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IN RE REZULIN PRODUCTS LIABILITY LITIGATION

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.

  SO ORDERED.

20040202

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