Plummer et al v. Biomet Inc et al

Filing 29

MEMORANDUM OPINION AND ORDER- The pending motions (Docs 27 , 28 ) are DENIED as MOOT. Signed by Magistrate Judge Staci G Cornelius on 1/30/17. (MRR, )

FILED
2017 Jan-30 AM 10:24
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BOBBY G. PLUMMER, JR., et al.,
Plaintiffs,
v.
BIOMET, INC., et al.,
Defendants.

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Case No.: 2:16-cv-00379-SGC

MEMORANDUM OPINION AND ORDER1
This lawsuit was originally filed in the Circuit Court of Jefferson County by
Plaintiffs, Bobby G. Plummer, Jr., and Cary Y. Plummer. (Doc. 1-1). This matter
arises from a 2015 hip surgery performed on Mr. Plummer, and originally named
six defendants. (Id.).2 On March 2, 2016, Defendants Biomet, Inc., and Biomet
Orthopedics, LLC (the "Biomet Defendants"), removed to this court on the basis of
diversity jurisdiction. (Doc. 1). The Biomet Defendants contend the remaining
defendants, Jazz Medical, Inc., and Ray Flournoy, were fraudulently joined,
meaning: (1) their citizenship can be ignored for purposes of diversity jurisdiction:
and (2) their consent to removal was not required. (Id. at 3).
1

The parties have consented to the exercise of full dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 17).
2

Following removal, Plaintiffs subsequently filed a notice of voluntary dismissal concerning
Biomet, LLC, and Zimmer Biomet Solutions; all claims against these defendants have been
dismissed. (See Docs. 15, 16).

Presently pending is Plaintiffs' motion to remand. (Doc. 7). The Biomet
Defendants have responded (Doc. 13), and Plaintiffs have replied (Doc. 14).
Accordingly, the motion is ripe for adjudication. As explained below, Plaintiffs'
motion to remand is due to be granted.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Complaint
Mr. Plummer underwent surgery at St. Vincent's Hospital in 2006, during
which Dr. David S. Buggay replaced his left hip with a metal-on-metal hip
arthroplasty. (Doc. 1-1 at 5). On June 23, 2015, Dr. Buggay performed a revision
of the hip arthroplasty to replace the original metal-on-metal implant with a new
femoral implant.

(Id.).

The complaint alleges the replacement implant was

designed, manufactured, marketed, promoted, and sold by the Biomet Defendants.
(Id. at 4). The complaint further alleges Jazz Medical served as the sales and
marketing arm of the Biomet Defendants. (Id.). Plaintiffs contend Ray Flournoy
was an agent, servant, or employee of Jazz Medical. (Id. at 4-5). Specifically, the
complaint alleges Flournoy served as a sales representative who provided
information to doctors about the proper Biomet implants to be used in surgeries.
(Id. at 5). Plaintiffs allege this information included the selection and sizing of
implants and that Flournoy regularly was present and provided technical assistance
to doctors during surgeries. (Id.).
2

The complaint alleges Flournoy was present in the operating room during
Mr. Plummer's 2015 revision surgery. (Id.). During the surgery, Dr. Buggay
noticed the "femoral head or ball of the proposed implant appeared to be too large .
. . ." (Id. at 5-6). Dr. Buggay allegedly asked Flournoy whether the implant was
the appropriate size. (Id. at 6). After consulting via telephone with the engineering
department of the Biomet Defendants, Flournoy told Dr. Buggay the implant was
indeed the correct size. (Id.). Dr. Buggay then proceeded with the surgery and
implanted the new prosthesis. (Id.). Following the surgery, Plummer noticed his
left leg was longer than his right leg. (Id.). X-rays confirmed that the new implant
was too large, and on July 17, 2015, Dr. Buggay performed another operation to
remove the over-sized implant and replace it with the correct implant. (Id. at 6).
On these facts, Mr. Plummer asserts claims for negligence, wantonness,
breach of implied warranties, and misrepresentation. (Id. at 6-9). Plaintiffs also
assert a claim for loss of consortium. (Id. at 9).
B. Notice of Removal
In their notice of removal, the Biomet Defendants agree Plaintiffs are
citizens of Alabama; they further state that both Biomet Orthopedics, LLC, and
Biomet, Inc., are Indiana citizens for purposes of diversity jurisdiction. (Doc. 1 at
8).3

