Howard v. Philip Morris Usa, Inc.

98 F. App'x 535
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 29, 2004
DocketNo. 03-3394
StatusPublished
Cited by3 cases

This text of 98 F. App'x 535 (Howard v. Philip Morris Usa, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. Philip Morris Usa, Inc., 98 F. App'x 535 (7th Cir. 2004).

Opinion

ORDER

In the 1980s Scott L. Howard, then a teenager, began smoking Marlboro cigarettes. Two decades later he brought suit against cigarette-manufacturer Philip Morris USA, Inc., seeking damages for cardiovascular and pulmonary ailments he claimed were caused by smoking. The district court granted summary judgment for Philip Morris, determining that Howard’s claims were time-barred. Howard appeals.

Because this case comes to us on review of summary judgment in favor of Philip Morris, we view the facts in the light most favorable to Howard. Griffin v. Potter, 356 F.3d 824, 828 (7th Cir.2004). Howard began smoking when he was 16 years old and was a heavy smoker for nearly 14 years, at one point smoking as much as four or five packs a day. A few years after he began smoking Howard switched from “Marlboro Reds” to “Marlboro Lights” because he thought they were better for his health.

In 1995 Howard rushed to the hospital believing that he was having a heart attack. He was suffering from rapid heart beat (or tachycardia), irregular heart beat (arrhythmia), and elevated blood pressure. Doctors diagnosed him with mitral valve prolapse and a heart murmur and noted concern for other cardiovascular impairments. They advised him to quit smoking. According to Howard the doctors told him that cigarettes were “the biggest contributing factor” to his heart problems. They advised him, ‘You are going to have to quit smoking if you want to live.” Howard tried but was unable to quit.

Over the next several years Howard continued to receive treatment and medication for cardiovascular problems. In 2000 he was diagnosed with various pulmonary ailments. In 2002 another doctor determined that Howard did not suffer from mitral valve prolapse, and that his cardiac problems were due to smoking. That same year Howard was diagnosed with chronic asthma and early indications of emphysema.

In March 2003 Howard filed suit in Wisconsin state court, alleging that cigarettes manufactured by Philip Morris were responsible for his poor health. Although Howard’s pro se complaint is not a model of clarity, he appeared to assert claims sounding in negligence, strict liability, fraudulent concealment, and false advertising. The crux of his complaint was that Philip Morris had designed ads inducing him to smoke while withholding information about the dangers of smoking, particularly that Marlboro Lights were no safer than other cigarettes.

Philip Morris immediately removed the case to federal court on the basis of diversity jurisdiction. On the corporation’s mo[537]*537tion the district court dismissed all but Howard’s fraud claim, concluding that the rest were essentially failure-to-warn claims preempted by federal law. The district court subsequently granted summary judgment in favor of Philip Morris, finding that Howard’s fraud claim was untimely. Specifically the court found that the limitations period began running in 1995 when Howard was advised by his doctors that smoking was injuring his health. Howard’s suit brought in 2003 was therefore untimely under Wisconsin’s six-year statute of limitations for fraud. The court further concluded that under Wisconsin’s “single injury” rule Howard’s claim for the later-diagnosed pulmonary ailments was also barred, since the injury stemmed from the same alleged wrongful conduct. The court therefore granted summary judgment in favor of Philip Morris. Howard filed a timely notice of appeal.

Before we turn to the merits, we must satisfy ourselves that we have subject matter jurisdiction over this case. Jurisdiction in the district court was premised on diversity of citizenship. See 28 U.S.C. § 1332. In the pleadings and the briefs filed with this court, the parties asserted that diversity exists because Philip Morris is a Virginia corporation with its principal place of business in New York and Howard is a “resident” of Wisconsin. But this court has previously admonished that the relevant inquiry for purposes of diversity jurisdiction is not a party’s residency but his or her citizenship. See Meyerson v. Harrah’s East Chicago Casino, 299 F.3d 616, 617 (7th Cir.2002). Further, Howard is not necessarily a citizen of Wisconsin simply because he is incarcerated there; rather, a prisoner presumptively retains the state citizenship he had before conviction. See Bontkowski v. Smith, 305 F.3d 757, 763 (7th Cir.2002); Denlinger v. Brennan, 87 F.3d 214 (7th Cir.1996). We ordered the parties to file additional jurisdictional memoranda, which revealed that Howard is a citizen of Tennessee, since he lived there prior to his incarceration and intends to return there upon his release. The parties are therefore diverse, giving us jurisdiction over the case.

Howard first challenges an earlier order of the district court denying his request for leave to file an amended complaint. After Philip Morris had filed its motion to dismiss, Howard tendered an amended complaint, which the district court construed as a request for leave to amend his original pleading. The amended complaint was essentially the same as the original complaint except for some additional fact allegations. Philip Morris objected to Howard’s submission, and the district court ultimately denied his request as “untimely.”

Federal Rule of Civil Procedure 15(a) gives a plaintiff the automatic right to amend his complaint once before a responsive pleading is served. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.1998); Camp v. Gregory, 67 F.3d 1286, 1289 (7th Cir.1995). Howard submitted his amended complaint after Philip Morris had filed its motion to dismiss but before it filed an answer. A motion to dismiss is not a “responsive pleading” for purposes of Rule 15(a), so it did not cut off Howard’s right to amend once as a matter of course. Duda, 133 F.3d at 1057. The district court was therefore incorrect that Howard’s submission was untimely.

We have recognized, however, that a district court need not permit the filing of an amended complaint, even before a responsive pleading has been filed, if the amended complaint fails to cure deficiencies in the original complaint. See id. at 1057 n. 4; Perkins v. Silverstein, 939 F.2d 463, 472 (7th Cir.1991). In his brief How[538]*538ard explains that the amendment was intended “to ensure compliance with the particularity requirements for claims of fraud as prescribed by Fed.R.Civ.P. 9

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Cite This Page — Counsel Stack

Bluebook (online)
98 F. App'x 535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-philip-morris-usa-inc-ca7-2004.