Opinion
CIVIL ACTION NO. 00-S-1122-E
October 30, 2000
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff Martha Sanks's ("Sanks") seven count complaint was originally filed in the Circuit Court of Macon County, Alabama against defendants Parke-Davis, a division of Warner-Lambert ("Warner-Lambert"), Central Alabama Comprehensive Health ("Comprehensive Health"), Dr. Velma Braye ("Braye"), and Eufaula Drugs, Inc. ("Eufaula Drugs"). In her complaint, Sanks alleges a violation of the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. § 2301-2312, and several violations of Alabama law. Specifically, Sanks alleges that the defendants knew or should have known that Rezulin, a drug prescribed for Type II diabetes, could cause extensive liver damage and life-threatening side effects. Despite this knowledge, Sanks alleges that Parke-Davis placed Rezulin into the stream of commerce. In 1998, Dr. Braye gave Sanks a prescription for Rezulin which she had filled at Eufaula Drugs. Sanks alleges that the ingestion of Rezulin caused extensive liver damage, pain and suffering, and mental anguish.
On July 19, 2000, Sanks filed a motion to dismiss defendants Comprehensive Health and Dr. Braye.
Sanks alleges a claim under the Alabama Extended Manufacturers Liability Doctrine ("AEMLD"); a claim for negligence and wantonness; a claim for negligent and wanton failure to warn; a warranty claim; a medical liability claim; and a concealment claim. Pl's Compl. ¶ 11.
Sanks's complaint does not ask for a specific amount of damages but asks for damages "in an amount that will serve to punish and deter similar wrongful conduct, together with interest from the date of the injuries and the cost of this proceeding." Pl's Complaint, ¶ 39.
On August 17, 2000, Warner-Lambert removed the case to this court, and on August 23, 2000, Sanks filed a motion to remand. Currently pending before the court is Sanks's motion to remand (doc. # 3) and the defendants' objection to the motion (doc. # 5). The parties have consented to a United States Magistrate Judge rendering final decision in this case pursuant to 28 U.S.C. § 636 (c). The court has carefully reviewed the plaintiff's motion to remand and the briefs filed in support of and in opposition to the motion. Based on its review of these documents, the court concludes that the plaintiff's motion to remand is due to be denied.
II. STANDARD OF REVIEW
It is axiomatic that federal courts are courts of limited jurisdiction and are "empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution." University of South Alabama v. American Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (citing Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). "It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994). When the parties disagree on the court's jurisdiction, questions or doubts are to be resolved in favor of returning the matter to state court on a properly submitted motion to remand. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Consequently, the defendant bears the heavy burden of demonstrating that removal is jurisdictionally proper. Wilson v. Republic Iron Steel Co., 257 U.S. 92, 97 (1921). Within the context of this standard, the court examines the parties' respective arguments.
III. DISCUSSION A. PARTIES' POSITIONS
Sanks makes two arguments in support of her motion to remand. First, she argues that Warner-Lambert waived its ability to remove the case because, although her complaint clearly invoked the court's federal question jurisdiction under the MMWA, it did not file its notice of removal within thirty days after the receipt of the summons and complaint. Second, Sanks argues that this court does not have diversity jurisdiction pursuant to 28 U.S.C. § 1332 because Eufaula Drugs is an Alabama resident, and subsequently, Warner-Lambert cannot establish complete diversity of citizenship among the parties.
Warner-Lambert argues that its notice of removal was timely pursuant to the second paragraph of 28 U.S.C. § 1446 (b) because it was filed less than thirty days after its receipt of Sanks's July 19, 2000 motion dismissing defendants Comprehensive Health and Dr. Braye. According to Warner-Lambert, it was not required to file its notice of removal within thirty days of its receipt of the summons and complaint because Sanks's MMWA claim did not satisfy the Act's jurisdictional minimum and consequently, was not within the court's federal question jurisdiction. Next, Warner-Lambert argues that this court has diversity jurisdiction of this case because Sanks fraudulently joined Eufaula Drugs as a defendant. Sanks cannot establish a cause of action against Eufaula Drugs, argues Warner-Lambert, because under Alabama law a pharmacy that dispenses a prescription drug in accordance with the instruction of the prescribing physician has no duty to warn customers about the drug's potentially dangerous side-effects. Consequently, Warner-Lambert urges the court to disregard the citizenship of Eufaula Drugs and to determine that complete diversity of citizenship exists among the parties.
