Fine v. Philip Morris, Inc.

• Citation: 239 F. Supp. 361
• Parties: Andrew M. FINE, Jr., Plaintiff, v. PHILIP MORRIS, INC., R. J. Reynolds, Inc., American Tobacco Inc., Liggett & Myers Tobacco Co., Inc., P. Lorillard Co., Inc.; Leo Burnett Co., Inc., Hill & Knowlton, Inc., Tobacco Institute, Inc., and W. T. Hoyt, Executive Director of the Council for Tobacco Research— U.S.A., an unincorporated association, formerly known as Tobacco Industry Research Committee, Defendants.
• Decision Date: 22 December 1964
• Court: U.S. District Court — Southern District of New York

239 F. Supp. 361

Andrew M. FINE, Jr., Plaintiff, v. PHILIP MORRIS, INC., R. J. Reynolds, Inc., American Tobacco Inc., Liggett & Myers Tobacco Co., Inc., P. Lorillard Co., Inc.; Leo Burnett Co., Inc., Hill & Knowlton, Inc., Tobacco Institute, Inc., and W. T. Hoyt, Executive Director of the Council for Tobacco Research— U.S.A., an unincorporated association, formerly known as Tobacco Industry Research Committee, Defendants.

United States District Court S. D. New York.

October 26, 1964.

On Reargument December 22, 1964.

Speiser, Shumate, Geoghan & Law, New York City, for plaintiff.

Conboy, Hewitt, O'Brien & Boardman, New York City, for Philip Morris, Inc.

Chadbourne, Parke, Whiteside & Wolff, New York City, for American Tobacco, Inc.

Webster, Sheffield, Fleischmann, Hitchcock & Chrystie, New York City, for Liggett & Myers Tobacco Co., Inc.

Perkins, Daniels & McCormack, New York City, for P. Lorillard Co., Inc.

Eugene J. T. Flanagan, New York City, for Leo Burnett Co., Inc.

Simpson, Thacher & Bartlett, New York City, for Hill & Knowlton, Inc.

Weil, Gotshal & Manges, New York City, for Tobacco Institute, Inc.

Clark, Carr & Ellis, New York City, for The Council for Tobacco Research — U.S.A.

McLEAN, District Judge.

This action was begun in the Supreme Court, New York County. Defendants removed it to this court, claiming that the action is removable under 28 U.S.C. § 1441(b), or, in the alternative, under 28 U.S.C. § 1441(c). Plaintiff moves to remand.

The complaint is 70 pages in length. It contains 29 separately stated "causes of action." Each cause of action begins by realleging all the paragraphs of the complaint which have preceded it, so that the 29th incorporates the entire complaint.

Plaintiff's grievance is that he allegedly contracted lung cancer as a result of smoking Philip Morris cigarettes. He has sued five cigarette manufacturers, an advertising agency, a public relations firm, and two tobacco research organizations. The first ten causes of action are directed only against defendant Philip Morris, Inc. Other causes of action are directed against other defendants, and the last is directed against all. The various causes of action assert different grounds of liability, i. e., negligence, breach of warranty, misrepresentation, etc.

The ground alleged in the sixth cause of action (Paragraphs 111-117) is that cigarettes contain hazardous toxic substances within the meaning of the federal Hazardous Substances Labeling Act (15 U.S.C. § 1261 et seq.); that they are products intended and suitable for home and household use, within the meaning of that Act; that defendant Philip Morris, Inc. violated the Act by failing to attach warning labels to the packages and that in consequence, defendant Philip Morris, Inc. "by virtue of its violation of the provisions of said Act enacted and designed to protect consumers of products, is civilly liable to plaintiff" in the sum of $1,000,000.

These allegations purport to state a claim arising under a federal statute. The right allegedly created by federal statute is an essential element of plaintiff's claim. The right will be supported if the statute is given one construction or effect, and defeated if it receives another. Consequently, the claim "arises under the * * * laws * * * of the United States" within the meaning of 28 U.S.C. § 1331. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936).

