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July 11, 1985


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



Defendant Jewel is engaged in the processing, manufacture, and distribution of food products for resale, including the sale of milk under the brand names Hillfarm and Bluebrook. In 1985, a substantial amount of Hillfarm and Bluebrook 2% Low-Fat Milk was discovered to be contaminated by salmonella bacteria. Plaintiff and other class members are individuals who drank the contaminated milk or are members of the household of those who contracted salmonellosis from drinking the contaminated milk.

The present complaint was filed on May 3, 1985. By that time, approximately 143 individual lawsuits had been filed in the Circuit Court of Cook County, Illinois, and other state courts in both Indiana and Illinois, including a number of putative class actions. All of the Cook County cases have been "consolidated" for pre-trial and discovery purposes before Judge William Quinlan in In re Salmonella Litigation, Master File No. 85 L 000000, with all discovery and other pretrial matters to be handled by a Committee of plaintiffs' attorneys. A motion for class certification is also pending before Judge Quinlan. While the present motions were being briefed, the Illinois Supreme Court further consolidated all state cases for discovery purposes, thus in effect "multi-districting" the Illinois cases.

Subject Matter Jurisdiction

Defendants have challenged plaintiff's allegations of diversity on the grounds that the complaint states that Schomber is a resident of Indiana, but nowhere states her domicile or citizenship. Plaintiff argues that this mistake is technical only, but has offered no amendment to cure the problem. The court concludes that it has jurisdiction, but nonetheless finds that plaintiff should file an amended complaint. Failure to file an amended complaint by July 30, 1985 will be deemed as an admission that Schomber is domiciled elsewhere than in Indiana, and the complaint will be dismissed for lack of subject-matter jurisdiction.

Motion to Intervene

Intervenors Erica Barajas et al. are Illinois and Indiana residents who also suffered personal injuries from the drinking of contaminated milk processed or sold by defendant Jewel. These parties seek leave to intervene as co-plaintiffs under Rule 24(b) to assert claims for breach of implied warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(1)(B) and (3)(C), and pendent state law claims which are otherwise identical to the class claims of plaintiff Schomber. The intervenors are represented by Schomber's counsel, and are not parties (except putatively) to any of the state court actions against defendant.

Unlike an intervention as of right under 24(a), permissive intervention is not within a federal court's ancillary jurisdiction and must generally be supported by an independent jurisdictional basis. See 3 J. Moore, Moore's Federal Practice ¶ 24.18[3]. Because many of the intervenors are Illinois residents, their complaint lacks diversity, and the intervenors therefore rely on the existence of a Magnuson-Moss claim to support federal jurisdiction. Defendants argue that the intervenors' Magnuson-Moss claims are insufficient as a matter of law, and therefore that the motion to intervene should be denied for lack of an independent jurisdictional basis. The court agrees.

The literal language of § 2310(d) would indeed appear at first blush to create a cause of action for any party injured by a breach of implied or express warranty. However, the three reported decisions reaching the issue have all held that the Magnuson-Moss Act does not have so broad a reach. In Gorman v. Saf-T-Mate, Inc., 513 F. Supp. 1028 (N.D.Ind. 1981), then District Court Judge Jesse Eschbach examined the legislative history and statutory language of the Act to conclude that § 2310(d) is limited to claims for direct damages, as opposed to claims for consequential damages such as personal injuries. Gorman was then followed in Bush v. American Motors Sales Corp., 575 F. Supp. 1581, 1582 (D.Colo. 1984) and Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1064-68 (5th Cir. 1984).

Because plaintiff does not make any serious argument to discredit the extensive analyses in Gorman and Boelens, but instead attempts to distinguish them, the court will only briefly summarize the bases for those decisions. Both opinions stressed the proposition that federal legislation should not be construed to effect a major expansion of federal jurisdiction absent a clear legislative intent. Gorman, 513 F. Supp. at 1030, Boelens, 748 F.2d at 1067. In Gorman, Judge Eschbach found that the central purpose of the Magnuson-Moss Act — "to create a new and more effective procedural mechanism for consumer claims involving comparatively small amounts of damages" — was not implicated by the typical personal injury suit. 513 F. Supp. at 1033. The Boelens panel, ...

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