B. TIMELINESS OF REMOVAL
Determining whether Warner-Lambert was required to file its notice of removal within thirty days of its receipt of Sanks's complaint or within thirty days of Sanks's July 19, 2000 motion to dismiss requires that the court interpret 28 U.S.C. § 1446 (b). The first paragraph of 28 U.S.C. § 1446 (b) requires a defendant to file a notice of removal within thirty days of its receipt of the summons and the complaint. However, the second paragraph creates a limited exception to this rule. More specifically, the second paragraph permits a defendant to remove a case that was not initially removable within thirty days of its receipt of any motion which transforms the case into a removable one. Given this framework, Warner-Lambert's ability to prove that it timely filed its notice of removal depends upon whether Sanks's MMWA claim satisfies the MMWA's jurisdictional minimum, thus triggering the court's federal question jurisdiction. Pursuant to 15 U.S.C. § 2310 (d)(3)(B), the district courts only have jurisdiction of MMWA claims in excess of $50,000. See also, Boyd v. Homes of Legend Inc., 188 F.3d 1294 (11th Cir. 1999). However, only certain types of damages are included in the computation of the jurisdictional minimum. See e.g., Ansari v. Bella Automotive Group, Inc., 145 F.3d 1270, 1271 (11th Cir. 1998) (holding that the computation of the jurisdictional amount does not include damages flowing from any pendant state law claim brought by a plaintiff); Boyd, 188 F.3d at 1306-7 (holding that punitive damages are unavailable under the MMWA). If the court determines that Sanks's MMWA claim satisfied the MMWA's jurisdictional minimum, then Sanks's motion to remand is due to be granted because the case was within the court's federal question jurisdiction and, pursuant to the first paragraph of 28 U.S.C. § 1446 (b), Warner-Lambert was required to file its notice of removal within thirty days of its receipt of the summons and complaint. On the other hand, if the court determines that Sanks's MMWA claim did not satisfy the MM WA's jurisdictional minimum, then Warner-Lambert was not required to file its notice of removal until thirty days after its receipt of Sanks's motion to dismiss Comprehensive Health and Braye. Based on a review of the record, the court concludes that Sanks's MMWA claim did not meet the MMWA's jurisdictional minimum, and thus, the court did not have federal question jurisdiction. Consequently, Warner-Lambert's notice of removal was timely because it was filed within thirty days of its receipt of Sanks's motion to dismiss Comprehensive Health and Braye.
28 U.S.C. § 1446 (b) provides:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
Even a fleeting glance at the complaint establishes that Sanks cannot satisfy the MMWA's jurisdictional minimum based solely on the cost of the Rezulin prescription. Thus, the court must determine whether it can consider damages for pain and suffering in determining whether Sanks's claim satisfies the MMWA's jurisdictional minimum. The MMWA contains an explicit provision against the recovery of personal injury damages. That section provides:
Nothing in this chapter (other than sections 2308 and 2304(a)(2) and (4) of this title) shall (A) affect the liability of, or impose liability on, any person for personal injury, or (B) supercede any provision of State law regarding consequential damages for injury to the person or other injury.15 U.S.C. § 2311 (b)(2) (Supp. 2000). In Boelens v. Redman Homes , the former Fifth Circuit addressed the issue of whether claims for personal injury are cognizable under the MMWA, and thus includable in computing the MMWA's jurisdictional minimum. 748 F.2d 1058, 1064 (5th Cir. 1984), See also, Oliver v. Homes of Legend, Inc., No. 00-W-148-S, 2000 WL 1092130 (M.D. Ala. Apr. 17, 2000). In Boelens the court held that personal injury damages under § 2311(b)(2) are only available if the complaint alleges a violation of the substantive provisions of § 2308, § 2304(a)(2), or § 2304(a)(3). Boelens, 748 F.2d at 1065-6. Section 2308 imposes restrictions on disclaimers, modifications, or limitations on implied warranties; § 2304(a)(2) prohibits the limitations on the duration of implied warranties; and § 2304(a)(3) requires the conspicuous display of warranty information. In this case, Sanks does not allege that Warner-Lambert breached its duty under 2308, § 2304(a)(2), or § 2304(a)(3) by modifying or limiting the duration of the efficacy of Rezulin's implied warranty or by failing to prominently display any express warranties. Thus, Sanks's claims fall squarely within the prohibition of 15 U.S.C. § 2311 (b)(2) and cannot be included in the computation of the MMWA's jurisdictional minimum. Consequently, Warner-Lambert's notice of removal was timely filed because Sanks's claim did not satisfy the MMWA's jurisdictional minimum required to trigger the court's federal question jurisdiction.
