McKenzie et al v. Janssen Biotech et al

Filing 40

ORDER granting 34 Motion to Remand to Circuit Court of Monroe County. Signed by District Judge William H. Steele on 6/21/2017. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TIM McKENZIE, et al.,
Plaintiffs,
v.
JANSSEN BIOTECH, INC., et al.,
Defendants.

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CIVIL ACTION 17-0111-WS-B

ORDER
This matter comes before the Court on Plaintiffs’ Motion for Remand (doc. 34). The
Motion has been briefed and is now ripe for disposition.
I.

Background.
On October 22, 2016, plaintiffs, Tim and Sherrie McKenzie, by and through counsel,

filed an unsigned Complaint (doc. 1-1, at 1) against defendants, Janssen Biotech, Inc. and Dr.
William Sullivan, in the Circuit Court of Monroe County, Alabama. On February 14, 2017,
plaintiffs filed an Amended Complaint (doc. 1-1, at 25) against the same defendants in the same
court.1 The Amended Complaint alleged that plaintiff Tim McKenzie took Remicade to treat his
psoriatic arthritis, and that “[t]he drug was prescribed by Dr. William Sullivan.” (Amended
Complaint, ¶ 2.) Plaintiffs’ pleading further alleged that McKenzie “experienced complications
from severe and significant neuropathy” while taking Remicade, and that he suffered injuries.
(Id., ¶ 3.) According to the Amended Complaint, McKenzie “and his prescribing health care
providers were unaware of the full nature and degree of increased risks associated with the use of
Remicade,” and would have used “other treatments” had they known. (Id., ¶ 4.) In December

1

The copy of the Amended Complaint that defendants attached to their Notice of
Removal (doc. 1) omits all even-numbered pages. Eventually, defendants recognized their error
and filed a “Supplemental Submission of State Court Action” (doc. 24) in this District Court, to
which they attached the entire Amended Complaint as an exhibit. (See doc. 24-1, at 25-47.)

2015, McKenzie “was diagnosed with demyelinating polyneuropathy resulting from the
administration of the drug, Remicade.” (Id., ¶ 5.)
The Amended Complaint described the McKenzies as Alabama residents, indicated that
Janssen is a Pennsylvania corporation with its principal place of business in Pennsylvania, and
identified Dr. Sullivan as “a practicing physician with his principal offices in Fairhope, AL.”
(Id., ¶¶ 6-8.) With regard to the timing of filing suit, plaintiffs pleaded that, despite their
diligence, they did not and could not have discovered the connection between McKenzie’s
injuries and Remicade “until a date within the applicable statute of limitations,” and that
defendants had fraudulently concealed “the true risks associated with ingesting Remicade.” (Id.,
¶¶ 20-21.) Plaintiffs raised seven state-law causes of action against defendants in their Amended
Complaint, to-wit: strict liability (failure to warn), negligence, breach of implied warranty,
breach of express warranty, fraud, loss of consortium, and punitive damages. In large part, these
claims were pleaded against “defendants” generically, without separating out which factual
allegations go with defendant Janssen (the maker of the drug) and which with defendant Dr.
Sullivan (the prescribing physician). Nonetheless, plaintiffs now identify four subparagraphs in
the negligence claim (Count II) that purportedly relate to Dr. Sullivan, including the following:
“e.
Failure to advise that consumption of the drug Remicade could
result in severe and disabling side effects, including but not limited to
complications arising from serious and significant infection and death;
*

*

*

“g.
Failure to provide timely and/or adequate warnings about the
increased potential health risks associated with use of the drug Remicade;
*

*

*

“i.
Failure to provide adequate instructions to doctors and patients to
manage and mitigate known risks associated with the use of Remicade;
and
“j.
Any and all other acts of negligence with respect to the drug
Remicade which may be shown at trial.”
(Amended Complaint, ¶ 59.)
On March 15, 2017, defendant Janssen filed a Notice of Removal (doc. 1) removing this
action to this District Court. Federal jurisdiction was predicated on the diversity provisions of 28
U.S.C. § 1332. In the Notice, Janssen conceded that “Dr. Sullivan is a non-diverse defendant”
(doc. 1, ¶ 5), whose presence would ordinarily destroy complete diversity and prevent subject
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matter jurisdiction from attaching pursuant to § 1332.2 Nonetheless, in the context of this case,
Janssen maintained that Dr. Sullivan’s “citizenship is not relevant to the removal analysis
because he was fraudulently joined solely in an attempt to defeat diversity.” (Doc. 1, ¶ 5.) Now
the McKenzies have filed a Motion for Remand (doc. 34) in which they maintain that diversity
jurisdiction is lacking because Dr. Sullivan was not fraudulently joined, such that his non-diverse
status precludes § 1332 jurisdiction and compels remand to state court. The sole jurisdictional
issue presented by the Motion to Remand (and the sole issue on which that Motion turns) is
whether Dr. Sullivan was or was not fraudulently joined as a defendant in this action.3

