Adams v. Lederle Laboratories, 83-0226-CV-W-0.
| Decision Date | 29 April 1983 |
| Docket Number | No. 83-0226-CV-W-0.,83-0226-CV-W-0. |
| Citation | 569 F. Supp. 234 |
| Parties | Lydia ADAMS, individually and as a representative of a class composed of herself and others, Plaintiff, v. LEDERLE LABORATORIES, et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
COPYRIGHT MATERIAL OMITTED
Roger Guy Burnett, Sevier & Burnett, Timothy H. Bosler, Liberty, Mo., for plaintiff.
W. Russell Welsh, Sarah W. Hays, Douglas S. Laird, Gage & Tucker, Kansas City, Mo., for Bristol Labs.
Joseph A. Sherman, Jackson & Sherman, P.C., Kansas City, Mo., for Pfizer, Inc.
John W. Cowden, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, Mo., for The Upjohn Co.
Charles Christian Kirley, C. Brooks Wood, Jackson, Dillard, Brouillette, Weisenfels, Phillips & Wood, P.C., Kansas City, Mo., for A.H. Robins Co.
Paul E. Vardeman, Polsinelli, White, Schulte & Vardeman, Kansas City, Mo. and Timothy A. Harr, Covington & Burling, Washington, D.C., for Glaxo, Inc.
Thomas E. Deacy, Jr., Patrick C. Cena, Dale L. Beckerman, Deacy & Deacy, Kansas City, Mo., for SmithKline Beckman Corp.
Thomas O. Baker, Thomas N. Sterchi, Baker & Sterchi, Kansas City, Mo., for E.R. Squibb & Sons, Inc. Jack G. Beamer, Lee E. Wells, Merrick, Beamer, Wells & Slagg, Kansas City, Mo., for Parke-Davis.
John M. Kilroy, Sr., Thomas F. Fisher, Shughart, Thomson & Kilroy, Kansas City, Mo., for Lederle Laboratories.
Neal E. Millert, Larry J. Tyrl, James, Millert, Houdek, Tyrl & Sommers, Kansas City, Mo., for Reid-Provident Labs (Tutag).
Thomas K. Riden, Riden, Watson & Goldstein, P.A., St. Petersburg, Fla., Thomas A. Sweeny, Popham, Conway, Sweeny, Fremont & Bundschu, Kansas City, Mo., for Saron Pharmacol Corp.
Curtis E. Woods, Gail M. Schroeger, Spencer, Fane, Britt & Browne, Kansas City, Mo., for Elder Pharmaceuticals.
John Harl Campbell, Campbell & Bysfield, Kansas City, Mo., for Ulmer Pharmacal.
William R. Fish, Knipmeyer, McCann, Fish & Smith, Kansas City, Mo., for Dart Industries.
Fred Wilkins, Stephen B. Millin, Jr., Wilkins & Millin, P.C., Kansas City, Mo., for Lannett Co., Inc.
Michael J. Gallagher, Wassberg, Gallagher & Jones, Kansas City, Mo., for Mayrand, Inc.
Michael J. Gallagher, Wassberg, Gallagher & Jones, Kansas City, Mo., for Rowell Labs, Inc.
ORDER ON MOTION TO REMAND
This is a products liability case, presently pending as a class action, in which plaintiff Lydia Adams, individually and as representative of the class, seeks damages for personal injuries allegedly resulting from administration of the drug tetracycline.1 The cause was initially filed in the Circuit Court of Clay County, Missouri, and subsequently removed to this Court. The matter comes before me now on plaintiff's motion to remand.
A brief background summary will suffice. Plaintiff's original petition was filed in the state court on February 10, 1983. On the same day, pursuant to plaintiff's motion but prior to service of process and without other notice to any defendant, the state court certified a class action under Rule 52.08, Missouri Rules of Court. The class was to consist of "all of those persons residing in certain counties in Western and Northwestern Missouri who have been administered prenatally during the last half of pregnancy or postnatally during the first ten (10) years of life the drug commonly known as tetracycline and its derivatives and who have suffered discoloration of or structural deterioration of the teeth and other similar damage." On February 15, 1983, still prior to service upon any defendant and without other notice, the state court granted plaintiff's motion to "expand" the class by adding residents of certain other Northwestern Missouri counties.
