Locicero v. Sanofi-Aventis U.S. Inc. et al

Filing 21

DECISION AND ORDER ACCEPTING Judge McCarthy's 14 Report and Recommendation; DENYING Defendant sanofi-aventis's 15 Objections; DIRECTING the Clerk of the Court to remand this case to the New York State Supreme Court, County of Erie. Signed by William M. Skretny U.S.D.J. on 7/10/2009. (MEAL)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

B E V E R L Y LOCICERO, P L A IN T IF F , V. SANOFI-AVENTIS U.S. INC., A L D E N PHARMACY, INC., AND A L D E N PHARMACY, DEFENDANTS. D E C IS IO N AND ORDER 08-CV-489S

1.

P la in tif f commenced this action in New York State Supreme Court, County of

E rie , on or about July 9, 2007. On July 1, 2008, Defendant sanofi-aventis removed the case to this Court based on diversity, arguing that the non-diverse Pharmacy Defendants were f ra u d u le n tly joined. Plaintiff did not move to remand. 2. T h e Court referred this matter to the Honorable Jeremiah J. McCarthy, United

S ta te s Magistrate Judge, to hear and report upon dispositive motions and issue a Report a n d Recommendation for the consideration of the District Judge pursuant to 28 U.S.C. § 6 3 6 (b )(1 )(B ). (Docket No. 9). 3. A t the Rule 16 conference, Judge McCarthy expressed concern over the issue

o f the Court's subject matter jurisdiction and requested that the parties brief the issue of d iv e rs ity of citizenship. (Docket No. 10.) In a Report and Recommendation dated October 1 6 , 2008, Judge McCarthy recommended that this Court remand this case to the State of N e w York Supreme Court, County of Erie. (Docket No.14.) 4. O n October 29, 2008, Defendant sanofi-aventis timely filed Objections to

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Judge McCarthy's Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Local Rule 72.3(a)(3), and also requested that the Court consider a d d itio n a l evidence. A district court may consider additional evidence when reviewing a M a g is tra te Judge's Report and Recommendation. See 28 U.S.C. §636(b)(1) ("The judge m a y also receive further evidence or recommit the matter to the magistrate judge with in s tru c tio n s ."); Fed. R. Civ. P. 72(b) ("The district judge may accept, reject, or modify the re c o m m e n d e d disposition; receive further evidence; or return the matter to the magistrate ju d g e with instructions."). 5. S a n o f i-a v e n tis initially had requested that Judge McCarthy allow limited

d is c o v e ry on the issue of the fraudulent joinder of Alden Pharmacy. (Brief in Support of F e d e ra l Subject Matter Jurisdiction, Docket No. 11, pg. 9.) In his Report and

R e c o m m e n d a tio n , Judge McCarthy denied the request on the grounds that the discovery w e n t to the strength of Plaintiff's claims against Alden Pharmacy, which is not relevant to a fraudulent joinder determination. (Report and Recommendation, pg. 12.) Sanofi-aventis h a s not objected to Judge McCarthy's denial of its discovery request. However, it now asks th is Court to consider precisely the evidence Judge McCarthy found was not re le v a n t-- s p e c if ic a lly, a deposition of Alden Pharmacy's representative and a copy of a "P a tie n t Information Leaflet." This Court finds no clear error in Judge McCarthy's denial of s a n o f i-a v e n tis 's discovery request. Therefore, this Court will not consider the additional e v id e n c e . 6. T h e Court has thoroughly reviewed this case de novo and has considered

J u d g e McCarthy's Report and Recommendation, sanofi-aventis's Objections thereto and th e applicable law. Upon due consideration, this Court will accept Judge McCarthy's re c o m m e n d a tio n for the reasons stated in the Report and Recommendation. Sanofi-

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aventis's Objections are therefore denied. 7. S a n o f i-a v e n tis objects to the Report and Recommendation on the grounds

th a t: Judge McCarthy applied the incorrect legal standard for fraudulent joinder, Judge M c C a rth y based his determination solely on the Complaint, and, based on the deposition o f Defendant Alden Pharmacy's representative, it is clear that Plaintiff cannot ultimately p re v a il on any of her claims. 8. T h is Court disagrees with sanofi-aventis's contention that Judge McCarthy

a p p lie d the incorrect legal standard for fraudulent joinder. To establish fraudulent joinder, "[t]h e defendant must demonstrate, by clear and convincing evidence, either that there has b e e n outright fraud committed in the plaintiff's pleadings, or that there is no possibility, b a s e d on the pleadings, that a plaintiff can state a cause of action against the non-diverse d e f e n d a n t in state court. The defendant seeking removal bears a heavy burden of proving f ra u d u le n t joinder, and all factual and legal issues must be resolved in favor of the plaintiff." Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 (2d Cir. 1998). Sanofi-aventis argues th e standard for fraudulent joinder is more accurately articulated in In re Rezulin Products L ia b ility Litigation; "[w]hether there is a reasonable possibility that the relevant state's h ig h e s t court would rule in favor of the plaintiff were the issue presented to it". 133 F .S u p p .2 d 272, 280 (S.D.N.Y. 2001). However, most courts have rejected In re Rezulin's a rtic u la tio n of the fraudulent joinder standard as a misstatement of the law and have a d h e re d closely to Pampillonia's holding. See Arseneault v. Congoleum Corp.,

2002W L 4 7 2 2 5 6 , 5 (S.D.N.Y.2002) ("This court believes that the Court of Appeals did not in a d v e rte n tly use the language it did"). This Court, having reviewed the issue de novo, a g re e s with Judge McCarthy's decision to follow Pampillonia. 9. Next, sanofi-aventis argues that Judge McCarthy based his determination

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solely on the Complaint. However, it is clear that Judge McCarthy considered the entire re c o rd before him, not just the Complaint. Throughout his Report and Recommendation, J u d g e McCarthy references Plaintiff's Bill of Particulars: "Plaintiff's bill of particulars alleges th a t..." (Report and Recommendation, pg. 8); "The bill of particulars also refers to..." (Id.); "T h e bill of particulars also alleges that..." (Id.). Thus, Judge McCarthy did not "view the p le a d in g s in isolation from other information in this case," as sanofi-aventis alleges. (Objections to the Report and Recommendation, Docket No. 15, pg. 7.) 10. F in a lly, sanofi-aventis argues that, based on the deposition of Alden

P h a rm a c y's representative, it is clear that Plaintiff cannot ultimately prevail on any of her c la im s . As already discussed, this Court declines to consider this additional evidence and w h a t are, essentially, summary judgment arguments. Therefore, this Court must deny s a n o f i-a v e n tis 's final objection. IT HEREBY IS ORDERED, that this Court accepts Judge McCarthy's October 16, 2 0 0 7 Report and Recommendation (Docket No. 14) in its entirety, including the authorities c ite d and the reasons given therein. F U R T H E R , that Defendant sanofi-aventis's Objections (Docket No. 15) are DENIED.

FURTHER, that the Clerk of the Court is directed to take the necessary steps to remand this case to the New York State Supreme Court, County of Erie.
S O ORDERED.

D a te d : July 10, 2009 Buffalo, New York /s/W illia m M. Skretny W IL L IA M M. SKRETNY U n ite d States District Judge

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