Cooper v. RJ Reynolds Tobacco Co., 5074.

Citation234 F.2d 170
Decision Date24 May 1956
Docket NumberNo. 5074.,5074.
PartiesEva COOPER, Administratrix, Plaintiff, Appellant, v. R. J. REYNOLDS TOBACCO COMPANY, Defendant, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Marvin A. Stern, Boston, Mass., Samuel Stern, Boston, Mass., on the brief, for appellant.

John L. Hall, Boston, Mass., Stuart C. Rand, Brinley Hall, Rhodes G. Lockwood, and Choate, Hall & Stewart, Boston, Mass., on the brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal from a judgment entered November 10, 1955, in the United States District Court for the District of Massachusetts dismissing plaintiff's substitute complaint with costs to the defendant.

In this action the plaintiff, Eva Cooper, administratrix of the estate of her late husband, Joseph Cooper, sought damages for his pain, suffering and death. Cooper was alleged to have died from lung cancer caused by smoking a certain brand of the defendant's cigarettes. The action originated in the Superior Court of the Commonwealth of Massachusetts. The declaration at that time contained three counts. Subsequently a substitute declaration was filed likewise containing three counts.

The defendant petitioned to remove the action on the ground of diversity of citizenship, and on September 13, 1954, filed an answer to the substitute declaration in the district court. At the hearing of the objections to plaintiff's interrogatories on November 18, 1954, the court below indicated dissatisfaction with the substitute declaration, which had already been answered, and gave plaintiff sixty days in which to amend. The court said:

"Under those circumstances, I do not think I should now have to rule or even consider argument with reference to interrogatories. I may, however, suggest to you it is very desirable in your amendment to the complaint you speak much more specifically than you have in your original complaint. If you have, for example, and I use it only by way of example, two theories, one based on deceit and the other based on negligence, I think that the complaint ought to be so framed as to make it very clear what representation you say is the basis of the action of deceit, and if you are claiming negligence in another count, I think it ought to be very clear what you say is the duty, the breach of which gives rise to the cause of action.
"Because, so far as I am concerned, I shall encourage a motion to dismiss. I have no intention whatsoever of trying this case on the facts unless there is a cause of action validly pleaded."

Subsequently the court commented: "What I want to know is what it is that the defendant asserted which was false."

On January 17, 1955, plaintiff filed a motion to amend the substitute declaration by adding four new counts while retaining the three original counts to which an answer had been made. Defendant moved on February 16, 1955, to dismiss the complaint as amended or to strike the amendment and to dismiss the complaint. This motion was heard on May 24, 1955, at which time the court indicated increasing dissatisfaction with the pleadings. The court said:

"I will strike Count VII, and I will now give you thirty days in which to file one substitute complaint, not a series of amendments to prior pleadings here, in which substitute complaint you may set forth, if you see fit a cause of action for deceit and a cause of action for negligence; such allegations in general to correspond with what I have suggested here. If you are unable to do it clearly and concisely, in such form that I feel I can adequately understand the pleadings for purposes of making rulings at the trial and for the purpose of charging the jury, I shall, without giving you any further opportunity to amend, dismiss the case on the general ground that you have in a most aggravating manner failed to comply with the Rules of Civil Procedure, which require a simple and concise statement of your complaint."

On June 21, 1955, plaintiff filed a substitute complaint setting forth ten counts in all. Defendant moved on June 30, 1955, "to dismiss the action because of the plaintiff's persistent and flagrant disregard of the requirements of Rule 8 of the Federal Rules of Civil Procedure 28 U.S.C.A. and because of the plaintiff's manifest failure to comply with the court's instructions regarding the complaint." The motion was heard on October 31, 1955, plaintiff's attorney failing to make an appearance. The court ruled as follows:

"Pursuant to the motion filed by the defendant, I dismiss the plaintiff\'s complaint on the following grounds, each of which is to be considered separately as well as cumulatively: —
"(1) The complaint fails to comply with Rule 8 of the Federal Rules of Civil Procedure.
"(2) The complaint is so drafted that it could not satisfactorily be used by a judge for the purpose of making rulings during the course of a trial.
"(3) The complaint is drafted in such a prejudicial manner as to make it improper for submission to a jury, as is the practice in connection with pleadings in this district.
"(4) The plaintiff failed to comply with the specific directions given by the Court on May 24, 1955.
"(5) The plaintiff has had at least three previous opportunities to file an appropriate complaint and, on May 24, 1955, I made it plain that no further opportunities would be given after this last one afforded on May 24. Costs to go to the defendant."

Without pausing to consider plaintiff's contention that the pleadings in this case must be adjudicated in accordance with Massachusetts law, we turn directly to plaintiff's contention that the substitute declaration, amended declaration, and/or the substitute complaint satisfied the requirements of the relevant rules of the Federal Rules of Civil Procedure and in particular Rule 8 thereof.