This being so, and inasmuch as the claim is not obviously frivolous, this court has jurisdiction over it and power to determine the issue thus tendered. Whether the claim is sufficient in law is immaterial. On this motion to remand, the question is solely whether this court has jurisdiction, not whether the sixth cause of action states a claim upon which relief can be granted. Since this cause of action asserts a federal claim which is not plainly unsubstantial, this court has jurisdiction, regardless of whether it ultimately turns out that the claim is good or bad. Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L.Ed. 939 (1946); Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). There is thus no need to determine on this motion whether the Act, properly construed, does or does not give rise to a private right of action for its violation.

What is to be done with the other 28 causes of action which allege grounds of liability which concededly raise no federal question? Defendants maintain that this court has jurisdiction over them by virtue of the doctrine of pendent jurisdiction laid down in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). The analogy between this case and Hurn v. Oursler does not appear to be sound. Hurn v. Oursler involved two causes of action, one for copyright infringement and the other for unfair competition. The court held that since the court had jurisdiction of the federal claim of copyright infringement, and since the same acts which were the basis of that claim were also the basis of the claim of unfair competition, the court had jurisdiction of the latter claim as well. The court pointed out that the finding of no copyright infringement "contains every essential element necessary to justify the conclusion that there was likewise no unfair competition * * *." (289 U.S. at 247, 53 S.Ct. at 590)

That is not the situation here. Granted that plaintiff has allegedly suffered only one injury, the various grounds for recovery which he asserts do not depend upon the same facts. Some of his grounds may be valid and others may not. If it is ultimately held that cigarettes are not toxic substances within the meaning of the federal act, it may nevertheless still be held that defendants are liable for negligence or breach of warranty. The doctrine of pendent jurisdiction would be strained beyond the breaking point if 28 different non-federal claims are regarded as appending to one federal claim under these circumstances.

Nor do I think that much weight should be placed upon the rather uphappy device employed by the draftsman of the complaint of incorporating by reference in each cause of action all the preceding allegations of the complaint. Inartistic as this practice is, it does not necessarily merge into a single claim what would otherwise be separate claims. The incorporation may be disregarded as surplusage. A claim for injury due to negligence is different from a claim for damages for breach of warranty because it depends on different facts. A claim for injury caused by violation of the Hazardous Substances Labeling Act is different from a claim for common law deceit. No matter how the pleader may have confused them by unnecessary repetition of previous paragraphs of the complaint, we still have, in my opinion, the situation which is contemplated by 28 U.S.C. § 1441(c). That section provides:

"Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

The various causes of action alleged are separate and independent. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951) is distinguishable because there each of the claims involved "substantially the same facts and transactions" (341 U.S. at 16, 71 S.Ct. at 541), which is not true here.

This action, therefore, is not removable under 28 U.S.C. § 1441(b) but is removable under Section 1441(c). Under Section 1441(c) this court has discretion as to how to handle the non-federal claims.

It seems to me a wise exercise of that discretion to remand all causes of action except the sixth to the state court. I see no reason why this court should be burdened with disposing of 28 non-federal claims merely because plaintiff has asserted one federal claim which is a comparatively minor aspect of the entire litigation. The motion to remand is therefore granted as to all causes of action except the sixth. As to that cause of action, it is denied.

Settle order on notice.

On Reargument.

McLEAN, District Judge.

The court has granted reargument of plaintiff's motion to remand this action to the Supreme Court, New York County, from which it was removed by defendants. Reargument was granted because of defendants' contention that a point was overlooked both by the court and by counsel upon the first argument which requires a result different from that heretofore reached by the court. The nature of the action is described in the court's opinion dated October 26, 1964. There is no need to repeat all that was said there. Suffice to say that plaintiff seeks damages for lung cancer allegedly contracted as a result of smoking Philip Morris cigarettes. His complaint contains 29 counts or "causes of action," only one of which alleges a claim arising under the laws of the United States.

Defendants asserted in their petition for removal that this court had jurisdiction under 28 U.S.C. § 1331(a) because the complaint alleged a federal claim, and that the action was removable under 28 U.S.C. § 1441(b), or, in the alternative, under Section 1441(c). The petition did not state that there was complete diversity of citizenship between the parties. The court held that the action was not removable under Section 1441(b), but was removable under Section 1441(c) which provides:

"Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

The court then held that since only one of the 29 causes of action...