3

Additionally, the notice of removal does not contest the complaint's

Specifically, an affidavit attached to the notice of removal avers Biomet Orthopedics, LLC, is a
3

allegations that both Flournoy and Jazz Medical are Alabama citizens. (See Doc.
1-1 at 4-5; see generally Doc. 1).

However, as noted above, the Biomet

Defendants contend Flournoy and Jazz Medical are fraudulently joined because
there is no possibility Plaintiffs can establish any of the claims asserted against the
non-diverse defendants. (Doc. 1 at 10-15).4 As discussed in more detail below, the
Biomet Defendants contend Plaintiffs cannot maintain claims against Flournoy or
Jazz Medical: (1) for negligence, wantonness, or breach of implied warranties
because, as defined under Alabama law regarding product liability claims, neither
of these named defendants was a "seller" of the over-sized implant; (2) for
misrepresentation because the allegations that Flournoy merely relayed
information from Biomet engineers regarding the over-sized implant do not state a
claim for misrepresentation, much less a claim against Jazz Medical based on
vicarious liability; and (3) for loss of consortium because, due to the alleged
insufficiency of Plaintiffs' primary claims, there is no claim to which derivative
liability may attach. (Id. at 12-15).

limited liability company organized under the laws of the state of Indiana with its principal place
of business in Indiana. (Doc. 1-3 at 3). More importantly, the sole member of Biomet
Orthopedics, LLC, is Biomet U.S. Reconstruction, LLC, which the notice of removal describes
as an "Indiana limited liability company." (Id.; Doc. 1 at 9). The sole member of Biomet U.S.
Reconstruction, LLC, is Biomet, Inc. (Doc. 1-3 at 3). Biomet, Inc., in turn, is a corporation
organized under the laws of Indiana with its principal place of business in Indiana. (Id.).
4

The Biomet Defendants further contend that the complaint's allegations satisfy the amount in
controversy requirement for diversity jurisdiction. (Doc. 1 at 4-8). The court agrees.
4

II. Discussion
An action filed in state court may be removed to federal court if the federal
courts have original subject matter jurisdiction. 28 U.S.C. § 1441(a). Generally,
this means a federal court must be able to exercise diversity jurisdiction pursuant to
28 U.S.C. § 1332 or federal question jurisdiction pursuant to 28 U.S.C. § 1331.
Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011). Diversity
jurisdiction requires every plaintiff be of diverse citizenship from every defendant.
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998).
Furthermore, the amount in controversy must exceed $75,000, exclusive of interest
and costs. 28 U.S.C. § 1332(a). "[T]he party invoking the court's jurisdiction
bears the burden of proving, by a preponderance of the evidence, facts supporting
the existence of federal jurisdiction." McCormick v. Aderholt, 293 F.3d 1254,
1257 (11th Cir. 2002).
When a case is removed on the basis of diversity jurisdiction, a court must
remand the case to state court if there is not complete diversity or one of the
defendants is a citizen of the state in which the case was filed. Stillwell, 663 F.3d
at 1332 (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806); 28
U.S.C. § 1441(b)). However, if a plaintiff has fraudulently joined a non-diverse
defendant by naming that defendant solely to defeat diversity jurisdiction, a district
court must ignore the presence of the non-diverse defendant for purposes of
5

