United States District Court, E.D. Pennsylvania
May 19, 2004.
IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION, THIS DOCUMENT RELATES TO:; SHIRLEY JOBE, et al.
The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge
MEMORANDUM AND PRETRIAL ORDER NO.
To address misjoinder issues, and to facilitate the efficient
administration of discovery, we issued Pretrial Order No. ("PTO") 3370,
which requires the severance of multi-plaintiff actions in MDL No. 1203.
See PTO No. 3370, § II (Mar. 24, 2004). Pursuant to
Paragraph 6 of PTO No. 3370, the Special Discovery Master identified the
above-referenced action for severance. See id. at 15. This
action involves 142 plaintiffs who have asserted various claims against
Wyeth.*fn1 Rule 21 of the Federal Rules of Civil Procedure provides in part that
"[p]arties may be dropped or added by order of the court . . . at any
stage of the action and on such terms as are just." Pursuant to this
rule, courts may sever misjoined parties when their claims do not arise
out of the same transaction, occurrence, or series of transactions or
occurrences, and the claims will not involve a question of law or fact
common to all parties. See Fed.R.Civ.P. 20; see also
Norwood Co. v. RLI Ins. Co., et al., Civ. A. No. 01-6153, 2002 WL
523946, at *1 (E.D. Pa. Apr. 4, 2002). In addition, courts may sever
parties for the "efficient administration of justice." See Moore's
Federal Practice § 21.02(1); see also Official Comm. of
Unsecured Creditors v. Shapiro, et al., 190 F.R.D. 352, 355 (E.D. Pa. 2000).
An action severed under Rule 21 becomes an independent action. See
Degen v. Bunce, et al., Civ. A. No. 93-5674, 1995 WL 120483, at *3
(E.D. Pa. Mar. 13, 1995).
The claims asserted by the plaintiffs against Wyeth and other
defendants in this action are based upon plaintiffs' alleged ingestion of
the diet drugs Pondimin and/or Redux and injuries they allegedly
sustained as a result of said ingestion. The claims are not otherwise
related. The grouping of such claims in a single action does not satisfy
the transaction or occurrence requirement of Rule 20. Accordingly,
plaintiffs in this action are misjoined.
In addition, such multi-plaintiff actions with unrelated claims impede
the efficient administration of MDL No. 1203. Oftentimes it is unclear
from the Complaint which plaintiffs are asserting which claims against
which named defendants. Multi-plaintiff actions complicate discovery and
interfere with its completion in accordance with assigned deadlines.
Severance of this and other multi-plaintiff actions will require each
plaintiff to file a Severed and Amended Complaint that provides the
necessary information about his or her claims. Thereafter, new deadlines
will be assigned to govern discovery in each individual case, thereby
allowing for the completion of discovery and the resolution of issues
that may arise on a case-by-case basis. Proceeding in this manner
streamlines the remand of actions to the appropriate transferor courts and minimizes the
burden placed upon those courts due to the volume of litigation in MDL
Therefore, we will order this action to be severed into separate
actions. Each plaintiff shall file a Severed and Amended Complaint no
later than sixty (60) days from the date of this Order pursuant to
Paragraphs 7, 8, 10, and 12 of PTO No. 3370, each of which shall be
assigned a separate, but related, Civil Action Number. No new claims or
new defendants may be added without prior leave of court. See
PTO No. 3370, § II, ¶ 10. In addition, because an action severed
under Rule 21 becomes an independent action, each plaintiff who files a
Severed and Amended Complaint, except for the first named plaintiff,
shall remit to the Clerk of Court a filing fee in the amount of $150.00,
pursuant to 28 U.S.C. § 1914. Failure to remit this fee will result
in the dismissal with prejudice of any and all claims asserted by the
plaintiff. PRETRIAL ORDER NO.
AND NOW, this day of May, 2004, for the reasons set forth in the
accompanying Memorandum, it is hereby ORDERED that:
(1) pursuant to Rule 21 of the Federal Rules of Civil Procedure,
the above-captioned action shall be severed into separate civil actions;
(2) each plaintiff and his or her derivative claimants shall
submit for filing a Severed and Amended Complaint no later than sixty
(60) days of the date of this Order and in accordance with Paragraphs 7,
8, 10, and 12 of Pretrial Order No. 3370;
(3) the Clerk of Court shall assign a separate Civil Action
Number, which shall be related to Civil Action Number 03-20232, for each
Severed and Amended Complaint filed pursuant to this Order; (4) a filing fee in the amount of $150.00 shall be remitted to the
Clerk of Court for each Severed and Amended Complaint, except for the
first named plaintiff; and
(5) failure to remit the filing fee with a Severed and Amended
Complaint, except as noted in Paragraph (4), will result in the dismissal
with prejudice of any and all claims asserted by the plaintiff.