United States District Court, S.D. New York
Feb 2 2004
In re: REZULIN PRODUCTS LIABILITY LITIGATION, This Document Relates to: 03 Civ. 2861, 03 Civ. 2862, 03 Civ. 2863, 03 Civ. 2864, 03 Civ. 2864, 03 Civ. 2865, 03 Civ. 2866
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
PRETRIAL ORDER NO. 228
(Motions to Remand)
Plaintiffs in these cases removed from the Florida courts and
transferred here move to remand on the ground that removal, which was
premised on diversity of citizenship, was improper because of the
presence of non-diverse defendants, viz. local sales representatives,
physicians and one or more pharmacies. In a report and recommendation
dated December 24, 2003, Magistrate Judge Gorenstein recommended denial
of the motion on the ground that the non-diverse defendants were joined
improperly. Plaintiffs object.
Plaintiffs' objections contain a number of arguments repeatedly
rejected by this Court, and little purpose would be served by again
plowing that familiar ground. Suffice it to say that plaintiff's reliance
on Albertson v. Richardson-Merrell, Inc., 441 So.2d 1146 (Fla.
App. 1983), for the proposition that Judge Gorenstein erred is baseless
in view of the fact that Albertson did notaddress the
sufficiency of the complaint there at issue in terms of the requisite
particularity of its pleading of claims of misrepresentation or fraud.
Certainly it did not do so in the context at issue here six
otherwise similar complaints which collectively join approximately 103
plaintiffs and well over 100 individual defendants. To suggest, in these
circumstances, that these form pleadings allege fraud or
misrepresentation by individual defendants with particularity is to push
the edges of the envelope beyond the bursting point. Indeed, Fed.R. Civ.
P. 9(b) and its even broader Florida counterpart were designed, among
other things, to foreclose such mass produced, unparticularized attempts
to tar scores of individuals with fraud charges.
The motion to remand is denied.
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