"It is generally agreed that the reference to section 2304(a)(4) was a draftsmanship error and that section 2304(a)(3) was intended." Boelens v. Redman Homes Inc., 748 F.2d 1058 (5th Cir. 1984).
In Boelens, the plaintiff alleged that she and her minor children sustained personal injury and endured severe emotional distress from formaldehyde fumes contained in their mobile home.
In Oliver v. Homes of Legend, Inc., No. 00-W-148-S, 2000 WL 1092130 (M.D. Ala. Apr. 17, 2000), the plaintiff filed suit against the manufacturer of her mobile home alleging various defects in the workmanship, materials, and set-up of the home. The plaintiff also alleged that these defects caused extreme emotional distress.
C. FRAUDULENT JOINDER
Raving determined that Warner-Lambert timely filed its notice of removal, the court now addresses whether, pursuant to 28 U.S.C. § 1332, the court has diversity jurisdiction of this case. The court's diversity jurisdiction depends upon whether Warner-Lambert can prove by clear and convincing evidence that Eufaula Drugs was fraudulently joined. If the court determines that Eufaula Drugs was fraudulently joined, then Warner-Lambert, as the sole remaining defendant, is completely diverse from the plaintiff and thus, can establish complete diversity of citizenship. See e.g., Strawbridge v. Curtiss, 7 U.S. 267 (1806). The court concludes that Warner-Lambert has established complete diversity among the parties because Eufaula Drugs was fraudulently joined.
To prove fraudulent joinder, the defendant must prove that (1) there is no possibility that the plaintiff can establish a cause of action against the resident defendant or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the residential defendant into state court. Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (citing Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989)). Based on the record and the parties' arguments, only the first element of this paradigm is at issue in this case.
A federal district court has original jurisdiction over all cases where the amount in controversy exceeds $75,000, exclusive of interests and costs, between citizens of different states. See 28 U.S.C. § 1332 (a). Although not a specific requirement of 28 U.S.C. § 1332 (a), the Supreme Court requires all plaintiffs to be diverse from all defendants. Strawbridge, 7 U.S. at 269. However, in delineating the requirements for diversity jurisdiction, the law is clear that "removal cannot be defeated by a fraudulent joinder of a residential defendant having no real connection to the controversy." Wilson, 257 U.S. at 97. In the Eleventh Circuit, the defendant has the burden of proving fraudulent joinder by clear and convincing evidence. Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (citing Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989)). The court looks to the complaint and submissions outside the pleadings, such as deposition testimony and affidavits to determine whether the defendant has met its burden of proof. Id.
