Summary
severing Mason, denying transfer, and noting that the court would consider the merits of the claims
Summary of this case from In re Simon II LitigationOpinion
No. 00-CV-5332 Related to No. 98-CV-0675, 98-CV-1492, 98-CV-3287, 99-CV-1988, 99-CV-6142, 00-CV-2340, 00-CV-4442, 00-CV-4632, 02-CV-0599
July 11, 2002
Perry Weitz, Robert J. Gordon, Jerry Kristal, Richard L. Akel, Esq., Weitz Luxenberg, New York, NY; Steven E. Fineman, Esq., Thomas M. Sobol, Lieff, Cabraser, Heimann, Bernstein, New York, NY; Elizabeth J. Cabraser, Richard M. Heimann, Robert J. Nelson, Lieff, Cabraser, Heimann, Bernstein, San Francisco, CA; Norwood Wilner, Sporwood Wilner Maciejewski Matthews, P.A., Jacksonville, Florida; Stanley Chesley, Esq., Wait, Chesley, Waite Schneider, Bayless Chesley, Cincinnati, Ohio; Gregory T. Carnold, Esq., Wayne F. Dennison, Esq., Brown Rudnick Freed Gesmer, Boston, Mass; Charles Mangan, Esq., Sheller Ludwig Badley, Philadelphia, PA; Joshua Kassner, John A ngelos, Esq., Law Offices of Peter G. Angelos, P.C., Baltimore, MD; O'Donoghue O'Donoghue, Washington, D.C.; Melvyn I. Weiss, Esq., Beth A. Kaswan, Esq., Michael C. Spencer, Esq., Milberg Weiss Bershad Hynes Lerach, New York, NY; Paul J. Bschorr, Esq., Vincent R. FitzPatrick, Jr., Esq., Michael Hefter, Esq., Heather K. McDevitt, Esq., Dewey Ballantine LLP, New York, NY; Martha J. Talley, Esq., Dewey Ballantine LLP, Washington, DC; Jonathon W. Cuneo, The Cuneo Law Group, Washington, D.C.; Mark B. Hutton, Derek S. Casey, Chan P. Townsley, Hutton Hutton, Wichita, KS; Gary Richardson, Richardson Ward, Tulsa, OK; Peter A. Bicks, James L. Stengel, Orrick, Herrington Sutcliffe, LLP, New York, NY; Thomas R. McNaboe, Thompson, McNaboe, Ashley Bull, LLC, P.A., Portland, MA; Steven Kazan, Kazan, McClain, Edises, Simon Abrams, Oakland, CA, for Plaintiffs.
Kevin J. Dunne, Esq., Eric M. Kraus, Esq., Sedgwick, Detert, Moran Arnold, Esq., New York, NY; Marjorie P. Lindblom, Esq., David Bernick, Esq., Andrew R. McGaan, Esq., Deirdre A. Fox, Esq., Kirkland Ellis, Esqs., New York, NY; U. Gwyn Williams, Esq., Goodwin, Proctor Hoar, LLP, Boston, MA; Harold Keith Gordon, Byron G. Stier, George Kostolampros, Jones, Day, Reavis Pogue, New York, NY; Theodore M. Grossman, Hugh R. Witing, Mark A. Belasic Jones, Day, Reavis Pogue, Cleveland, OH; Robert H. Klonoff, Jones, Day, Reavis Pogue, Washington, D.C.; Jerome R. Doak, Margaret I. Lyle, Jones, Day, Reavis Pogue, Dallas, TX; Ursula M. Henninger, Esq., Womble Carlyle Sandridge Rice, Winston-Salem, NC; Alan Mansfield, Esq., Robert J. Kirshenberg, Esq., Stephen L. Saxl, Esq., Greenberg Traurig, LLP, New York, NY; William L. Allinder, Esq., Lori Connors McGroder, Esq., Shook, Hardy Bacon, LLP, Kansas City, MO; Michael V. Corrigan, Joseph M. McLauglin, Ronald M. Neuman, Adam I. Stein, Esq., Simpson Thacher Bartlett, New York, NY; Donald J. Strauber, David A. Wallace, Daniel Endick, Chadbourne Parke, LLP, New York, NY; Peter Bleakley, Esq., Murray R. Garnick, Esq., David S. Eggert, Eric Suter Arnold Porter, Washington, DC; Peter L. Critchell, Esq., Dechert Price Rhoads, New York, NY; John B. Williams, Esq., Thomas W. Mitchell, Esq., Collier, Shannon, Rill Scott, Washington, DC; Kenneth J. Parsigian, Esq., Paul E. Namser, Esq., Goodwin, Proctor Hoar, Boston, MA; Anne E. Cohen, Esq., Harry Zirlin, Esq., Steven S. Michaels, Esq., Debevoise Plimpton, New York, NY; Bruce J. Ginsberg, Esq., Davis Gilbert LLP, New York, NY; Jacob Horowitz, Esq., Seward Kissel LLP, New York, NY; Bryan A. McKenna, Esq., Jacob Medinger Finnegan, New York, NY; Arthur H. Aizley, Esq., Eric S. Sarner, Esq., Skadden Arps Slate Meagher Flom, New York, NY; Leonard A. Feiwus, Esq., Kasowtiz Benson Torres Friedman, New York, NY, for Defendants.
