Gaines v. Astrazeneca Pharm.

ORDER TO AMEND

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is incarcerated in the custody of the Texas Department of Criminal Justice in Lamesa, Texas, is proceeding pro se and in forma pauperis. Plaintiff sues attorney Howard Nations, the law firm Ferrer, Poirot & Wansbrough, and Astrazeneca Pharmaceuticals, LP. By order dated July 26, 2021, the Court directed Plaintiff to submit a declaration showing cause why the Court has subject matter jurisdiction of this action.

Plaintiff filed a declaration on September 28, 2021, and the Court has reviewed it. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 30 days of the date of this order.

STANDARD OF REVIEW

The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner's in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon,

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480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).

BACKGROUND

Plaintiff Ernest Gaines alleges the following in his complaint. Attorney Howard Nations filed a class action suit in the New York Supreme Court, New York County, Fishman et al. v. Astrazeneca Pharmaceuticals, LP, et al., Index No. 09109049 (N.Y. Sup. Ct.), on behalf of Plaintiff and others, alleging that they were inadequately warned about potential harm from the drug Seroquel. (ECF 2-1 at 38). One or more attorneys from the law firm of Ferrer, Poirot & Wansbrough also appeared on behalf of the plaintiff class. As of the date the class action settled in 2012, Plaintiff suffered from “hyperglycemia” but had not been diagnosed with diabetes. (ECF 2 at 4.) Counsel notified class members that recovery for the suit was less than expected because of difficulties proving that Seroquel had caused the class members' injuries. Plaintiff's share of the settlement was $11, 214.95, and after deduction of attorney's fees and costs, he received a settlement payment of $6, 336.71.

At some point, Plaintiff came across a 2011 news article that stated that the “average payout” in class action litigation about Seroquel was approximately $25, 000. (Id. at 40). Plaintiff writes that attorney “Howard Nations really shortage me by $14, 000.” (Id. at 15.)

After Plaintiff received payout of the settlement, in 2014, he was diagnosed with diabetes. (Id.) Plaintiff contends that Seroquel damaged his pancreas, causing his diabetes. (Id.) Plaintiff argues that even “$500, 000 is really not enough” to settle his claims, because he has “to live with this condition for the rest of [his] life.” (Id.) He contends that “Mr. Nations misinformed/malpractice me of the damage this medication really capable of causing.” (Id.)

After settlement, Plaintiff sent letters and other documents to class counsel and the state court. The documents that he sent to the state court were captioned for the “United States

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Supreme Court for the State of New York” or “United States District Court for the State of New York” (ECF 2-1 at 1); the state court, apparently understanding that Plaintiff intended to file in federal court because his papers were captioned for a court of the “United States, ” directed Plaintiff to send his papers to this court. (Id. at 23, 29, 46.)

By order dated July 26, 2021, the Court notified Plaintiff of the legal standards for establishing federal question and diversity jurisdiction. The Court also explained that Plaintiff could drop any defendant who destroyed diversity jurisdiction, so long as the defendant was not indispensable. The Court granted Plaintiff an opportunity to submit a declaration showing that the Court had subject matter jurisdiction of this action. The Court also raised the likelihood that Plaintiff could not relitigate the same claims that he had already settled.

DISCUSSION

A. Diversity of Citizenship

As set forth in the Court's July 26, 2021 order, the subject matter jurisdiction of federal courts is limited. (ECF 8.) Jurisdiction is available in federal court only when a “federal question” is presented, 28 U.S.C. § 1331, or when plaintiff and defendant are citizens of different states and the amount in controversy exceeds $75, 000, 28 U.S.C. § 1332. “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

In his September 28, 2021 declaration, Plaintiff invokes the Court's diversity jurisdiction, and the Court therefore considers whether Plaintiff and the defendants are citizens of different states. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998). For diversity purposes, an individual is a citizen of the State where he is domiciled. Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (internal quotation marks and citation omitted) (defining domicile as the place where a person “has his true fixed home . . . and to which, whenever he is absent, he

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has the intention of returning.”). A corporation is a citizen “of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business, ” § 1332(c)(1), ^[1] and a limited partnership or other unincorporated entity possesses the citizenship of each of its members, Americold Realty Trust v. Conagra Foods, Inc., 577 U.S. 378, 383 (2016). See also Carden v. Arkoma Assocs., 494 U.S. 185, 195 (1990) (adhering to the “oft-repeated rule” that courts must “count every member of an unincorporated association for purposes of diversity jurisdiction”); Handelsman v. Bedford Vill. Associates Ltd. P'ship, 213 F.3d 48, 52 (2d Cir. 2000) (holding that a limited partnership has the citizenship of each of its general and limited partners).

In his declaration, Plaintiff avers that he resides in and is a citizen of Texas. He refers to Defendant Astrazeneca Pharmaceuticals for the first time as “LP, ” that is, as a limited partnership, which is an unincorporated entity. Plaintiff also states, incongruously, that Astrazeneca Pharmaceuticals LP is “incorporated in” New York, and has its principal place of business in New York. But see, e.g., Astrazeneca Pharm. LP v. Intellipharmaceuticals Corp., 1:12-CV-02855-RJS (S.D.N.Y.) (ECF 1) (complaint by Astrazeneca Pharmaceuticals LP alleging that it is a limited partnership organized under the laws of Delaware, and having its principal place of business in Delaware). Although Plaintiff's allegations are muddled - because he alleges both that Astrazeneca Pharmaceuticals LP is an unincorporated entity and that it is incorporated in New York - it appears that Plaintiff and Defendant Astrazeneca Pharmaceuticals LP, may be diverse.

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Diversity of citizenship must be complete, however, and the presence of a nondiverse defendant defeats diversity jurisdiction. Plaintiff's complaint, in which he indicates that Defendant Howard Nations has a law office in Texas, suggests that both he and Defendant Nations may be citizens of the same state and therefore not diverse. Plaintiff did not mention Defendant Howard Nations or Defendant Ferrer, Poirot & Wansbrough in his declaration, either to include facts about their citizenship or to indicate that he intends to drop them from his complaint because they are dispensable, nondiverse defendants.

Because the Court may have diversity jurisdiction of Plaintiff's claims against at least one defendant, the Court grants Plaintiff leave to file an amended complaint. In the amended complaint, Plaintiff must plead facts showing complete diversity of citizenship between himself and any named defendants. Thus, if any defendant is, like Plaintiff, a citizen of Texas, Plaintiff must not include that defendant in his amended complaint because the presence of a defendant who is a citizen of the same state will destroy diversity jurisdiction. See Schacht, 524 U.S. at 388.

Although the Court grants Plaintiff leave to amend his complaint to show that the Court has diversity jurisdiction of this action, the Court notes that Plaintiff's prior suit against Astrazeneca Pharmaceuticals LP, may preclude him from relitigating the same claims.

B. The Preclusive Effect of Prior State Court Litigation

Under the doctrine of claim preclusion, also known as res judicata, “[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action to support [a subsequent civil] action.” Proctor v. LeClaire, 715 F.3d 402, 411 (2d Cir. 2013) (citation and internal quotation marks omitted, first alteration in original); see also Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000)

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(explaining that claim preclusion limits repetitious suits, establishes certainty in legal relations, and preserves judicial economy).

Where a plaintiff's earlier suit was in state court, “a federal court must give the judgment the same effect that it would have in the courts of the State in which it was rendered.” Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 369 (1996). The Full Faith and Credit Act mandates that the “judicial proceedings” of any State “shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the...