Mary Plubell, on behalf of herself and all others similarly situated; Respondent, v. Merck & Co., Inc.; Petitioner.
No. 05-4217
United States Court of Appeals FOR THE EIGHTH CIRCUIT
January 20, 2006
Submitted: January 10, 2006. Appeal from the United States District Court for the Western District of Missouri.
Before SMITH, McMILLIAN, and BENTON, Circuit Judges.
This case involves a putative class action filed in Missouri state court against Merck & Co., Inc., manufacturer of the prescription drug Vioxx. Merck sought to remove the case to federal court under the
I.
On December 13, 2004, Carol Green Richardson, as class representative, filed a class action lawsuit against Merck in Missouri state court, alleging deceptive trade practices in the development and marketing of Vioxx. The state court had exclusive jurisdiction over the class action at the time of filing. During discovery, plaintiff‘s counsel learned that Richardson was mistaken about the manufacturer of the pain medication prescribed by her doctors. Plaintiff‘s counsel sought leave to amend the petition, substituting a new class representative, Mary Plubell, for Richardson. On August 29, 2005, the state court granted the amendment. A week later, the state court denied Merck‘s motion to dismiss the class action which alleged that Richardson could not possibly state a claim (and which was filed before the motion for leave to amend the petition). The class has not been certified yet.
Between the filing and the amendment of the petition, Congress passed the
II.
The issue is when this case “commenced.” CAFA applies only to class actions commenced on or after February 18, 2005. See
Merck asserts that because the amended pleading was not filed until six months after CAFA‘s enactment, the class action was not commenced until then. The issue becomes whether the amendment relates back or is instead a new action. An amended pleading relates back to the date of the original petition “[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading
Although neither Missouri Rule 55.33(c) nor federal Rule 15(c) mention amendments substituting plaintiffs, the advisory committee notes to the 1966 amendments of federal Rule 15(c) does:
The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c) since the problem is generally easier. Again the chief consideration of policy is that of the statute of limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by analogy to amendments changing plaintiffs.
Neither party cites any Missouri case law involving class actions and Rule 55.33(c). To determine whether an amendment adding a new plaintiff relates back to the original complaint, federal courts generally either interpret Rule 15(c)(3) or apply a judicially-created test. See Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1131–32 (11th Cir. 2004) (comparing both approaches). Both tests consider the same factors and often yield the same result. This court will apply the Rule 15(c)(3) approach because the advisory committee‘s note indicates that the rule was intended to apply in situations where a new plaintiff is added. Under the Rule 15(c)(3) approach, an amendment relates back if “the defendant knew or should have known that it would be called on to defend against claims asserted by the newly-added plaintiff,” unless “the defendant would be unfairly prejudiced in maintaining a defense against the newly-added plaintiff.” Cliff, 363 F.3d at 1132; see also SMS Fin., Ltd. Liab. Co. v. ABCO Homes, Inc., 167 F.3d 235, 244–45 (5th Cir. 1999); Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 19 (2d Cir. 1997); Nelson v. County of Allegheny, 60 F.3d 1010, 1014–15 (3d Cir. 1995); Asmus v. Capital Region Family Practice, 115 S.W.3d 427, 433–34 (Mo. App. 2003) (analyzing whether defendant was prejudiced by amendment adding new plaintiff).
In Crowder v. Gordons Transps., Inc., a federal case decided before Missouri
Merck argues that because Richardson did not actually purchase or use Vioxx, successor-representative Plubell‘s claims in the amended pleading do not arise out of the same “conduct, transaction, or occurrence.” But Rule 55.33(c) requires only that the amended claims must arise out of the same conduct, transaction or occurrence “set forth” in the original pleadings. See
The next step is to evaluate whether the defendant would be unfairly prejudiced if the amended pleading related back. As already noted, the claims alleged in both the original and the amended pleadings are exactly the same, reprinted verbatim. Merck was clearly advised by the original petition that the plaintiff class sued for deceptive trade practices in developing and marketing Vioxx. Thus, Merck was in no way prejudiced by the identical allegations in the amended pleading. See Asmus, 115 S.W.3d at 434 (“Because the claim would have remained unchanged with the addition of the bankruptcy trustee, the Defendants would not have been prejudicially affected.“). Moreover, although Mary Plubell is only a putative member of the original class, which has not yet been certified, Merck still knew or should have known that it must defend against Plubell‘s claims. Plubell is only “newly-added” in that she became the named class representative.
Merck claims that it is prejudiced because CAFA confers a right to be in federal court. However, nothing in CAFA grants such a right. According to CAFA, its purposes are to: “1) assure fair and prompt recoveries for class members with legitimate claims; 2) restore the intent of the framers of the United States Constitution by providing for Federal court consideration of interstate cases of national importance under diversity jurisdiction; and 3) benefit society by encouraging innovation and lowering consumer prices.”
Additionally, Merck asserts that Missouri Rule 55.33(c) applies only when there is a live claim between the original parties. Merck argues that because Richardson never actually purchased or used Vioxx, she did not have a legal right to sue, and the amended pleading cannot relate back. However, none of the cases Merck cites for this proposition is a class action. See Caldwell v. Lester E. Cox Med. Ctrs.-S., Inc., 943 S.W.2d 5 (Mo. App. 1997); Smith v. Tang, 926 S.W.2d 716 (Mo. App. 1996); State ex rel. Jewish Hosp. of St. Louis v. Buder, 540 S.W.2d 100 (Mo. App. 1976); see also Henderson v. Fields, 68 S.W.3d 455, 466 (Mo. App. 2001); Don Roth Dev. Co. v. Mo. Highway & Transp. Comm‘n, 668 S.W.2d 177, 179 (Mo. App. 1984). The closest authority on class actions would allow Richardson to sue Merck as class representative, even though she mistakenly believed she purchased and used Vioxx. See Donaldson v. Pillsbury Co., 554 F.2d 825, 831 n.5 (8th Cir. 1977) (“Appellant‘s failure to prevail on her own claim, while ordinarily an element to consider in the appellate review of a class action determination . . . is not conclusive. It does not defeat her capacity to represent the class.“).
Finally, Merck contends that allowing the substitution of a new class representative – without commencing a new action – allows naming placeholder representatives. First, under Rule 55.33(c), a court could determine that a placeholder representative unfairly prejudices the defendant. Second, a court could deny leave to amend if it thought the plaintiff (or counsel) had acted in bad faith. See
III.
The conduct alleged by Plubell in the amended pleading arises out of the same conduct, transaction or occurrence set forth in the original pleadings. Because the claims are exactly the same in both pleadings, and Plubell was a member of the putative class in the original petition, Merck is not unfairly prejudiced. Therefore, under the Rule 15(c)(3) test, as applied to Missouri Rule 55.33(c), the amended pleading relates back to the original petition, which was filed before the enactment of CAFA.
The judgment of the district court is affirmed.