MEMORANDUM AND ORDER (MASONS)
I. Introduction
Plaintiffs move (1) for class certification under Rule 23, and (2) to sever from the Simon II litigation. Defendants move to transfer the case to the District of Columbia. The motion to sever is granted. The motion to transfer is denied. The motion for class certification will be considered when the court considers a motion to dismiss.
II. Discussion
a. Severance
This case was consolidated with the Simon II litigation in 2000 because of similarities between factual allegations in the cases. Revisions to the Mason and Simon II complaints have substantially eliminated the need for consolidation. Severance is granted.
b. Transfer
This case was originally transferred to this court from Texas. A case with similar contentions brought by the government has been dismissed by the district court in Washington, D.C. In the Eastern District there has now been extensive argument in the instant case.
"For the convenience of the parties and witnesses, in the interest of justice a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404 (a). Transfer is discretionary. Filmline (Cross Country) Prods., Inc. v. United Artist Corp., 865 F.2d 513, 520 (2d Cir. 1989).
When deciding whether to transfer a case, the court should make a two-fold inquiry: "whether the action sought to be transferred is one which might have been brought in the district court in which the movant seeks to have the case litigated . If so, second, whether, considering the convenience of parties and witnesses and the interest of justice a transfer to the proposed district is appropriate." United States Fid. Guar. Co., v. Republic Drug Co., 800 F. Supp. 1076, 1079 (E.D.N.Y. 1992) (Internal quotations omitted). The movant bears the burden of establishing that the transfer should be granted. Id.
This case was sent here from Texas, to be coordinated with the other pending tobacco litigation, and then was consolidated with the other Simon II litigation for purposes of efficiency. Defendants moved to transfer this case to the District of Columbia twice before (where the claim could have been brought) and the motions were denied. The reasons of judicial economy upon which the court based those denials remain. In the interest of justice, after further consideration, the renewed motion to transfer is again denied. See Transcript of July 2, 2002 at 64-65.
C. Class Certification
Plaintiffs' complaint names three representative plaintiffs who are to represent "individuals who have received or are receiving health care services for the treatment of tobacco related illnesses, including, but not limited to, lung cancer, heart disease, emphysema and chronic obstruction pulmonary disease, which services have been paid for, or are being paid for, by Medicare." Fourth Complaint, February 14, 2002, at 1. The representatives seek to act as "private attorneys general" under section 1395y(b)(3)(A) of title 42 of the United States Code, which creates a private cause of action for damages.
The court has suggested that defendants bring a motion to dismiss. While the court of appeals has ruled that the certification issue "does not involve consideration of the merits of the case," e.g., Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 157 (2d Cir. 2001), the statutory scheme and viability of the present claim need to be considered in conjunction with the certification issue. Cf. Karin S. Schwartz, et al, Notes from the Cave: Some Problems in Dealing with Class Action Settlements, 163 F.R.D. 369, 392 (1995). See Transcript of July 2, 2002 at 30-31, 98-99.
III. Conclusion
The motion to sever is granted. The motion to transfer is denied. Decision on certification is postponed.