Sandra L. Powell died on January 23, 1970. The amended complaint was filed on January 25, 1971. There is a one-year statute of limitations. Rule 6 of the Federal Rules of Civil Procedure provides that the day of the act or event from which the designated period of time begins to run shall not be included in the computation. Therefore, the last day for filing the complaint would have been January 24, 1971, a Sunday. Rule 6 further provides that if the last day for filing is a Saturday, a Sunday, or a legal holiday, filing on the next day which is not a Saturday, Sunday, or legal holiday is timely. In this case, the last day for filing would therefore be Monday, January 25, 1971. Plaintiff's amended complaint was timely filed. The motions of Smith, Kline & French, Inc., Parke, Davis & Company, and Invenex Pharmaceuticals will be denied.
Walker Corporation & Company, Inc. and Direct Sales Labs, Inc., are both New York corporations. They have moved to dismiss on the grounds that the court lacks jurisdiction over the subject matter since there is not perfect diversity as to them.
As indicated, plaintiff contends that jurisdiction exists as to these defendants because of the existence of a federal question. Although it is admitted that the Food, Drug and Cosmetic Act provides no specific grant of a private right of action, plaintiff argues that since the issues raised in the complaint arise directly from the statute, a federal question exists.
The issue is what is the effect of a violation of the Federal Food, Drug and Cosmetic Act.
In Orthopedic Equipment Co. v. Eutsler, 276 F.2d 455 (4th Cir. 1960), the court ruled that a violation of the duty created under the same Act was negligence per se under applicable state law.
Although the precise jurisdictional issue was not raised in that case, the case is relevant. First, the court recognized that no cause of action was created by the federal statute. Second, the court ruled that the statute established the standard of care which rests upon manufacturers of drugs. Finally the court held that the effect of a violation of that standard was to be determined by state law.
In Clairol Inc. v. Suburban Cosmetics and Beauty Supply, Inc., 278 F. Supp. 859 (N.D. Ill. 1968), the issue was raised as to whether the same Act created "federal question" jurisdiction. Clairol was an unfair competition and unfair business practices action which the defendant attempted to remove to federal court on the ground that a federal question existed under the Food, Drug and Cosmetic Act. Judge Will ruled that no federally-based cause of action was created by the act, and accordingly, remanded the case to the state court.
Based on these authorities, my conclusion is that this court does not have jurisdiction under 28 U.S.C. § 1331(a). The motions to dismiss made by Walker Corporation & Company, Inc., and Direct Sales Labs, Inc. will be granted since complete diversity does not exist between plaintiff and them.
Eli Lilly and Company's motion to dismiss is grounded on its conclusion that Walker Corporation and Direct Sales are indispensable parties to this action. Its position is that dismissal as to any of the drug company defendants necessitates dismissal of all, since, in its view, plaintiff is asserting only joint liability against these defendants. I cannot agree. The complaint and amended complaint state a cause of action based upon the alleged negligence of the defendants. Since the liability of tort-feasors is joint and several, they are not indispensable parties. Debbis v. Hertz Corporation, 269 F. Supp. 671 (D. Md. 1967). The motion of Eli Lilly and Company will be denied.
An appropriate order will be entered.