It is our view of this case that if any single count of the two declarations or the substitute complaint meets the requirements of Rule 8, then the dismissal of the action would constitute an abuse of judicial discretion. We believe that it is each individual count which should be tested for simplicity and brevity under the requirements of Rule 8 — not the entire complaint as an indiscriminate whole. In other words the mere incorporation of additional counts should not of itself be regarded as necessarily tending to defeat the requirements of the Rule. It is entirely conceivable, of course, that a situation might arise wherein such a great number of variations upon the same basic claim might be introduced into a complaint so that the mere necessity of reading the various counts to determine their individual merit might constitute an oppressive burden upon the court. We believe there is no such case here.

Although Count V1 of the substitute complaint appears to contain certain elements of mild redundancy and a few brief references to evidentiary matters, we are of the opinion that it would be improper to hold that this count violates Rule 8, which requires in (f) that "all pleadings shall be so construed as to do substantial justice." See Keene Lumber Co. v. Leventhal, 1 Cir., 1948, 165 F. 2d 815. Accordingly we believe that the granting of the motion to dismiss cannot be justified by any reference to Rule 8, which at most, in our view, could only justify the court in striking those particular counts which proved offensive to the Rule.

The court gives as its second reason for dismissal of the action that "the complaint is so drafted that it could not satisfactorily be used by a judge for the purpose of making rulings during the course of a trial." Whereas this statement is doubtless true of the complaint taken as a whole, we believe it has no valid application to Count V.

The third reason for dismissal of the action was that "the complaint is drafted in such a prejudicial manner as to make it improper for submission to a jury * * *." We find nothing prejudicial in Count V.

For its fourth reason the court asserts that "the plaintiff failed to comply with the specific directions given by the Court on May 24, 1955." In our view of this case, the plaintiff has made at least a partial compliance as evidenced by Count V. Failure to comply with respect to other counts would justify the granting of a motion to strike those particular counts, but would not be a valid reason for denying plaintiff the benefit of those counts which successfully met the court's requirements.

We believe in Count V the plaintiff has clearly, correctly, and with reasonable conciseness set forth a cause of action in deceit. As to the other counts we express no opinion.

The judgment of the district court is vacated and the case is remanded for further proceedings not inconsistent with this opinion.

MAGRUDER, Chief Judge (concurring).

I concur in the opinion and judgment of the court.

It appears from the transcript that on May 24, 1955, the district court had a hearing on the sufficiency of the complaint as it then stood, including Count V, which at that time was entirely different from the rewritten Count V in...

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8 cases
  • Cipollone v. Liggett Group, Inc., Civ. A. No. 83-2864.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 20 Septiembre 1984
    ...1350, 18 L.Ed.2d 436 (1967) (warranty of fitness for use and negligent failure to warn, under Pennsylvania law); Cooper v. R.J. Reynolds Tobacco Co., 234 F.2d 170 (1st Cir.1956) on remand, 158 F.Supp. 22 (D.Mass.1957), aff'd, 256 F.2d 464 (1st Cir.1958) (fraud under Massachusetts law); Albr......
  • Lartigue v. RJ Reynolds Tobacco Company
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 19 Abril 1963
    ...OR NEGLIGENTLY." Cf. LeBlanc v. Louisiana Coca Cola Bottling Co., 1952, 221 La. 919, 60 So.2d 873 and Cooper v. R. J. Reynolds Tobacco Co., 1 Cir., 1956, 234 F.2d 170; 1958, 1 Cir., 256 F.2d 464, cert. den'd 358 U.S. 875, 79 S.Ct. 112, 3 L.Ed.2d 18 Prosser writes: "There is no need to borro......
  • Nagler v. Admiral Corporation, 364
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 2 Octubre 1957
    ...Oil & Refining Co., 5 Cir., 243 F.2d 885; Rennie & Laughlin, Inc. v. Chrysler Corp., 9 Cir., 242 F.2d 208, 213; Cooper v. R. J. Reynolds Tobacco Co., 1 Cir., 234 F.2d 170, and other cases cited below. And this has been true generally in both English and American law and legal history, for c......
  • RJ Reynolds Tobacco Company v. Hudson, 18315.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 14 Marzo 1963
    ...See Judge Goodrich's concurring opinion in Pritchard v. Liggett Myers Tobacco Co., 3 Cir., 1961, 295 F.2d 292; Cooper v. R. J. Reynolds Tobacco Co., 1 Cir., 1956, 234 F.2d 170.5 Paragraph 8 raises disputed questions of fact as to Reynolds' alleged misconduct and whether Hudson's failure to ......
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1 books & journal articles
  • Low-fat Foods or Big Fat Lies?: the Role of Deceptive Marketing in Obesity Lawsuits
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 22-3, March 2006
    • Invalid date
    ...(last visited Mar. 16, 2006). 83. Id. 84. Id. 85. Id. 86. See Cooper v. R.J. Reynolds Tobacco, 234 F.2d 170, 173-74 & n.l (1st Cir. 1956) (finding tobacco manufacturer liable for various statements that indicated cigarettes were harmless); Reynolds Will Pay $10 Million in Joe Camel Lawsuit,......

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