Elaine ROBINSON; Helen Psaras; Rebecca Couture; Vanesa Ford; Georgia Lee Harlan; Claire A. Holmes; Tina Loomis; Juana Miles; Deloris Mitchell; Himilce Negron; Carol L. Qualls; Rhonda Robinson; Harriet L. Scott; Charlotte L. Shaw; Susan M. Simcox; Linda C. Tanguay; Violet E. Wyers; Kim Diling; Rebekah McDonald; Socorro Perez; Cynthia Weddle; Mary Higdon; Yolanda Baker; Priscilla Billingslea; Yiona Bryant; Diane Ezell; Janet Gallo; Ladessa Lewis; Quynh Nguyen; Isabel Power; Denise Proulx; Sharon Wheelehan; Patricia Herrera; Carol Henriques; Linda Christner; Rita Probst; Patricia Johnson; Lois Morton; Sharon Bowers; Henrietta Eatman; Sharon Murdock; Mildred Watley; Delayne Wharton; Patricia Trotman; Gladys Bates; Helen Courtney; Myrtle White-Royes; Carol Peterson; Elena Barnovics; Victoria Elleman; Eleftheria Karamihalis; Linda L. Jackson; Gladys F. Brent; Mary Robinson; Martha Farr; Eliza Taylor; Rose Rush-Gaswirth; Ardell R. Martinez; Carol A. Moran; Lou Anne Box; Barbara L. Kuikahi; Elizabeth A. Parks-McDonald; Willie Williams; Clara Yarborough, Plaintiffs-Aрpellees v. PFIZER, INC., Defendant-Appellant
No. 16-2524
United States Court of Appeals, Eighth Circuit.
Submitted: April 5, 2017. Filed: May 1, 2017.
855 F.3d 893
Washington Legal Foundation; American Tort Reform Association; Missouri Organization of Defense Lawyers; Chamber of Commerce of the United States of America; Pharmaceutical Research and Manufacturers of America, Amici on Behalf of Appellant(s). National Consumer Law Center; National Association of Consumer Advocates; Public Justice; American Association for Justice, Amici on Behalf of Appellee(s).
The district court addressed only the fact of juvenile court supervision in determining that defendants were entitled to qualified immunity, and its opinion does not contain sufficient detail to allow us to review whether defendants are entitled to qualified immunity. See O‘Neil v. City of Iowa City, 496 F.3d 915, 918 (8th Cir. 2007). Although defendants claim that summary judgment is appropriate for other reasons, we remand for the district court to address these issues in the first instance. See Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 742 F.3d 845, 851 (8th Cir. 2014); Warmus v. Melahn, 110 F.3d 566, 569 (8th Cir. 1997).
III.
For these reasons we reverse and remand for more thorough review of defendants’ motion for summary judgment.
Counsel who presented argument on behalf of the appellant was Mark Cheffo, of New York, NY. The following attorney(s) appeared on the appellant brief; Mаrk C. Hegarty, of Kansas City, MO., Booker T. Shaw, of St. Louis, MO., Lincoln Davis
Counsel who presented argument on behalf of the appellee was Andrea Bierstein, of New York, NY. The following attorney(s) appeared on the appellee brief; Trent B. Miracle, of Alton, IL., Eric Johnson, of Alton, IL.
Before SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.
ARNOLD, Circuit Judge.
Elaine Robinson is one of 64 women from 29 states who sued Pfizer in a Missouri state court, asserting state-law claims that arose from Pfizer‘s manufacture and sale of the drug Lipitor, which they allege causes diabetes. Pfizer removed the case to federal district сourt,1 maintaining that the case lay within its diversity jurisdiction even though the face of the complaint revealed that six of the plaintiffs are citizens of New York where Pfizer is also a citizen. Complete diversity of citizenship, and thus federal subject-matter jurisdiction, therefore appeared to be lacking. See Hubbard v. Federated Mut. Ins. Co., 799 F.3d 1224, 1227 (8th Cir. 2015). But Pfizer defended the removal by urging the district court to ignore the plaintiffs who are not Missouri citizens when ruling on the diversity issue because those plaintiffs had been fraudulently joined or procedurally misjoined in the case. In support, Pfizer contended that those plaintiffs could not acquire personal jurisdiction over Pfizer in Missouri state court for incidents that did not arise out of or relate to Pfizer‘s contacts in Missouri, and so complete diversity of citizenship did exist after all.
We do not ordinarily have occasion to rule on the propriety of district court remand orders because they are not reviewable on appeal or otherwise. See
After Pfizer filed its notice of appeal, the plaintiffs filed a satisfaction of judgment in the district court asserting that they “disclaimed any interest in colleсting” the attorney‘s fee award and that “full and complete satisfaction of said judgment or order is hereby acknowledged.” They then filed a motion to dismiss the appeal as moot, which Pfizer opposed.
