Gaines v. AstraZeneca Pharmaceutical

• Court: District Court, S.D. New York
• Decided: September 7, 2023
• Docket: 1:21-cv-05323
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ERNEST EDWARD GAINES, Plaintiff, 21-CV-5323 (LTS) -against- ORDER ASTRAZENECA PHARMACEUTICAL, et al., Defendants. LAURA TAYLOR SWAIN, United States District Judge: Plaintiff filed this action pro se. By order dated September 26, 2022, the Court dismissed the amended complaint for lack of subject matter jurisdiction. Now before the Court are two motions in this closed action: a motion under Rule 60(b) of the Federal Rules of Civil Procedure (ECF 49), and a motion for a stay and other relief (ECF 50). BACKGROUND Plaintiff is incarcerated in Texas, and he indicates that he currently suffers from diabetes. In his initial complaint, Plaintiff asserted (1) claims against Astrazeneca Pharmaceutical, LP (Astrazeneca), which sells the medication Seroquel, and (2) claims against Texas law firms for their handling of a 2009 New York state-court class action suit against Astrazeneca, in which Plaintiff was a class member. See Fishman et al. v. Astrazeneca Pharmaceuticals, LP, et al., Index No. 09109049 (N.Y. Sup. Ct.). Plaintiff alleged that from December 21, 2005, to June 12, 2006, while at the Dallas County Jail in Texas, he was prescribed Seroquel for his schizophrenia and bi-polar disorder. (ECF 2 at 22.) At the time of the class action settlement in 2012, Plaintiff had not been diagnosed with diabetes, and his net award— after paying $4,485.98 in attorney’s fees and $392.26 in costs— was $6,336.71. (Id. at 35.) In May 2014, while still incarcerated in Texas and approximately eight years after his 6- month course of treatment with Seroquel, Plaintiff was diagnosed with diabetes. Plaintiff now asserts in the amended complaint that the settlement that he received from Astrazeneca is not enough.1 Plaintiff states that he read in a Bloomberg News article, which was published in

February 2011, that the average payout for settlement of claims that Seroquel caused diabetes was $25,000. Plaintiff asserted that the attorneys “shortage[d] [him] on the settlement by $14,000.” (Id. at 15.) In his original complaint, Plaintiff neither asserted a federal claim nor pleaded facts establishing diversity jurisdiction, under 28 U.S.C. § 1332. The Court granted Plaintiff several opportunities to allege facts showing that the Court has subject matter jurisdiction of this action; notified him that he could drop any nondiverse defendants in order to establish diversity jurisdiction; and granted him repeated extensions of time to do so. (ECF Nos. 8, 11, 13, 18, 20.) The Court dismissed the action when Plaintiff failed to file an amended complaint within the extended deadline (ECF 21, 22), but then vacated the order of dismissal (ECF 31) after Plaintiff eventually filed an amended complaint (ECF 23).2 Once the action was reopened, the Court

reviewed the amended complaint and, by order dated September 26, 2022, dismissed it for lack of subject matter jurisdiction, on the ground that Plaintiff had failed to plead facts establishing either federal question or diversity jurisdiction.

1 The Court has previously suggested that Plaintiff contact the settlement administrator for the state court action. Plaintiff had attempted to file documents in the state court action, but because he labeled the documents for the “United States Supreme Court,” the state court misunderstood that the papers were intended for the federal court. 2 After the Court vacated the order of dismissal, the Court of Appeals dismissed Plaintiff’s appeal from an earlier order of this Court. (ECF 47.) Plaintiff states that on October 17, 2022, after this action was closed, he mailed to the Court a “motion for panel rehearing / rehearing en banc,” which he intended as a challenge to the order of dismissal.3 That application does not appear on the Court’s docket. On November 21, 2022, the Court received a letter from Plaintiff noting that he had not received a certified mail

receipt for his October 17, 2022 motion. Plaintiff now brings a motion, under Rule 60(b), which challenges the September 26, 2022 order of dismissal, and he incorporates his “motion for panel rehearing / rehearing en banc.” (ECF 49.) Plaintiff also brings a motion (ECF 50), which is styled as (1) a request for leave to file a motion to stay, though this action is closed, and it is therefore unclear what actions Plaintiff seeks to stay; and (2) a request for an extension of time under Rule 30 of the Rules of the Supreme Court of the United States, in connection with an application to the Supreme Court of the State of New York.4 DISCUSSION Under Rule 60(b), a party may seek relief from a district court’s order or judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct of an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or