In counts I, II, III, and VII of her complaint, Sanks essentially alleges that Eufaula Drugs did not warn her about Rezulin's potentially life-threatening side-effects. Conspicuously absent from Sanks's complaint, however, is any allegation that Eufaula Drugs incorrectly filled, dispensed, or labeled her prescription. Under Alabama law, this absence is fatal to her claim against Eufaula Drugs because a pharmacy or pharmacist who correctly fills a prescription in strict accordance with the prescribing physician's directions is protected by the learned intermediary doctrine and is not required to warn patients of potential adverse side effects. Lansdell v. American Home Prods., Civil Action No. 99-S-2110-NE (N.D. Ala. Oct. 26, 1999) (dismissing claims against pharmacist based on the learned intermediary doctrine based upon implicit holding of Stafford v. Nipp, 502 So.2d 702 (Ala. 1987)); See also, Harrell v. Wyeth-Ayerst Lab. Inc., Civil Action No. 98-1194-BH-M (S.D. Ala. Feb. 1, 1999); Orr v. Wyeth-Ayerst Lab. Co., Case No. CV-98-3000-DIET (Circuit Court of Mobile County, Alabama Aug. 2, 1999). While conceding that she does not have a cause of action against Eufaula Drugs based on its failure to warn, Sanks argues that, under Alabama law, a party can voluntarily assume a duty to warn, thus becoming civilly liable for its negligent or wanton performance of the voluntarily assumed duty. See e.g., Dailey v. City of Birmingham, 378 So.2d 728, 729 (Ala. 1979). According to Sanks, the court should remand this case because Sanks's affidavit establishes that an Eufaula Drugs pharmacist told her that Rezulin did not have any side-effects. Although not a model of clarity, Sanks apparently argues that this interaction between Sanks and her pharmacist demonstrates that Eufaula Drugs breached a voluntarily assumed duty to warn her about Rezulin's safety. The court finds this argument unpersuasive for two primary reasons. First, Sanks's affidavit does not establish that the pharmacist assumed a duty to warn. The crux of Sanks's affidavit is that, despite knowledge to the contrary, the pharmacist failed to warn her of the danger, when he responded negatively to her questions about Rezulin's safety. In other contexts, the Alabama Supreme Court has held that a response to an inquiry is not the same as "volunteering" to act. The court agrees. Cutts v. American United Life Ins. Co., 505 So.2d 1211, 1213 (1987) (holding that a response to request was not a voluntary act within the meaning of Dailey v. City of Birmingham). See also, Columbia Engineering, Ltd. v. Espey, 429 So.2d 955, 967 (Ala. 1983) (suggesting that where a voluntary undertaking has been found, either direct or indirect participation existed in the injury-causing hazard). Second, the affidavit of Sanks's expert witness, Dr. James O'Donnell, merely reiterates Sanks's allegations that Eufaula Drugs failed to warn her about Rezulin's safety. Dr. O'Donnell's opinion that Eufaula Drugs breached the standard of care does not alter relevant legal authority which holds that Alabama pharmacists and pharmacies do not have a legal duty to warn customers about a medication's potentially life-threatening side-effects.
Under the learned intermediary doctrine, pharmaceutical manufacturers are only required to warn the prescribing physician, who acts as a learned intermediary between the manufacturer and the consumer, about potentially adverse side-effects. In Stafford v. Nipp, 502 So.2d 702 (Ala. 1987), the Alabama Supreme Court, by implication, expanded the doctrine to pharmacies and pharmacists.
Pl's Br. in Supp. of Mot. to Remand, p. 9.
Aff. Martha Sanks, Pl's Br. in Supp. of Mot. to Remand, Ex. 11.
Dr. O'Donnell testifies that the pharmacist/pharmacy breached the standard of care because "when a customer requests needed information about a prescription drug being purchased and such drug's literature advises periodic testing of persons taking such drug, the standard of care for a pharmacist requires that the pharmacist so advise his/her customer." Pl's Br. in Supp. of Mot. to Remand, Ex. 9.
Because Sanks's claims against Eufaula Drugs are barred by the learned intermediary doctrine, the court disregards the citizenship of Eufaula Drugs as a fraudulently joined defendant. Warner-Lambert, as the sole remaining defendant, is completely diverse from plaintiff. Consequently, the court finds that it has diversity jurisdiction pursuant to 28 U.S.C.
§ 1332.
Accordingly, it is
ORDERED that the plaintiff's motion to remand (doc. #3) is hereby denied. It is further
ORDERED that pursuant to the provisions of FED. R. CIV. P. 16(b) this case be and is hereby set for a scheduling conference by telephone on November 22, 2000 at 1:30 p.m. The plaintiff shall set up the conference call. Counsel are reminded of their obligation to hold a planning meeting. See FED. R. CIV. P. 26(f); M.D. Ala LR 26.2(b).