaining a defense
against the newly-added plaintiff." Cliff, 363 F.3d at 1132; see also SMS Fin., Ltd.
Liab. Co. v. ABCO Homes, Inc., 167 F.3d 235, 244–45 (5th Cir. 1999); Advanced
Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 19 (2d Cir. 1997); Nelson
v. County of Allegheny, 60 F.3d 1010, 1014–15 (3d Cir. 1995); Asmus v. Capital
Region Family Practice, 115 S.W.3d 427, 433–34 (Mo. App. 2003) (analyzing
whether defendant was prejudiced by amendment adding new plaintiff).
In Crowder v. Gordons Transports, Inc., a federal case decided before Missouri
adopted Rule 55.33(c), this court essentially used this test in a Missouri wrongful
death case, holding that an amendment substituting a plaintiff related back to the
original complaint. "The relation back situation here confronting us appears to be
fully and fairly covered by the Federal Rules of Civil Procedure as amended in 1966."
Crowder, 387 F.2d at 417. Addressing the notice and prejudice to the defendant, this
court explained, "Defendant was given proper notice of the filing of the original
complaint" and "was clearly advised by the original complaint that each of the minors
was seeking damages against it for wrongful death of their father, and defendant was
in no way prejudiced by the failure to name the mother as next friend rather than as
administratrix in such original complaint." Id. at 419.
Merck argues that because Richardson did not actually purchase or use Vioxx,
successor-representative Plubell's claims in the amended pleading do not arise out of
the same "conduct, transaction, or occurrence." But Rule 55.33(c) requires only that
the amended claims must arise out of the same conduct, transaction or occurrence "set
forth" in the original pleadings. See Mo. R. Civ. P. 55.33(c). The question is not
whether Richardson actually purchased or used Vioxx, but whether Merck was put on
notice of the deceptive-practice claims in her petition. See Asmus, 115 S.W.3d at 434
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(noting several Missouri cases that hold "an amendment to bring in a plaintiff with the
legal right to sue instead of one improperly named as a plaintiff does not create a new
cause of action"); cf. Murray v. GMAC Mortgage Corp., No. 05-8035, 2006 WL
90081, at *5 (7th Cir. Jan. 17, 2006) (in "professional plaintiff" context, plaintiffs'
counsel "as a practical matter are the class's real champions"). Both the original and
the amended pleadings set forth exactly the same conduct by Merck; the only
difference is the class representative. See Asmus, 115 S.W.3d at 434 (where new
plaintiff was added, but defendants "were fully apprised of claim against them and had
opportunity to prepare to defend against it," amendment does not create new cause of
action). Therefore, the amended pleading satisfies the first sentence of Rule 55.33(c).
The next step is to evaluate whether the defendant would be unfairly prejudiced
if the amended pleading related back. As already noted, the claims alleged in both the
original and the amended pleadings are exactly the same, reprinted verbatim. Merck
was clearly advised by the original petition that the plaintiff class sued for deceptive
trade practices in developing and marketing Vioxx. Thus, Merck was in no way
prejudiced by the identical allegations in the amended pleading. See Asmus, 115
S.W.3d at 434 ("Because the claim would have remained unchanged with the addition
of the bankruptcy trustee, the Defendants would not have been prejudicially
affected."). Moreover, although Mary Plubell is only a putative member of the
original class, which has not yet been certified, Merck still knew or should have
known that it must defend against Plubell's claims. Plubell is only "newly-added" in
that she became the named class representative.
Merck claims that it is prejudiced because CAFA confers a right to be in federal
court. However, nothing in CAFA grants such a right. According to CAFA, its
purposes are to: "1) assure fair and prompt recoveries for class members with
legitimate claims; 2) restore the intent of the framers of the United States Constitution
by providing for Federal court consideration of interstate cases of national importance
under diversity jurisdiction; and 3) benefit society by encouraging innovation and
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lowering consumer prices." 28 U.S.C. § 1711 note; Class Action Fairness Act of
2005, § 2(b), 119 Stat. at 5. The first purpose relates only to plaintiffs, while the
second and third purposes speak to society-at-large's benefits, not to defendants'.
While some defendants may benefit by having their cases in federal instead of state
court, this is not a stated purpose of the Act.
Additionally, Merck asserts that Missouri Rule 55.33(c) applies only when there
is a live claim between the original parties. Merck argues that because Richardson
never actually purchased or used Vioxx, she did not have a legal right to sue, and the
amended pleading cannot relate back. However, none of the cases Merck cites for this
proposition is a class action. See Caldwell v. Lester E. Cox Med. Ctrs.-S., Inc., 943
S.W.2d 5 (Mo. App. 1997); Smith v. Tang, 926 S.W.2d 716 (Mo. App. 1996); State
ex rel. Jewish Hosp. of St. Louis v. Buder, 540 S.W.2d 100 (Mo. App. 1976); see
also Henderson v. Fields, 68 S.W.3d 455, 466 (Mo. App. 2001); Don Roth Dev. Co.
v. Mo. Highway & Transp. Comm'n, 668 S.W.2d 177, 179 (Mo. App. 1984). The
closest authority on class actions would allow Richardson to sue Merck as class
representative, even though she mistakenly believed she purchased and used Vioxx.
See Donaldson v. Pillsbury Co., 554 F.2d 825, 831 n.5 (8th Cir. 1977) ("Appellant's
failure to prevail on her own claim, while ordinarily an element to consider in the
appellate review of a class action determination . . . is not conclusive. It does not
defeat her capacity to represent the class.").
Finally, Merck contends that allowing the substitution of a new class
representative – without commencing a new action – allows naming placeholder
representatives. First, under Rule 55.33(c), a court could determine that a placeholder
representative unfairly prejudices the defendant. Second, a court could deny leave to
amend if it thought the plaintiff (or counsel) had acted in bad faith. See Mo. R. Civ.
P. 55.03(b), 55.33(a); Asmus, 115 S.W.3d at 437. In this case, there is no indication
of prejudice or bad faith.
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III.
The conduct alleged by Plubell in the amended pleading arises out of the same
conduct, transaction or occurrence set forth in the original pleadings. Because the
claims are exactly the same in both pleadings, and Plubell was a member of the
putative class in the original petition, Merck is not unfairly prejudiced. Therefore,
under the Rule 15(c)(3) test, as applied to Missouri Rule 55.33(c), the amended
pleading relates back to the original petition, which was filed before the enactment of
CAFA.
The judgment of the district court is affirmed.
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