Pfizer contends that we should deny the motion to dismiss because the plaintiffs filed it too late. Our rules provide that, “Except for good cause or on the motion of the court, a motion to dismiss based on jurisdiction must be filed within 14 days after the court has docketed the appeal.” 8th Cir. R. 47A(b). Although the plaintiffs did not move to dismiss the appeal until 20 days after it was docketed, the case did not present a moоtness issue until they filed the satisfaction of judgment, and they filed their motion to dismiss only six days after that. We think that in these circumstances the plaintiffs had good cause for filing the motion to dismiss more than 14 days after docketing. More important, regardless of our Rule 47A(b), we cannot decide a moot case. So we turn tо the merits of the motion.
Under Article III, an actual controversy must exist at all stages of review,
For thе reasons that follow, we feel constrained to agree with the plaintiffs that the filing of the satisfaction of judgment has mooted the appeal. We cannot relieve Pfizer of an obligation to pay the fee award because that obligation has already been extinguished, and we cannоt order the plaintiffs to refund the fee award because Pfizer has not paid it. It follows that all the court can do at this point is give Pfizer an advisory opinion on the propriety of its removal, and it goes without saying that advisory opinions are not within our Article III power. See Greenman v. Jessen, 787 F.3d 882, 891 (8th Cir. 2015).
Relying on Perkins v. General Motors Corp., 965 F.2d 597 (8th Cir. 1992), Pfizer insists that the plaintiffs’ disclaimer of the award does not moot the case because the mere existence of the order appealed from harmed Pfizer‘s reputation. In Perkins, a party and her attorney appealed a district court order refusing to vacate a sanctions order and also sought a writ of mandаmus ordering the district court to lift the sanctions. The appellants argued that the district court lost jurisdiction to enforce the order when the parties settled the case, but we rejected that contention even though, as part of the parties’ settlement, the appellee had agreed not to collect the monetary sanctions. We explained that, though the appellee moved for sanctions, “it was the district court that imposed them. Appellants are entitled to bargain with adversaries to drop a motion for sanctions, but they cannot unilaterally bargain away the court‘s discretion in imposing sanctions and the public‘s interest in ensuring compliance with the rules of procedure.” Id. at 599-600.
We conclude that Perkins is beside the point because we do not believe that the district court‘s award of attorney‘s fees in this circumstance can reasonably be called a sanction or could have discеrnibly harmed Pfizer‘s reputation. Although the plaintiffs’ rather vivid motion for fees contained a lot of accusatory language directed at Pfizer and maintained that Pfizer had engaged in sanctionable conduct, we think it is important that the district court did not take the bait: The court‘s order merely held, applying Martin, thаt Pfizer‘s removal was not objectively reasonable in light of repeated admonitions in similar cases involving similar issues. This is not much of a rebuke, barely more than a statement that Pfizer had simply erred as a matter of law.
Pfizer maintains that every attorney‘s fee award under
Pfizer also directs our attention to a case in which we decided that a bankruptcy court had sanctioned a party when it said in an order that the party had violated an automatic statutory stay. See U.S. Through Farmers Home Admin. v. Nelson, 969 F.2d 626, 629 (8th Cir. 1992). We explained that “an adjudication that the [party] was in violation of federal law is indeed a sanction, and one that the [party] should be permitted to seek to reverse on appeal,” even where no monetary penalties were at issue. Id. But unlike Nelson, the district court here did not find that there was a violation of federal law; it merely found that the removal was not objectively reasonable. Nelson is therefore inapposite. Pfizer in addition points to occasions on which our court has referred to attorney‘s fee awards under
Pfizer also insists that it has suffered an injury because the order at issue discourages it from removing cases in the future since a district court might now be more inclined to award attorney‘s fees for an unreasonable removal. Pfizer‘s argument fails becausе we do not think that the chilling effect Pfizer posits will materialize since Pfizer would get another chance of getting an opinion on the propriety of similar removals should a district court award attorney‘s fees again. And in a case where attorney‘s fees are actually at issue on appеal, Pfizer could receive a ruling on the propriety of removal that it now so earnestly seeks. The incentives are currently structured so that plaintiffs’ attorneys in these types of cases will no longer ask for attorney‘s fees for fear that a pharmaceutical company like Pfizer will appeal a fee award and receive a decision that might end their lucrative procedural strategy. And Pfizer will have little difficulty with being ordered to pay relatively modest attorney‘s fee awards if that gives it the opportunity to defeat the plaintiffs’ strategy for good. We therefore reject Pfizer‘s contention that it will be discouraged from removing cases in the future; it is actually more likely to remove a case in the future based on these incentives. In sum, this case is moot because we cannot provide Pfizer any relief outside of an advisory opinion.
Once a case pending appeal becomes moot, federal appellate courts may dispose of the case as justice may require. See U.S. Bancorp Mortg. Co. v. Bonner Mall P‘ship, 513 U.S. 18, 21-22, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). The established practice of federal appeals courts is to vacate the judgment or order being appealed because that “clears the path for future relitigation of the issues between the parties and eliminates a judgment.” Id. at 22, 115 S.Ct. 386. Though courts are sometimes reluctant to vacate a judgment or order being appealed when one or more of the parties caused the case to become moot, see id. at 23, 115 S.Ct. 386, those cоncerns are not present when the prevailing party below unilaterally moots the case. Otherwise the prevailing party could solidify a decision as precedent or create a preclusive effect without that decision be
Dismissed.
ARNOLD
CIRCUIT JUDGE