Ingram v. Wyeth, Inc. et al (JOINT ASSIGN)
OPINION AND ORDER : it is the ORDER, JUDGMENT, and DECREE of the court that motion to sever (doc. nos. 15 ) is denied; that the motion to remand (doc. no. 17 ) is granted and; that, pursuant to 28 U.S.C. § 1447(c), and this cause is remanded t o the Circuit Court of Montgomery County, Alabama. It is further ORDERED that any and all other pending motions are left for disposition by the state court after remand. The clerk of the court is DIRECTED to take appropriate steps to effect the remand. This case is closed in this court. Signed by Honorable Judge Myron H. Thompson on 11/2/2015. (kh, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
MARY ANN INGRAM, as
Executrix of the Estate
of Ada Erle Church and
of Ada Erle Church,
WYETH, INC.; et al.,
CIVIL ACTION NO.
OPINION AND ORDER
prescribed the pharmaceutical to a patient who died
after receiving it.
The case was removed from state to
federal court by one of the pharmaceutical defendants
plaintiff fraudulently joined the non-diverse medical
defendants’ motion to sever.
In a removal premised on fraudulent joinder, the
removing party has the burden of proving that either:
(1) “there is no possibility that the plaintiff can
diverse) defendant”; (2) “there is outright fraud in
the plaintiff's pleading of jurisdictional facts”; or
(3) “a diverse defendant is joined with a nondiverse
defendant as to whom there is no joint, several or
alternative liability and where the claim against the
diverse defendant has no real connection to the claim
1998) (citations omitted).
“The burden of the removing
party [arguing fraudulent joinder] is a ‘heavy one,’”
Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)
Henderson v. Washington Nat. Ins. Co., 454 F.3d 1278,
1281 (11th Cir. 2006).
“To determine whether the case
should be remanded, the district court must evaluate
the factual allegations in the light most favorable to
the plaintiff and must resolve any uncertainties about
Crowe, 113 F.3d at 1538.
Here, the removing party does not argue that the
first two types of fraudulent joinder apply, and the
court finds that they do not.
Instead, the removing
joinder: fraudulent misjoinder.
See Tapscott v. MS
Dealer Service Corp., 77 F.3d 1353, 1360 (11th Cir.
The pharmaceutical defendants argue that the
history of this lawsuit and a prior one plaintiff filed
against them but dismissed shows that plaintiff joined
the non-diverse physician defendants to this later case
in an effort to defeat diversity jurisdiction.
exists only where the joinder of non-diverse parties is
not authorized by Fed. R. Civ. P. 20.
F.3d at 1360.
See Tapscott, 77
Further, Tapscott clarified that “mere
finding of fraudulent joinder; to constitute fraudulent
joinder, the misjoinder must also be “egregious.”
should be remanded to state court because no misjoinder
Rule 20(a)(2) provides that persons “may be
joined in one action as defendants if: (A) any right to
relief is asserted against them jointly, severally, or
in the alternative with respect to or arising out of
transactions or occurrences; and (B) any question of
law or fact common to all defendants will arise in the
occurrence: the death of the decedent.
plaintiff’s theory, either the diverse pharmaceutical
defendants’ failure to warn physicians of the dangers
of their product caused the death or the non-diverse
prescribing the product in spite of the pharmaceutical
defendants’ adequate warnings.
Further, questions of
law or fact common to all defendants are likely to
pharmaceutical defendants adequately warned physicians
of the alleged dangers of their products, and the cause
of the decedent’s death.
Compare Ash v. Providence
Hospital, 2009 U.S. Dist. LEXIS 12794 *29-42 (S.D. Ala.
2009) (Steele, J.) (in rejecting fraudulent-misjoinder
argument, citing the cause of plaintiff’s injury as a
Zimmer, Inc., 2009 WL 1809990, at *3-4 (S.D. Fla. 2009)
manufacturer with malpractice claims against physicians
who, a year after implantation of hip implant by a
different doctor, failed to diagnose broken implant as
cause of plaintiff’s pain).
permissible under Rule 20, the court does not reach the
question of whether misjoinder was egregious, and finds
fraudulent misjoinder, the court declines to exercise
its discretion under Fed. R. Civ. P. 21 to grant their
motion to sever.
Accordingly, it is the ORDER, JUDGMENT, and DECREE
of the court that motion to sever (doc. nos. 15) is
denied; that the motion to remand (doc. no. 17) is
granted and; that, pursuant to 28 U.S.C. § 1447(c), and
Montgomery County, Alabama.
pending motions are left for disposition by the state
court after remand.
appropriate steps to effect the remand.
This case is closed in this court.
DONE, this the 2nd day of November, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE
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