Ingram v. Wyeth, Inc. et al (JOINT ASSIGN)

Filing 54

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
Personal Representative
of Ada Erle Church,
deceased,
Plaintiff,
v.
WYETH, INC.; et al.,
Defendants.

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CIVIL ACTION NO.
2:15cv592-MHT
(WO)

OPINION AND ORDER
This
against

lawsuit

combines

pharmaceutical

medica-malpractice

case

a

products-liability

manufacturers
against

and

physicians

case
a
who

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
based
U.S.C.

on
§§

diversity-of-citizenship
1332,

1441.

The

jurisdiction,

defendant

argued

28
that

plaintiff fraudulently joined the non-diverse medical

defendants.

Now

pending

plaintiff’s

motion

to

before

remand

the

and

court

the

are

the

pharmaceutical

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
prove

a

cause

of

action

against

the

resident

(non-

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
against
Crump

the

nondiverse

Toyota,

Inc.,

defendant”.

154

1998) (citations omitted).

F.3d

1284,

Triggs
1287

v.

John

(11th

Cir.

“The burden of the removing

party [arguing fraudulent joinder] is a ‘heavy one,’”
Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)
(citations
such

a

omitted),

showing

by

and

“[t]he

clear

and
2

defendant
convincing

must

make

evidence.”

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
state

substantive

law

in

favor

of

the

plaintiff.”

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.
party

travels

only

on

the

Instead, the removing

third

joinder: fraudulent misjoinder.

type

of

fraudulent

See Tapscott v. MS

Dealer Service Corp., 77 F.3d 1353, 1360 (11th Cir.
1996).

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.
this

may

or

may

not

be

true,

fraudulent

While

misjoinder

exists only where the joinder of non-diverse parties is
3

not authorized by Fed. R. Civ. P. 20.
F.3d at 1360.
misjoinder”

See Tapscott, 77

Further, Tapscott clarified that “mere

under

Rule

20

is

not

sufficient

for

a

finding of fraudulent joinder; to constitute fraudulent
joinder, the misjoinder must also be “egregious.”
The

court

agrees

with

plaintiff

that

Id.

this

case

should be remanded to state court because no misjoinder
occurred.

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
the

same

transaction,

occurrence,

or

series

of

transactions or occurrences; and (B) any question of
law or fact common to all defendants will arise in the
action.”
theories

Here,
of

plaintiff

liability

asserts

stemming

‘alternative’

from

occurrence: the death of the decedent.

the

same

According to

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
4

physician

defendants

caused

the

death

by

improperly

prescribing the product in spite of the pharmaceutical
defendants’ adequate warnings.

Further, questions of

law or fact common to all defendants are likely to
arise

in

the

action,

including

whether

the

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
common
against
claims

question

between

pharmaceutical
against

pharmaceutical

products-liability

defendants

medical

and

defendants

defendant’s

product);

who
cf.

claims

malpractice
prescribed
Stone

v.

Zimmer, Inc., 2009 WL 1809990, at *3-4 (S.D. Fla. 2009)
(Hurley,

J.)

(finding

products-liability

fraudulent

claims

against

misjoinder

of

hip-implant

manufacturer with malpractice claims against physicians
who, a year after implantation of hip implant by a
5

different doctor, failed to diagnose broken implant as
cause of plaintiff’s pain).
As

joinder

of

plaintiff’s

claims

is

arguably

permissible under Rule 20, the court does not reach the
question of whether misjoinder was egregious, and finds
no

fraudulent

pharmaceutical

misjoinder.
defendants

Further,
have

not

as

the

established

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
this

cause

is

remanded

to

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.
6

The

clerk

of

the

court

is

DIRECTED

to

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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