determining diversity jurisdiction. Henderson v. Washington Nat'l Ins. Co., 454
F.3d 1278, 1281 (11th Cir. 2006).
On a motion to remand, the removing party bears the burden of
demonstrating federal jurisdiction, Pacheco de Perez v. AT&T Co., 139 F.3d 1368,
1373 (11th Cir. 1998), which in a case removed on the basis of diversity
jurisdiction means establishing the parties' citizenship, see Rolling Greens MHP,
LP v. Comcast SCH Holdings, LLC, 374 F.3d 1020, 1022 (11th Cir. 2004).
"Federal courts are courts of limited jurisdiction, and there is a presumption against
the exercise of federal jurisdiction, such that all uncertainties as to removal
jurisdiction are to be resolved in favor of remand." Russell Corp. v. American
Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001).
As relevant here, a defendant seeking to prove a co-defendant was
fraudulently joined must demonstrate that "there is no possibility the plaintiff can
establish a cause of action against the resident defendant." Henderson, 454 F.3d at
1281 (quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)). A
defendant must demonstrate fraudulent joinder by clear and convincing evidence.
Id. A district court makes the determination regarding fraudulent joinder on the
basis of the plaintiff's pleadings at the time of removal, supplemented by any
affidavits and deposition transcripts submitted by the parties. Pacheco, 139 F.3d at
1380; see Legg v. Wyeth, 428 F. 3d 1317, 1322-23 (11th Cir. 2005). The task is
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not to gauge the sufficiency of the pleadings. Henderson, 454 F.3d at 1284. While
the procedure for resolving a fraudulent joinder claim is similar to that for ruling
on a motion for summary judgment, the former does not require a showing the
plaintiff could survive summary judgment. Crowe, 113 F.3d at 1541. Nor does it
require a showing the plaintiff has stated a plausible claim as required by Rule
12(b)(6) of the Federal Rules of Civil Procedure. While the plausibility standard
applicable to a motion to dismiss brought pursuant to Rule 12(b)(6) "asks for more
than a sheer possibility that a defendant has acted unlawfully . . . all that is required
to defeat a fraudulent joinder claim is a possibility of stating a valid cause of
action." Stilwell, 663 F.3d at 1333 (quotations omitted). But see Legg, 428 F.3d at
1325 n.5 (noting the potential for legal liability must be reasonable and not merely
theoretical).
In reviewing the pleadings and other evidence for a possible cause of action
against an allegedly fraudulently joined defendant, a district court must view
factual allegations in the light most favorable to the plaintiff and resolve
uncertainties about applicable law in the plaintiff's favor. Stilwell, 663 F.3d at
1333. However, "there must be some question of fact before the district court can
resolve that fact in the plaintiff's favor." Legg, 428 F.3d at 1323. When a plaintiff
does not dispute a defendant's sworn statement that would preclude the imposition
of liability, there is no question of fact for the court to resolve in the plaintiff's
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favor on a motion to remand. See id. The plaintiff must come forward with some
evidence to dispute the defendant's sworn statement and not merely rely on the
unsworn allegations contained in the complaint. See id.; Shannon v. Albertelli
Firm, P.C., 610 F. App'x 866, 871 (11th Cir. 2015).
Here, the complaint asserts Alabama common law claims against all
remaining defendants. In their notice of removal, the Biomet Defendants contend
Plaintiffs cannot establish claims for negligence, wantonness, or breach of
warranties against Flournoy and Jazz Medical because neither of these defendants
is a "seller" of the implant, as defined under Alabama law governing product
liability claims. (Doc. 1 at 12-14). In the motion to remand, Plaintiffs explain they
do not assert product liability claims. (Doc. 7 at 5; see Doc. 14 at 3). Plaintiffs
contend the complaint does not allege the implant was defective in any manner;
instead, the allegations are focused on the selection and provision of an implant
that was the wrong size. (Doc. 7 at 5). A review of the complaint confirms
Plaintiffs' contention that the claims against Jazz Medical and Flournoy are not
related to the manufacture or design of the implant.
In response to Plaintiffs' arguments, the Biomet Defendants contend that,
while styled as stand-alone claims, the complaint does not include any allegations
against Flournoy or Jazz Medical that are independent of the conduct of the Biomet
Defendants. (Doc. 13 at 6). The Biomet Defendants appear to argue that this
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necessarily means any claims against Flournoy and Jazz Medical must comply
with Alabama law regarding product liability claims, including the requirement
that defendants to these claims must be "sellers," as defined under Alabama law.
(Id. at 6-7).

