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UNITED STATES v. AANGAMIK 15 CALCIUM PANGAMATE

October 29, 1980

UNITED STATES OF AMERICA, PLAINTIFF,
v.
AN ARTICLE OF FOOD CONSISTING OF THE FOLLOWING: 60 CASES MORE OR LESS, EACH CONTAINING 12/50 TABLET BOTTLES . . . . . ALL LABELED IN PART: . . . (BOTTLE) "AANGAMIK 15 CALCIUM PANGAMATE, ETC.," DEFENDANT. FOODSCIENCE LABORATORIES, INC., CLAIMANT-DEFENDANT.



The opinion of the court was delivered by: Roszkowski, District Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter is before the court for a ruling following a bench trial beginning on December 12, 1979 and ending on December 19, 1979.

This is an action for a civil in rem seizure and injunction brought pursuant to the provisions of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et seq., (the "Act"). Plaintiff is seeking condemnation, pursuant to 21 U.S.C. § 334, of an article of food generally referred to as Aangamik 15 tablets.

Plaintiff commenced six in rem seizure actions, one each in the Districts of New Jersey, Oregon, Hawaii and the Southern District of Florida, and two in the Northern District of Illinois. The six actions were consolidated for trial in the Northern District of Illinois pursuant to the provisions of 21 U.S.C. § 334(b).

FoodScience Laboratories, Inc. ("FoodScience"), manufacturer of Aangamik 15, filed a claim to the Aangamik tablets under seizure in this consolidated case.

Subsequently, plaintiff was allowed to amend the complaints to include a prayer for injunctive relief against claimant. Claimant filed an amended answer asserting as an affirmative defense this court's lack of in personam jurisdiction over the person of the claimant.

At trial, FoodScience moved to dismiss the complaint against it as a defendant in an injunction action. The court reserved ruling on that motion until the close of the case.

  At this time, the court denies defendant's motion to dismiss
the complaint against it as a defendant in an injunction action.
The court finds that plaintiff's prayer for condemnation of the
article and prayer for injunctive relief grow out of the

same transaction and that the basic issues are identical. As
stated in Fresh Grown Preserve Corporation v. United States,
143 F.2d 191, 195 (6th Cir. 1944):

   . . a court having jurisdiction of the principal
  cause, possesses jurisdiction over all its incidents,
  and may by motion, attachment, or execution enforce
  its decrees against all who become parties to the
  proceedings.

See, also United States v. 184 Barrels Dried Whole Eggs, 53 F. Supp. 652 (E.D.Wis. 1943). Consequently, it is in the interest of judicial economy for the court to consider all of plaintiff's prayers for relief at the same time.

Plaintiff's complaint alleges that Aangamik 15 is a food which is adulterated within the meaning of 21 U.S.C. § 342(a)(2)(C) in that it bears or contains a food additive which is unsafe within the meaning of 21 U.S.C. § 348(a). Plaintiff further alleges that the Aangamik 15 is misbranded within the meaning of 21 U.S.C. § 343(a) and § 343(i)(2).

Finally, plaintiff alleges that claimant/defendant, FoodScience Laboratories, Inc., has been and is now engaged in the delivery or introduction for delivery into interstate commerce of the Aangamik 15 in violation of section 331(a) of the Act, 21 U.S.C. § 331(a). Plaintiff seeks injunctive relief pursuant to the provisions of 21 U.S.C. § 332.

FINDINGS OF FACT*fn1

Defendants are the articles of food seized in the consolidated cases and FoodScience Laboratories, Inc., a corporation organized and existing under the laws of the State of Vermont.

The Aangamik 15 tablets under seizure (the "Aangamik 15 tablets") contain a mixture of N,N-Dimethylglycine hydrochloride (N,N-Dimethylglycine), calcium gluconate, Avicel, Stearic Acid, and Dicalcium Phosphate.

The Aangamik 15 tablets were shipped in interstate commerce from the State of Vermont to the States of Illinois, Florida, Oregon, Hawaii and New Jersey. The tablets were shipped in interstate commerce to Illinois, Florida, Oregon, Hawaii and ...


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