On February 16, 1983, plaintiff filed a First Amended Petition in the state court. Pursuant to Rule 55.33(a), Missouri Rules of Court, that amended petition was filed "as a matter of course" (i.e. without the necessity of court approval) since, as alleged therein, it was filed prior to service of the original petition upon any of the defendants. So far as I can determine from a careful reading of both petitions, the only differences between the two are in the fact that the amended petition fails to name one of the 20 defendants which were named in the original petition (Breipohl Drug Co.) and gives a changed name for several others,2 and in the fact that in some instances the amended petition lists the name and address of a specific person to be served on behalf of a defendant rather than simply listing an address for the defendant. All these changes appear in the captions of the two petitions; the bodies of the two are identical. None of the defendants are mentioned by name in the body of either petition.
According to the averments of the removal petition, which I accept as true since plaintiff has taken no issue with them in the following respects, Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97-8, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921); Quick Erectors, Inc. v. Seattle Bronze Corp., 524 F.Supp. 351, 354 (E.D.Mo.1981), on February 17, 1983, defendant Bristol Meyers filed a motion in the Clay County Circuit Court requesting that court to set aside its class certification orders of February 10 and 15. Although Bristol Meyers had not yet been served in the action (such service occurred on February 24, 1983), it had learned of the matter by means of an article appearing in the Kansas City Star newspaper on February 16, 1983. The motion was denied by the court and on the same day Bristol Meyers filed a petition for mandamus in the Missouri Court of Appeals, Western District, seeking an order requiring the Clay County Circuit Court to vacate its class certification orders of February 10 and 15. Still on that same day the Court of Appeals issued what is commonly known as a "stop order," prohibiting the Clay County Circuit Court from taking further action in the matter until final decision by the Court of Appeals after briefing and argument.
There matters stood until February 28, 1983, when defendants Bristol Meyers and Pfizer filed their verified petition for removal to this Court, accompanied by the necessary bond and notice to plaintiffs. See 28 U.S.C. § 1446. In the eleven day interim, apparently, the removing defendants ascertained that there was in fact complete diversity of citizenship between the plaintiff and all viable named defendants, since plaintiff was a citizen of Missouri and since all defendants named in the amended petition, save one, were citizens of other states, and since the sole defendant which constituted an exception (Metro Med Incorporated) was in fact a defunct corporation whose corporate charter had been forfeited by the Missouri Secretary of State on January 1, 1980. The removal petition recited these facts with respect to diversity of citizenship, and further recited that none of the other defendants had yet been served.
As events subsequently unfolded, the removing defendants' belief that none of the other defendants had been served prior to filing the removal petition proved to be in error. In fact eight defendants (including Bristol Meyers and Pfizer) had been served by that point in time (see Appendix I). The confusion on the subject arose from the fact that the Clerk of the Clay County Circuit Court had delivered the summons for each defendant to counsel for plaintiff (apparently in conformity with local custom and practice), and counsel had requested that the serving officials send their returns directly to him rather than to the Clerk. Those returns were not filed by plaintiff's counsel until March 25, 1983, and accordingly when counsel for Bristol Meyers and Pfizer inquired of the Clerk on February 28 they were advised that no return on service had been made with respect to any of the defendants.
Of the six non-removing defendants which had been served as of February 28, 1983, none filed a consent to the removal within 30 days of such service, although two (Dart Industries and Physicians & Hospitals Supply Co.) did file a consent within 30 days after the removal petition itself was filed. The remaining four defendants which had been served as of February 28, 1983 (Rowell Laboratories, Mayrand, Inc., Glaxo, Inc., and Saron Pharmaceutical Corp.) did not file a consent to removal within 30 days of either the date of service upon them or the date the removal petition was filed, although all have now done so (see Appendix I). According to the affidavits submitted in connection with the present motion, however, all defendants which had been served by the time the removal petition was filed did join therein within 30 days of learning that diversity of citizenship existed.
The motion to remand raises three issues: (a) whether Breipohl Drug Co., a Missouri corporation which was named as a defendant in the original petition but not in the amended petition, should be considered as a defendant in the case at the time the removal petition was filed; (b) whether all necessary consents to removal were timely filed; and (c) whether Bristol Meyers and Pfizer waived their right to remove by participating to the extent mentioned in the state court proceedings. Those issues will be dealt with seriatim.
STATUS OF BREIPOHL DRUG CO.
Breipohl Drug Co. was named as a defendant in plaintiff's original petition. It was not named in the amended petition upon which removal was made. Plaintiff asserts that Breipohl's omission from the amended petition was inadvertent and argues that, in any event, an order of the Clay County Circuit Court was necessary before Breipohl could be dismissed from the case. Defendants respond with the suggestion that it is the fact of Breipohl's omission which is important, rather than the reasons therefor, and that a court order "dismissing" Breipohl was unnecessary. The point is critical since Breipohl is a domiciliary Missouri corporation, the presence of which would not only destroy diversity and hence defendants' only...
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