United States District Court, Southern District of New York
June 3, 2003
IN RE: REZULIN PRODUCTS LIABILITY LITIGATION
The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
PRETRIAL ORDER NO. 151
(Motions to Remand and to Dismiss and for Summary Judgment — Ward)
This action was brought in a New Mexico state court and removed to federal court on the basis of diversity notwithstanding the presence of a non-diverse physician and a non-diverse hospital pharmacy defendant. Plaintiff moves to remand on the ground that the non-diverse defendants deprive the Court of complete diversity. Defendant Dr. Patricia Bryant, the non-diverse physician defendant, moves to dismiss the complaint for untimely service and, in any case, for summary judgment dismissing the complaint based on plaintiff's failure to submit a claim to the New Mexico Medical Review Commission prior to bringing suit.
Magistrate Judge Katz has recommended, in a report dated May 14, 2003, that the motion to remand be denied, that Dr. Bryant's motion to dismiss be granted, and that Dr. Bryant's motion for summary judgment dismissing the complaint be granted to the extent of dismissing the negligence and breach of warranty claims against her. No objections have been filed.
Plaintiff's motion to remand is denied. Dr. Bryant's motions to dismiss the complaint and for summary judgment of dismissal are granted to the extent that the complaint is dismissed in its entirety and summary judgment of dismissal is entered against plaintiff on the claims against Dr. Bryant for negligence and breach of warranty, all substantially for the reasons stated in the report and recommendation.
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