The opinion of the court was delivered by: Jack B. Weinstein, Senior District Judge
AND ORDER (MASONS)
Plaintiffs move (1) for class certification under Rule 23, and (2) to
sever from the Simon II litigation. Defendants move to transfer the case
to the District of Columbia. The motion to sever is granted. The motion
to transfer is denied. The motion for class certification will be
considered when the court considers a motion to dismiss.
This case was consolidated with the Simon II litigation in 2000
because of similarities between factual allegations in the cases.
Revisions to the Mason and Simon II complaints have substantially
eliminated the need for consolidation. Severance is granted.
"For the convenience of the parties and witnesses, in the interest of
justice a district court may transfer any civil action to any other
district or division where it might have been brought."
28 U.S.C. § 1404 (a). Transfer is discretionary. Filmline (Cross
Country) Prods., Inc. v. United Artist Corp., 865 F.2d 513, 520 (2d Cir.
When deciding whether to transfer a case, the court should make a
two-fold inquiry: "whether the action sought to be transferred is one
which might have been brought in the district court in which the movant
seeks to have the case litigated . If so, second, whether, considering
the convenience of parties and witnesses and the interest of justice a
transfer to the proposed district is appropriate." United States Fid.
& Guar. Co., v. Republic Drug Co., 800 F. Supp. 1076, 1079 (E.D.N.Y.
1992) (Internal quotations omitted). The movant bears the burden of
establishing that the transfer should be granted. Id.
This case was sent here from Texas, to be coordinated with the other
pending tobacco litigation, and then was consolidated with the other Simon
II litigation for purposes of efficiency. Defendants moved to transfer
this case to the District of Columbia twice before (where the claim could
have been brought) and the motions were denied. The reasons of judicial
economy upon which the court based those denials remain. In the interest
of justice, after further consideration, the renewed motion to transfer
is again denied. See Transcript of July 2, 2002 at 64-65.
Plaintiffs' complaint names three representative plaintiffs who are to
represent "individuals who have received or are receiving health care
services for the treatment of tobacco related illnesses, including, but
not limited to, lung cancer, heart disease, emphysema and chronic
obstruction pulmonary disease, which services have been paid for, or
are being paid for, by Medicare." Fourth Complaint, February 14, 2002,
at 1. The representatives seek to act as "private attorneys general"
under section 1395y(b)(3)(A) of title 42 of the United States Code, which
creates a private cause of action for damages.
The court has suggested that defendants bring a motion to dismiss.
While the court of appeals has ruled that the certification issue "does
not involve consideration of the merits of the case," e.g., Robinson v.
Metro-North Commuter R.R., 267 F.3d 147, 157 (2d Cir. 2001), the
statutory scheme and viability of the present claim need to be considered
in conjunction with the certification issue. Cf. Karin S. Schwartz, et
al, Notes from the Cave: Some Problems ...