United States District Court, S.D. New York
February 2, 2004.
In re: REZULIN PRODUCTS LIABILITY LITIGATION, This Document Relates to: 03 Civ. 2515
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
PRETRIAL ORDER NO. 226
(Purvis Motion to Remand)
The Mississippi plaintiff here sued the manufacturer defendants and a
Mississippi physician in the Mississippi state courts. The manufacturer
defendants removed the action, contending that the non-diverse physician
was joined fraudulently. Plaintiff moved to remand.
In a report and recommendation dated January 12, 2004, Magistrate Judge
Gabriel W. Gorenstein found that the medical malpractice claim, alone
among those against the physician, was legally sufficient and not joined
fraudulently. He did, however, conclude that the malpractice claim was
misjoined with the claims against the manufacturer defendants and
recommended that the claim against that defendant be severed and remanded
to the state courts. Plaintiff objects, contending that she cannot pursue
separate claims against the manufacturer defendants and the physician by
reason of the "one suit" provision of the Mississippi wrongful death
statute, a contention that the Magistrate Judge rejected.
The Mississippi wrongful death statute creates a cause of action for
wrongful death and provides in relevant part:
"The action for such damages may be brought in the
name of the personal representative of the
deceased person for the benefit of all persons
entitled under the law to recover, or by widow for
the death of her husband, or by the husband for
the death of the wife, or by the parent for the
death of a child, or in the name of a child, or in
the name of a child for the death of a parent, or
by a brother for the death of a sister, or by a
sister for the death of a brother, or by a sister
for the death of a sister, or a brother for the
death of a brother, or all parties interested may
join in the suit, and there shall be but one
(1) suit for the same death which shall ensue for
the benefit of all parties concerned, but the
determination of such suit shall not bar another
action unless it be decided on its merits."
Miss. Code Ann. § 11-7-13 (emphasis added).
It is plaintiff's submission that a severance and remand of her
claim against the physician would
require her to give up either that claim or the claims against the
There is no basis for this contention. The evident purpose of Section
11-7-13 was to require all plaintiffs claiming damages by reason of a
wrongful death to join in a single action. There is nothing in the
language of the statute that suggests that where a plaintiff brings a
single action that is severed against the wishes of the plaintiff, the
plaintiff thereby loses its rights against the defendants in one or the
other of the severed portions of the action. Neither of the cases
plaintiff relies upon supports that proposition.
Chism v. Burlington Northern R.R.Co., No. 1:95CV351-B-D, 1996
WL408907 (N.D. Miss. July 1, 1996), was a diversity case in which the
plaintiff moved to add a non-diverse defendant and to remand the action
to state court for lack of complete diversity. In granting the motion,
the district court relied upon its view that a remand would be desirable
because "[h]aving both defendants in [the] action would promote the
efficient use of judicial resources and . . . [was] appropriate in the
absence of a significant federal interest in deciding the state law
issues raised in this cause." Id. at *3. It did not suggest that
the one action provision of the wrongful death statute would have
precluded a parallel state action against the non-diverse defendant;
indeed, it appears to have assumed that it would not have done so.
White v. Fisher-Price, Inc., Nos. 1:96CV114-D-D, 96CV137-D-D,
1996 WL408051 (N.D. Miss. June 24, 1996), also is inapposite. The issue
there was whether the consolidation in state court of two separate
wrongful death actions in only one of which was there complete
diversity of citizenship effectively combine the two into a
single case in which complete diversity was lacking and thus defeat
federal removal jurisdiction. The court relied on the one suit provision
of the wrongful death statute to conclude that the state court
consolidation order intended fully to merge the two actions and, in
consequence, foreclosed removal. But here too, the decision does not
suggest that a plaintiff whose single wrongful death action is severed
involuntarily is foreclosed from pursuing more than one of the actions
into which the single action was divided.
Accordingly, the objections to the report and recommendation are
overruled. Plaintiff's motion to remand is granted to the extent, and
only to the extent, that Count V of the complaint, the malpractice claim
against Dr. Clark is severed and remanded to the Mississippi court from
which it was removed.
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