Opinion
Master File (MDL No. 1348); 00 Civ. 2843 (LAK), This Document Relates to: 01 Civ. 7763, 01 Civ. 7764, 01 Civ. 7765;
February 13, 2002
PRETRIAL ORDER NO. 56 (Disposition of Motions to Amend)
Plaintiffs in these three actions that were filed in Mississippi state court, removed to federal court by the defendants and transferred to this Court as part of MDL 1348 have moved to amend their complaints to add claims against nondiverse physician defendants.
The Court notes at the outset that these nondiverse physicians hardly fall into the category of the "Doe Defendants" referred to in the original complaints. The original complaints allege that John Does I-X were involved in the manufacture, distribution and sale of Rezulin and that plaintiffs had made a diligent effort to determine their identities. Surely, at the time the original complaint was filed, the plaintiffs knew the identities of their own doctors. The motions to amend, therefore, are not simply motions to substitute the named physicians for "Doe Defedants."
As both parties recognize, these motions to amend are governed by 28 U.S.C. § 1447(e), which provides:
"If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court."
In deciding whether to permit joinder, the Court balances a number of factors. See Roland v. Marriott International Corp., No. 94 Civ. 7720 (LAK), 1995 WL 358631, at *3 (S.D.N Y June 15, 1995). Although decided prior to the enactment of Section 1447(e), the Fifth Circuit case Hensgens v. Deere Co., 833 F.2d 1179 (5th Cir. 1987), continues to provide the guideposts for this balancing inquiry. The factors the Court considers are: "(1) any delay, and its reasons, in moving to amend; (2) any resulting prejudice to the defendants; (3) the likelihood of multiple litigation; and (4) the plaintiff's motivation in moving to amend." DiNardi v. Ethicon, Inc., 145 F.R.D. 294, 297-98 (N.D.N.Y. 1993). The balance here tips in favor of the defendants.
1. Delay. Plaintiffs have not argued that they did not know the identity of these nondiverse physicians prior to removal. They argue instead that the need to join the physicians arises out of their understanding of this Court's opinion of March 1, 2001, In re Rezulin Products Liab. Litig., 133 F. Supp.2d 272, 281 (S.D.N.Y. 2001) ("Rezulin I"), which plaintiffs contend held that "all responsibility" for plaintiffs' injury falls at the feet of physicians. Plaintiffs assert that they had no intention of joining the physicians until this Court delivered its opinion in Rezulin I. However, all three of the instant cases appear to have been filed after March 1, 2001. Furthermore, plaintiffs have provided no explanation of their failure to name the physicians during the month that the cases were pending in state court. Plaintiffs' contention that Rezulin I changed their view of this litigation is not sufficient to justify the delay or the proposed amendments. See, e.g., In re Bridgestone/Firestone, Inc., 129 F. Supp.2d 1202, 1205 (S.D.Ind. 2001) (denying motion to amend to add claim against nondiverse car dealer despite plaintiff's contention that denial would permit the other defendants to conduct an "empty chair" defense and escape liability by blaming the absent dealer).
According to the state court file-stamps, Hurlbert v. Parke-Davis, No. 01 Civ. 7763, was filed on or about March 19, 2001, Shows v. Parke-Davis, No. 01 Civ. 7764, was filed on or about March 5, and Andrews v. Parke-Davis, No. 01 Civ. 7767, was filed on or about March 2.
The federal court file-stamps indicate notices of removal were filed in Andrews and Shows on or about April 2, 2001 and in Hurlbert on or about April 16, 2001.
2. Prejudice. The diverse defendants have an interest in maintaining the federal forum, especially in this multidistrict litigation to which significant time and resources already have been devoted. See Haltner v. American Home Products Corp., 1999 WL 969276, at *1 (D.N.H. Oct. 8, 1999). The nondiverse physicians are not necessary to the plaintiffs' obtaining full relief, and plaintiffs will suffer no prejudice from the denial of their motion to amend sufficient to outweigh the defendants' interest in removal and participation in the MDL.
3. Multiple Litigation. The possibility that the course of events that gave rise to these lawsuits will spur multiple litigation does not depend on the Court's decision on these motions. In all three cases, the proposed amended complaints allege that each doctor treated one plaintiff. These plaintiffs would be the only ones in their respective actions to state a claim against the nondiverse physicians if the proposed amendments are granted. In consequence, the Court may sever and remand the claims of these plaintiffs while denying the motion to remand as to the other plaintiffs who have failed to state a claim against a nondiverse defendant. See In re Rezulin Products Liab. Litig., 168 F. Supp.2d 136, 144-48 (S.D.N.Y. 2001). The same multiple litigation scenario would result if the motions to amend are denied and plaintiffs file separate state law actions against the physicians. Additionally, because the actions against the physician defendants and the other defendants are based on different causes of action, there is no risk of inconsistent results if joinder is denied.
4. Plaintiffs' Motivation. As noted above, plaintiffs have conceded that they seek to amend their complaints as a result of this Court's opinion in Rezulin I. This concession, as well as the timing of the motions to amend as discussed above, indicate that the motions to amend are an attempt to defeat diversity jurisdiction.
The balance of factors and interests weighs against the plaintiffs' motions to amend. The motions, therefore, all are denied.
The Court notes that a similar motion to amend was denied by the Southern District of Mississippi in King v. Parke-Davis, No. 01 Civ. 7767, before it was transferred to this Court. See Order, King v. Parke-Davis, No. 5:01cv101BrS (S.D.Miss. June 28, 2001).
SO ORDERED.