Trauth v. Forest Laboratories, Inc. et al

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Louis F. Trauth, Jr. motion is GRANTED. IT IS FURTHERE ORDERED that plaintiff shall pay an initial partial filing fee of $3 3.28 within thirty (30) days from the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the ca se number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because this Court lacks subject matter jurisdiction over plaintiff's claims. A separate Order of Dismissal shall accompany this Memorandum and Order. ( Initial Partial Filing Fee due by 3/18/2014.) Signed by District Judge E. Richard Webber on February 18, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LOUIS F. TRAUTH, JR.,
Plaintiff,
v.
FOREST LABORATORIES, INC.,
et al.,
Defendants.

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No. 4:13CV01930 ERW

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Louis F. Trauth, Jr.
(registration no. 1224028) for leave to commence this action without payment of the
required filing fee. For the reasons stated below, the Court will grant the motion and
assess an initial partial filing fee of $33.28. See 28 U.S.C. § 1915(b)(1). Furthermore,
based upon a review of the complaint, the Court will dismiss this action for lack of
subject matter jurisdiction.
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma
pauperis is required to pay the full amount of the filing fee. If the prisoner has
insufficient funds in his prison account to pay the entire fee, the Court must assess and,
when funds exist, collect an initial partial filing fee of 20 percent of the greater of (1)

the average monthly deposits in the prisoner's account; or (2) the average monthly
balance in the prisoner's account for the prior six-month period. See 28 U.S.C. §
1915(b)(1). After payment of the initial partial filing fee, the prisoner is required to
make monthly payments of 20 percent of the preceding month's income credited to the
prisoner's account. See 28 U.S.C. § 1915(b)(2). The agency having custody of the
prisoner will forward these monthly payments to the Clerk of Court each time the
amount in the prisoner's account exceeds $10, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
complaint. See 28 U.S.C. § 1915(a)(1),(2). A review of plaintiff's account statement
indicates an average monthly deposit of $166.42, and an average monthly account
balance of $48.97.

Plaintiff has insufficient funds to pay the entire filing fee.

Accordingly, the Court will assess an initial partial filing fee of $33.28, which is 20
percent of plaintiff's average monthly deposit.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed
in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from
such relief. An action is frivolous if it "lacks an arguable basis in either law or fact."
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
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undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987). An action fails to state a claim
upon which relief can be granted if it does not plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570
(2007).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify the
allegations in the complaint that are not entitled to the assumption of truth. Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include "legal conclusions" and
"[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements." Id. at 1949. Second, the Court must determine whether the
complaint states a plausible claim for relief. Id. at 1950-51. This is a "context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense." Id. at 1950. The plaintiff is required to plead facts that show more than the
"mere possibility of misconduct." Id. The Court must review the factual allegations
in the complaint "to determine if they plausibly suggest an entitlement to relief." Id. at
1951. When faced with alternative explanations for the alleged misconduct, the Court
may exercise its judgment in determining whether plaintiff's conclusion is the most
plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 51-52.
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Moreover, in reviewing a pro se complaint under § 1915(e)(2)(B), the Court
must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404
U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the
plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S.
25, 32 (1992).
The Complaint
Plaintiff, an inmate at the Georgia Department of Corrections in Davisboro,
Georgia, seeks unspecified monetary damages in this action against defendants Forest
Laboratories, Inc., Forest Pharmaceuticals, Inc., James Morrow, M.D., and H.
Lundbeck. Plaintiff's allegations arise out of his use of the drug, Lexapro. More
specifically, plaintiff claims that on September 29, 2003, after taking Lexapro as
prescribed by a physician, he "shot and killed his wife of 37 years while experiencing
hallucinations, hostility, outburst, depression, and memory loss." Plaintiff states that
he "has suffered loss of consortium, injuries to his person, the wrongful death of his
wife, and has been the victim of fraud, fraudulent concealment, misrepresentation,
failure to warn, negligence, and strict liability."
Plaintiff states that he is a citizen of the State of Georgia; defendant Forest
Laboratories is a corporation under the laws of the state of Delaware, having its
principal place of business in New York; defendant Forest Pharmaceuticals is a
corporation under the laws of the state of Delaware, having its principal place of
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business in Missouri; defendant James Morrow, M.D., is a citizen of the State of
Georgia; and defendant H. Lundbeck is a foreign corporation located in Denmark.
Discussion
At the outset, the Court notes that plaintiff is invoking federal court jurisdiction
pursuant to 28 U.S.C. § 1332 (diversity); however, he also makes reference to 28
U.S.C. §1331 (federal question) and 28 U.S.C. § 1407 (a multidistrict litigation
statute).
The Court finds that federal jurisdiction is lacking under 28 U.S.C. § 1332, given
that both plaintiff and defendant Dr. James Morrow are citizens of the State of
Georgia.1 Moreover, federal question jurisdiction pursuant to 28 U.S.C. § 1331 is
inapplicable, because plaintiff does not claim that the instant action arises under the
Constitution, laws, or treaties of the United States. Although plaintiff complains that
defendants failed to comply with the FDA's labeling requirements under 21 C.F.R. §
201.80(e) (providing that the labeling for prescription drugs shall describe serious
adverse reactions and potential safety hazards), plaintiff does not claim, nor does it

In addition, plaintiff has failed to allege that the amount in controversy
exceeds $75,000. See 28 U.S.C. § 1332.
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appear, that this regulation provides a private right of action.2 Last, § 1407 is a
multidistrict litigation statute and does not confer federal jurisdiction in this case.3
For these reasons, the instant action will be dismissed for lack of federal subject
matter jurisdiction.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee
of $33.28 within thirty (30) days from the date of this Order. Plaintiff is instructed to
make his remittance payable to "Clerk, United States District Court," and
Moreover, to the extent that plaintiff is attempting to assert a claim that
Lexapro was "misbranded," the Court notes that it is the FDA that "has the authority
to enforce the prohibition on misbranding by initiating injunction proceedings,
criminal prosecutions, or seizure of the misbranded drugs." Tucker v. SmithKline
Beecham Corp., 596 F.Supp.2d 1225, 1229 n.3 (S.D. Ind. 2008).
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Title 28 U.S.C. § 1407(a) provides, as follows:
When civil actions involving one or more common
questions of fact are pending in different districts, such
actions may be transferred to any district for coordinated
or consolidated pretrial proceedings. Such transfers shall
be made by the judicial panel on multidistrict litigation ...
upon its determination that transfer for such proceedings
will be for the convenience of parties and witnesses and
will promote the just and efficient conduct of such actions.
See also Fed. Judicial Ctr., Moore's Federal Practice Manual for Complex Civil
Litigation § 31.13 (3d ed. 2000). The Court takes judicial notice of the fact that
there is no multidistrict litigation involving the drug, Lexapro, presently pending in
the United States District Court for the Eastern District of Missouri.
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to include upon it: (1) his name; (2) his prison registration number; (3) the case number;
and (4) that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint, because this Court lacks subject matter jurisdiction
over plaintiff's claims.
A separate Order of Dismissal shall accompany this Memorandum and Order.
So Ordered this 18th day of February, 2014.

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E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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