The Biomet Defendants also contend the complaint does not

sufficiently allege that Flournoy or Jazz Medical owed Plaintiffs a duty of
reasonable care. (Id. at 5-6).
In reply, Plaintiffs point to the affidavit of Dr. Buggay, submitted in support
of the motion to remand. (Doc. 7-1). Dr. Buggay avers that Flournoy: (1) had
served as his Biomet sales representative for "years;" (2) was present for "almost
all" of his surgeries involving Biomet products; (3) was aware of the size of the
implant Mr. Plummer needed; and (4) provided and selected the implant to be used
in Mr. Plummer's June 23, 2015 surgery. (Id. at 2). Dr. Buggay also avers that
when he asked Flournoy to confirm the new implant was the same size as the one
being replaced, Flournoy answered affirmatively; Dr. Buggay proceeded with the
surgery based on Flournoy's statement. (Id).
To the extent the Biomet Defendants contend the complaint cannot establish
a claim for negligence against Flournoy or Jazz Medical because these defendants
are not sellers under Alabama law, this argument fails.

As Plaintiffs have

explained, the complaint does not assert a product liability claim against Jazz
Medical or Flournoy. Instead, Plaintiffs allege, as properly supplemented by Dr.
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Buggay's affidavit, see Pacheco, 139 F.3d at 1380; Legg, 428 F. 3d at 1322-23,
Flournoy: (1) was present for "almost all" of his surgeries involving Biomet
products over the preceding years; (2) was aware of the correct size of implant
Plummer needed; and (3) selected and provided the wrong-sized implant during the
June 23, 2015, surgery. When Dr. Buggay specifically inquired as to whether the
new implant was the same size as the old implant, Flournoy responded
affirmatively.
It is worth noting that the Biomet Defendants do not contend Alabama
product liability claims are the exclusive remedy against a sales representative like
Flournoy. Nor would such an argument succeed. See ALA CODE § 6-5-521(e) (the
definition of products liability action "is not to be construed to expand or limit the
status of the common or statutory law except as expressly modified by the
provisions of this division"). Moreover, the definition of "seller" notwithstanding,
the facts alleged in the complaint likely would not constitute a product liability
action, as defined under Alabama law. See ALA. CODE §§ 6-5-501(2), 521(a).5
Accordingly, the Biomet Defendants' arguments fail to the extent they contend
Flournoy and Jazz Medical were not "sellers."
The Biomet Defendants' duty-based arguments fail as well. "In determining

5

Sections 6-5-501(2) and 521(a) define a product liability action as one brought due to injury
"caused by the manufacture, construction, design, formula, preparation, assembly, installation,
testing, warnings, instructions, marketing, packaging, or labeling of a manufactured product."
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whether a duty exists in a given situation [], courts should consider a number of
factors, including public policy, social considerations, and foreseeability."
Smitherman v. McCafferty, 622 So. 2d 322, 324 (Ala. 1993).

Under the

circumstances presented here, the court has no difficulty discerning the presence of
Flournoy's duty of reasonable care toward Plummer. At the very least, Plaintiffs
have "a possibility of stating a valid cause of action" for negligence against
Flournoy and, by extension via respondeat superior, Jazz Medical. Stilwell, 663
F.3d at 1333. This conclusion is particularly true under the standard governing a
motion to remand in the context of fraudulent joinder, in which all uncertainties
concerning Alabama law are resolved in Plaintiffs' favor.
III. Conclusion
Having found that Plaintiffs have demonstrated the reasonable possibility of
stating a valid claim for negligence against Flournoy and Jazz Medical, nondiverse defendants, this court lacks subject matter jurisdiction over this matter.
Accordingly, further analysis is unnecessary. For all of the foregoing reasons,
Plummer's motion to remand (Doc. 13) will be granted by separate order. All other
pending motions (Docs. 27, 28) are DENIED as MOOT.
DONE this 30th day of January, 2017.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE
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