United States District Court, E.D. Pennsylvania
May 18, 2004.
IN RE: DIET DRUGS (Phentermine/Fenfluramine/Dexfenfluramine) PRODUCTS LIABILITY LITIGATION, THIS DOCUMENT RELATES TO:; MIKE COCKRELL, et al.
WYETH, et al
The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge
MEMORANDUM AND PRETRIAL ORDER NO.
The issue before the court is whether each plaintiff whose claims
have been severed in a multi-plaintiff action must pay the $150 filing
fee under 28 U.S.C. § 1914(a).
The undersigned is overseeing the nationwide class action settlement as
well as the multidistrict litigation involving Wyeth's diet drugs
Pondimin and Redux which were withdrawn from the market in September,
1997. Under the court approved nationwide class action Settlement
Agreement ("Settlement Agreement"), a Trust funded by Wyeth*fn1 was
established to pay benefits to those who suffered damages from ingesting
these diet drugs. However, class members, under certain circumstances,
are permitted to exercise an intermediate or back-end opt-out. Brown
v. American Home Products Corporation, CIV. A. No. 99-20593 (E.D. Pa. Aug. 28,
2000) (Pretrial Order ("PTO") No. 1415); Settlement Agreement at §
IV(A), (B), and (D)(4). Instead of receiving benefits from the Trust,
those who opt out may sue Wyeth in the tort system for compensatory but
not punitive, exemplary or multiple damages. Settlement Agreement §
IV.D.3.C. There are currently tens of thousands of such opt-outs.
The sixty-two plaintiffs involved here opted out and filed a single
action against Wyeth and others in the Mississippi Circuit Court.
Mike Cockrell, et al. v. Wyeth, et al. (Miss. Cir. Ct. Smith
County, filed Nov. 26, 2002). Wyeth removed the action, and it was then
transferred to this court as part of MDL 1203. Thereafter, this court
denied plaintiffs' motion to remand on the ground of fraudulent joinder
of non-diverse defendants. See PTO No. 3350.
On April 20, 2004, we issued PTO No. 3448 requiring the severance of
the claims of all sixty-two plaintiffs on the ground of misjoinder. While
all plaintiffs allege to have suffered valvular heart disease as a result
of using Pondimin or Redux, their claims clearly do not arise out of the
same transaction, occurrence or series of transactions or occurrences.
See Fed.R.Civ.P. 20. Moreover, proceeding with this one
action with multiple plaintiffs would severely impair the efficient
administration of justice, including discovery in MDL 1203. See
Moore's Federal Practice §§ 21.02(1) and 21.05. Accordingly, the court
exercised its authority under Rule 21 of the Federal Rules of Civil Procedure, which provides, "any claim against a party may
be severed and proceeded with separately." We ordered each plaintiff to
file a "severed and amended complaint" within sixty days and directed the
clerk of this court to assign each a separate civil action number. In
addition, we required each plaintiff to pay the $150 fee when filing a
severed and amended complaint or suffer dismissal with prejudice.
The plaintiffs do not object to the severance provisions of PTO No.
3448. Their motion for "partial reconsideration" simply challenges the
requirement that each of them remit a filing fee to the clerk.
The statute in issue, 28 U.S.C. § 1914(a), reads:
The clerk of each district court shall require the
parties instituting any civil action, suit or
proceeding in such court, whether by original
process, removal or otherwise, to pay a filing fee
of $150, except that on application for a writ of
habeas corpus the filing fee shall be $5.
Section 1914(a) has two salutary purposes. First, it is a revenue
raising measure. The filing fees are deposited with the Treasury, with
$90 of each fee designated to a special fund "to be available to offset
funds appropriated for the operation and maintenance of the courts of the
United States." 28 U.S.C. § 1931(a). Second, § 1914(a) acts as a
threshold barrier, albeit a modest one, against the filing of frivolous
or otherwise meritless lawsuits. Had each plaintiff initially instituted
a separate lawsuit as should have occurred here, a fee would have been
collected for each one for a total of more than $9,000. Thus, the federal fisc and more particularly the federal courts are
being wrongfully deprived of their due. By misjoining claims, a lawyer or
party need not balance the payment of the filing fee against the merits
of the claim or claims.
The sixty-two plaintiffs here are simply the tip of the iceberg. We
have already granted severance orders involving almost two thousand
plaintiffs in other actions which are part of this mass tort
multidistrict litigation. Two of the complaints had named over seven
hundred plaintiffs apiece. There are potentially thousands of additional
misjoined plaintiffs. If the $150 fee is eliminated for all severed
plaintiffs in MDL 1203, the government will suffer a loss of hundreds of
thousands of dollars in revenue at the very time the workload of the
clerk's office is being greatly increased because of the added filings.
As noted above, § 1914(a) requires the clerk to obtain a $150
filing fee from parties "instituting a civil action, suit or proceeding
whether by original process, removal or otherwise." (emphasis added). By
including the words proceeding and otherwise,.
Congress has given the statute a very broad reachWhile it is true that
the plaintiffs started out with one civil action, this court has now
compelled the filing of separate complaints for each of the plaintiffs.
The filing of a separate complaint constitutes the institution of a civil
action*fn2 or proceeding if not by original process or removal,
then otherwise. See U.S. ex rel LaCorte v. SmithKline Beecham,
149 F.3d 227, 231 n. 3 (3d Cir. 1998).
There is a paucity of reported decisions discussing the imposition of
the filing fee. Plaintiffs rely solely on Adams v. Alliant
Techsytems, Inc., 2002 WL 220934 (W.D. Va. Feb. 13, 2002). In that
case, the court granted a motion to sever over three hundred plaintiffs
who had sued defendants for hearing loss allegedly due to defendants'
negligent conduct of a manufacturing operation where the plaintiffs
worked. It denied the defendants' motion to dismiss all but one plaintiff
and to require re-filing of the claims and payment of separate filing
fees. Instead, it ordered that "Plaintiffs' claims be severed into
individual actions" without the payment of additional filing fees. With
no analysis of § 1914(a), the court simply said, "it would not be
just to require Plaintiffs to re-file their claims and pay separate
filing fees after five years of litigation." Id. at *3. Another
court, however, took the opposite position when it severed claims in an
action brought by a single plaintiff against multiple misjoined
defendants. It directed the plaintiff to pay the filing fees related to
the severance. DIRECTV v. Loussaert, 218 F.R.D. 639, 644 (S.D.
We agree with the result in DIRECTV and decline to follow
Adams. For the reasons stated above, we view the payment of a
$150 filing fee for every severed and amended complaint not only as just
but as mandated by § 1914(a). We do not read § 1914(a) to bestow a free ride on misjoined or misjoining
Since a $150 filing fee has already been paid by Wyeth to remove this
action to the federal court, we will not require the first named
plaintiff to incur that cost when that plaintiff files a severed and
amended complaint. The motion for partial reconsideration of PTO No. 3448
will otherwise be denied. PRETRIAL ORDER NO.
AND NOW, this day of May, 2004, for the reasons set forth in the
accompanying Memorandum, it is hereby ORDERED that the motion of
plaintiffs for partial reconsideration of PTO No. 3448 is DENIED except
that the first named plaintiff is not required to pay a $150 filing fee
when he files a severed and amended complaint.