United States District Court, S.D. New York
January 16, 2004.
IVAN DIMICH, individually and on behalf of others similarly situated, Plaintiff
MED-PRO, INC., ALBERS MEDICAL DISTRIBUTORS, INC., H. D. SMITH WHOLESALE DRUG COMPANY, and RITE AID CORPORATION, Defendants
The opinion of the court was delivered by: LOUIS STANTON, District Judge
Opinion and Order
Defendants removed this action from the Supreme Court of New York to
the United States District Court for the Southern District of New York,
asserting that the complaint met the jurisdictional requirements of
diversity of citizenship and an amount in controversy exceeding $75,000
set forth in 28 U.S.C. § 1332.
Plaintiff now moves to remand this action pursuant to
28 U.S.C. § 1447 (c). For the reasons set forth below, his motion is granted.
Plaintiff claims that defendants sold counterfeit Lipitor tablets to
him and to other members of a putative nationwide class. The complaint,
which alleges only state causes of action, seeks both monetary damages
and equitable relief on behalf of the class in the form of a medical
monitoring program ("MMP"), including medical
registry and research elements, to be funded by defendants.
Plaintiff, seeking remand, argues that there is no federal jurisdiction
because his monetary damages are insignificant and the amount in
controversy does not exceed $75,000.
In a removed action, "[the] party invoking [federal]
jurisdiction . . . has the burden of proving that it appears to a reasonable
probability that the claim is in excess of the statutory jurisdictional
amount." Gilman v. BHC Securities, Inc., 104 F.3d 1418, 1421
(2nd Cir. 1997) (quoting United Food & Commercial Workers Union,
Local 919 v. Centermark Properties Meriden Square, Inc.,
30 F.3d 298, 304-05 (2nd Cir. 1994)) (internal quotations omitted) (bracketed
material in Gilman). The defendant "must justify [its]
allegations that [the plaintiff's] complaint asserts claims exceeding
[$75,000] by a preponderance of evidence." Id. (quoting
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189
(1936)) (internal quotations omitted).
"The liberal standard for jurisdictional pleading is not a license for
conjecture." Morrison v. Allstate Indemnity Comp.,
228 F.3d 1255, 1268 (11th Cir. 2000). "Out of respect for the independence of
state courts, and in order to control the federal docket, `federal courts
construe the removal statute narrowly, resolving any doubts against
removability.'" Somlyo v. J. Lu-Rob Enterprises, Inc.,
932 F.2d 1043, 1045-46 (2nd Cir. 1991) (citing Shamrock Oil & Gas Corp.
v. Sheets, 313 U.S. 100, 108 (1941)).
"A claim for medical monitoring and research is injunctive in nature."
Katz v. Warner-Lambert Co., 9 F. Supp.2d 363, 364 (S.D.N.Y.
1998). "Where injunctive relief is requested, the amount in controversy
is measured by `the value of the object of the litigation.'"
Id. (quoting Hunt v. Washington State Apple Advertising
Comm'n, 432 U.S. 333, 347 (1977). While no doubt the MMP envisioned
by the plaintiff would cost the defendants over $75,000, the prevailing
method of calculating value in this Circuit is the "plaintiff's
viewpoint" approach, where one calculates the value to the plaintiff, not
the cost to the defendant. See id.; also Kheel v. Port of New York
Authority, 457 F.2d 46, 49 (2nd Cir. 1972).
Claims may only be aggregated "when several plaintiffs unite to enforce
a single title or right, in which they have a common and undivided
interest." Zahn v. International Paper Co., 414 U.S. 291, 294
(1973). "When an injunction protects rights that are separate and
distinct among the plaintiffs, the value of the injunction to the
plaintiffs may not be aggregated to sustain diversity jurisdiction."
Jackson v. Purdue Pharma Comp., 2003 WL 21356783, at *4 (M.D.
Fl. April 11, 2003) (quoting Morrison v. Allstate Indemnity
Comp., 228 F.3d 1255, 1271 (11th Cir. 2000). Each plaintiff has used
the counterfeit Lipitor for differing periods of time, and will have a
different need, if any, for medical monitoring and treatment. Their
interests in the proposed MMP cannot be aggregated, because they are
several, not joint as in the paradigm cases of "a single indivisible
res, such as an estate, a piece of property (the classic example),
or an insurance policy." See Gilman, 104 F.3d at 1423 (quoting
Bishop v. General Motors Corp., 925 F. Supp. 294, 298 (D.N.J.
1996). Thus, to establish federal jurisdiction defendants must show that
Mr. Dimich's interest in the MMP would exceed $75,000.
Benefits from an injunction must not be "too speculative and
immeasurable." Morrison, 228 F.3d at 1268-69 (quoting
Ericsson GE Mobile Communications, Inc. v. Motorola Communications
& Elecs., Inc., 120 F.3d 216, 221-22 (11th Cir. 1997)). Here,
any benefit that Mr. Dimich might receive from the MMP is entirely
speculative. There is no evidence that Mr. Dimich, as an individual
putative class member, has suffered, or is likely to suffer, any actual
harm. As in Jackson, "some may require little or no monitoring
and treatment, while others may require a great deal." 2003 WL 21356783,
at *4. It is simply impossible to know which, if any, putative class
members will tangibly benefit from the program. See Morrison,
228 F.3d at 1269. Thus defendants cannot meet their burden under
Gilman of proving by a preponderance of the evidence that the
actual benefit to Mr. Dimich will exceed $75,000.
The argument that each class member's claim involves $75,000, because
unless the MMP is established none of them will have the individual
benefit of it, is unpersuasive. It is the burden of the party seeking
removal to show that there is a measurable benefit to the particular
plaintiff, who in fact might not use the MMP at all.
Under similar circumstances, two courts in this district have reached a
different conclusion and denied remand. See In re Rezulin Products
Liability Litigation, 168 F. Supp.2d 136 (S.D.N.Y. 2001); Katz
v. Warner-Lambert Co., 9 F. Supp.2d 363, 364 (S.D.N.Y. 1998).
However, upon this examination of the speculative nature of Mr. Dimich's
claim of damages, the resulting remand comports with the principles
governing the removal statute, including the resolution of any doubts
against removability, set forth in Somlyo and the other
Accordingly, plaintiff's motion to remand is granted. The Clerk will
remand the action to the Supreme Court of the State of New York, New York
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