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PELMAN v. MCDONALD'S CORPORATION

April 7, 2003

ASHLEY PELMAN, A CHILD UNDER THE AGE OF 18 YEARS, BY HER MOTHER AND NATURAL GUARDIAN ROBERTA PELMAN, ROBERTA PELMAN, INDIVIDUALLY, JAZLYN BRADLEY, A CHILD UNDER THE AGE OF 18 YEARS, BY HER FATHER AND NATURAL GUARDIAN ISRAEL BRADLEY, AND ISRAEL BRADLEY, INDIVIDUALLY, PLAINTIFFS
v.
MCDONALD'S CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Robert W. Sweet, District Judge.

OPINION

Third party pro se Rivka Robbin Freeman ("Freeman"), a forty-three-year-old woman with a history of breast cancer she claims was caused by her eating habits, including eating at McDonald's outlets as a youth, has moved pursuant to Rule 19(a) of the Federal Rules of Civil Procedure to join as a plaintiff the proposed class action initiated by overweight teenagers and their parents against defendant McDonald's Corporation ("McDonalds"), alleging that the teenagers' obesity and concomitant health problems were caused by their heavy diet of McDonalds' products and that McDonalds engaged in deceptive advertising regarding the true unhealthy nature of their products.

As noted in an earlier opinion, this lawsuit has generated a great deal of attention in the press, in television satire and editorial comment. It is only natural that this interest will result in others seeking to join the plaintiffs in their fight against "Big Food," whether as a cause celebre or, as with Freeman, to pursue their own agenda and concerns with the fast food industry. If the plaintiffs' newly amended complaint survives a likely motion to dismiss by McDonalds and if a class action is certified, a number of minors and their parents will have the opportunity to join this action. Until such time, however, there are no necessary parties lacking from this controversy. For the following reasons, therefore, Freeman's motion is denied.

Prior Proceedings

The plaintiffs commenced suit on August 22, 2002, in the State Supreme Court of New York, Bronx County. Defendants removed the action to the Southern District of New York on September 30, 2002, alleging as the basis of removal that the plaintiffs had fraudulently joined non-diverse parties in order to defeat diversity jurisdiction pursuant to 28 U.S.C. § 1332.

McDonalds moved to dismiss plaintiffs' complaint on October 7, 2002. The plaintiffs cross-moved to remand and in opposition to the motion on October 25, 2002. By order dated January 22, 2002, the complaint was dismissed in its entirety, but the plaintiffs were granted leave to amend. Plaintiffs filed an amended complaint on February 19, 2003. McDonalds' response to the amended complaint is due April 14, 2003.

Freeman first sought to get involved in this action by an affidavit dated January 6, 2003, in which she offered her services as an "Independent Nutritionist." In her affidavit, she, inter alia, (1) suggested that the complaint be expanded to allege claims against other defendants, including beef and chicken producers, pesticide manufacturers, producers of trans fat products, health care insurers, and the Department of Health and Mental Hygiene; (2) responded to various allegations in the original complaint as well discussed McDonalds' products; and (3) offered recommendations to McDonalds, including that she be appointed to assist McDonalds in "balanced meals training" at a base pay of $500,000 in addition to bonuses and stock options.

By motion dated March 13, 2002, Freeman moved to join as a party. Freeman alleges that she seeks as the basis of her relief, inter alia: (1) an order certifying the plaintiff-class; (2) an order enjoining McDonalds from the production, distribution and sale of products containing chemically altered hydrogenated trans fats; (3) an order that McDonalds must find a supplier of french fries and hash browns that are not processed and a supplier for salad dressings that do not contain chemically altered hydrogenated oil or omega 6 oils; (4) an order enjoining McDonalds from frying their french fries in chemically altered hydrogenated oil and instead bake the french fries; (5) an order that McDonalds may only sell grilled meat, chicken and fish; and (6) an order that McDonalds advertise information on balanced meals, including Freeman's particular theory of "Zone Guidelines." McDonalds responded on March 31, 2003, and the motion was considered fully submitted on April 2, 2003.*fn1

Facts

Freeman states in her affidavit that she should be joined to the action because (1) she is a forty-three-year-old New York resident and mother of three children; (2) she was diagnosed with breast cancer at age twenty-five and has recently suffered a relapse on December 18, 2002 shortly after consuming burgers and french fried potatoes*fn2; (3) she ate at McDonalds at least once a week from the time she was seven until she was twenty nine; (4) she acts to prevent diabetes and breast cancer; and (5) during her childhood, Freeman ate red meat at least five times a week and, on a daily basis, ate french fries and trans fatty foods.

Discussion

I. Standard of Review

In addressing the present motion, the Court is mindful that Freeman is proceeding pro se and that her submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Her pleadings should be read "liberally" and interpreted "to raise the strongest arguments they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, the Court is also aware that pro se ...


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