3 Plaintiff also attaches the cover letter that he sent with the “motion for panel rehearing / rehearing en banc.” Because Plaintiff references the Federal Rules of Appellate Procedure, and he had another “motion for panel rehearing / rehearing en banc” pending in the Court of Appeals for the Second Circuit, there may have been some confusion about whether his application was intended for the district or circuit court. 4 The United States Supreme Court is the highest federal court. The Supreme Court of the State of New York is the trial court (or lower level court) for the State of New York. applying it prospectively is no longer equitable; or (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). A motion based on reasons (1), (2), or (3) must be filed “no more than one year after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). The Court understands Plaintiff’s motion to seek leave to reopen this action and file an amended complaint that drops the two law firms named as defendants: Ferrer, Poirot & Wansbrough, and “Howard L. Nations, The Nations Law Firm.”5 This would leave AstraZeneca as the sole defendant and, although Plaintiff’s motion does not provide facts showing diversity jurisdiction, diversity of citizenship may exist between Plaintiff and AstraZeneca. The Court

concludes that Plaintiff shows excusable neglect, under Rule 60(b)(1), and therefore grants Plaintiff’s motion for reconsideration of the order of dismissal, reopens this action, and directs Plaintiff to file a second amended complaint that drops the non-diverse defendants and names Astrazeneca as the sole defendant. In his second amended complaint, Plaintiff may wish to address: (1) the timeliness of his claims against Astrazeneca (given that he apparently took Seroquel in 2005-2006, discovered his diabetes in 2014, and commenced this action (with adjustment for the “prison mailbox rule”) on April 2, 2020), and whether there is any basis for tolling of the limitations period;6 (2) whether

5 It was unclear if Plaintiff had intended to sue the individual attorney, Howard Nations, or his law firm. 6 In New York, the statute of limitations for a personal injury action is three years from “the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.” N.Y. C.P.L.R. 214-c. There is no statute of repose. Although the Court makes no ruling on choice-of-law or the precise contours of Texas law, it appears that the statute of limitations for a personal injury action in Texas is two years, Tex. Civ. Prac. & Rem. Code § 16.003, and that a statute of repose bars claims made 15 years after the date of defendant’s sale of a product, Tex. Code Ann. § 16.012. Plaintiff is precluded from seeking further recovery from Astrazeneca, in light of his 2012 settlement in Astrazeneca Pharmaceuticals, LP, et al., Index No. 09109049 (Sup. Ct.); and (3) whether venue of Plaintiff’s claims against Astrazeneca, based on its alleged failure to include appropriate warnings on the drug Seroquel, which was prescribed and administered to Plaintiff in correctional facilities in Texas, lies in this district.7

Plaintiff’s motion for a stay (ECF 50), which does not appear to make any cognizable arguments or seek recognizable relief, is denied. Plaintiff may consult the legal clinic in this District that assists people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group (NYLAG); it is not part of, or run by, the court (and, among other things, therefore cannot accept filings on behalf of the court, which must still be made by any pro se party through the Pro Se Intake Unit). To receive limited-scope assistance from the Clinic, Plaintiff may mail a signed retainer and intake form to the NYLAG Pro Se Clinic at 40 Foley Square, LL22, NY, NY 10007. Once

the paperwork is received, the Clinic will coordinate contact with the litigant, which may take up to two weeks. Copies of the Clinic’s flyer, retainer, and intake form are attached to this order. CONCLUSION Plaintiff’s motion for a stay (ECF 50) is denied. Plaintiff’s motion for reconsideration, under Rule 60(b) of the Federal Rules of Civil Procedure (ECF 49) is granted, and the Court directs the Clerk of Court to reopen this matter. No summons shall issue at this time. The Court

7 See Gerena v. Korb, 617 F.3d 197, 204 (2d Cir. 2010) (“[I]f a district court receives a case pursuant to a transfer under 28 U.S.C. § 1406(a), for improper venue, it logically applies the law of the state in which it sits, since the original venue, with its governing laws, was never a proper option”). If a case is transferred for convenience under 28 U.S.C. § 1404, the choice-of- law rules of the transferor state apply to evaluate which state’s laws apply. Id. directs Plaintiff to file a second amended complaint, as set forth in this order, within 60 days of the date of this order. Plaintiff’s second amended complaint must be submitted to the Pro Se Intake Unit and labeled with docket number 21-CV-5323 (LTS). A second amended complaint form, and forms referring Plaintiff to the NYLAG clinic are attached to this order.

If Plaintiff does not file a second amended complaint within the time allowed, the Court will dismiss the amended complaint for lack of subject matter jurisdiction. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: September 7, 2023 New York, New York

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CVE Write the full name of each plaintiff. (Include case number if one has been assigned)

“against- COMPLAINT (Prisoner) Do you want a jury trial? ssssssss...0.0.0. L1Yes LINo

Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16

I. LEGAL BASIS FOR CLAIM State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or ina “Bivens” action (against federal defendants). L] Violation of my federal constitutional rights L] Other: II. PLAINTIFF INFORMATION Each plaintiff must provide the following information. Attach additional pages if necessary.

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