2

It is undisputed that the amount-in-controversy prong of § 1332 jurisdiction is
satisfied. Indeed, in several counts of the Amended Complaint, the McKenzies specifically
demand damages in excess of $75,000. (See Amended Complaint, at 16 (demanding damages
“in an amount greater than $100,000” on breach of implied warranty claim), 17 (demanding
damages “in an amount greater than $100,000” on breach of express warranty claim), 19
(demanding “compensatory damages in an amount greater than $100,000” on fraud claim), 21
(demanding “compensatory damages in an amount greater than $100,000” on punitive damages
claim, oddly enough).
3

On April 20, 2017, more than five weeks after the removal of this action to this
District Court, the McKenzies filed what was misleadingly styled a “First Amended Complaint”
(doc. 20), even though it was actually their Second Amended Complaint (and will be referred to
herein by that label). In this Second Amended Complaint, the McKenzies augmented their
claims against Dr. Sullivan by adding a specific cause of action against him for medical
negligence, identified in the pleading as Count VI. In support of that claim, plaintiffs recited the
following factual allegations: (i) Dr. Sullivan treated Tim McKenzie with Remicade beginning in
July 2012 (doc. 20, ¶ 81); (ii) in so doing, Dr. Sullivan provided services to McKenzie within the
line and scope of his profession (id., ¶ 82); (iii) when McKenzie suffered permanent adverse
effects from Remicade in November 2014, Dr. Sullivan “failed to detect that Plaintiff was
suffering from Remicade-induced effects … and continued to infuse Plaintiff further injuring
Plaintiff” (id., ¶ 83); (iv) Dr. Sullivan’s negligence caused McKenzie’s injuries in multiple
respects, including his failure to warn McKenzie of the risks of using Remicade, his failure to
obtain informed consent from McKenzie, his negligent monitoring of McKenzie, his failure to
provide adequate and timely medical care, his failure to comply with applicable standards and
procedures concerning McKenzie’s care, his failure to observe or monitor McKenzie, and his
failure to train or supervise others providing care to McKenzie (id., ¶ 84); and (v) Dr. Sullivan
violated applicable standards of care and his negligence combined and concurred with Janssen’s
to cause McKenzie’s injury in November 2014 (id., ¶ 85).

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II.

Analysis.
A.

Removal Jurisdiction and Burden of Proof.

A removing defendant must establish the propriety of removal under 28 U.S.C. § 1441
and, therefore, must demonstrate the existence of federal jurisdiction. See, e.g., Scimone v.
Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013) (“the burden of establishing removal
jurisdiction rests with the defendant seeking removal”); City of Vestavia Hills v. General Fidelity
Ins. Co., 676 F.3d 1310, 1313 n.1 (11th Cir. 2012) (“The removing party bears the burden of
proof regarding the existence of federal subject matter jurisdiction.”). This burden applies with
equal force in the context of a motion to remand. See Connecticut State Dental Ass’n v. Anthem
Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009) (“On a motion to remand, the removing
party bears the burden of showing the existence of federal subject matter jurisdiction.”). Because
removal infringes upon state sovereignty and implicates central concepts of federalism, removal
statutes must be construed narrowly, with all jurisdictional doubts resolved in favor of remanding
the action to state court. See, e.g., Scimone, 720 F.3d at 882 (“we strictly construe the right to
remove and apply a general presumption against the exercise of federal jurisdiction, such that all
uncertainties as to removal jurisdiction are to be resolved in favor of remand”) (citation and
internal marks omitted).
Here, defendant Janssen predicates federal subject matter jurisdiction solely on the
diversity provisions of 28 U.S.C. § 1332. That section confers original jurisdiction on federal
district courts to entertain civil actions between citizens of different states where the amount in
controversy exceeds $75,000, exclusive of interest and costs. See, e.g., Underwriters at Lloyd’s,
London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010) (“For federal diversity
jurisdiction to attach, all parties must be completely diverse … and the amount in controversy
must exceed $75,000.”) (citations omitted). The Eleventh Circuit has instructed that “[i]n light
of the federalism and separation of powers concerns implicated by diversity jurisdiction, federal
courts are obligated … to scrupulously confine their own jurisdiction to the precise limits which
the statute has defined.” Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1268 (11th Cir. 2000)
(citations omitted).
As a general proposition, “[d]iversity jurisdiction requires complete diversity between
named plaintiffs and defendants.” Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242,
1247 (11th Cir. 2005). The Amended Complaint appears to reflect that both the McKenzies and
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Dr. Sullivan are citizens of Alabama. On its face, then, the pleading does not satisfy the
complete diversity prerequisite for § 1332 jurisdiction. Nonetheless, Janssen argues that
complete diversity is present here pursuant to principles of fraudulent joinder. That doctrine
“provides an exception to the requirement of complete diversity.” Triggs v. John Crump Toyota,
Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). The parties vigorously dispute whether Dr. Sullivan
was fraudulently joined. If he was, then his citizenship is disregarded for diversity purposes and
federal removal jurisdiction properly lies. If he was not fraudulently joined, however, then there
is no complete diversity between plaintiffs and defendants, § 1332 jurisdiction does not exist,
removal was improvident, and this matter must be remanded.
B.

Fraudulent Joinder.
1.

Legal Standard.

“In a removal case alleging fraudulent joinder, the removing party has the burden of
proving that … there is no possibility the plaintiff can establish a cause of action against the
resident defendant.” Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1380 (11th Cir. 1998)
(citation omitted); see also Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011)
(“To establish fraudulent joinder, the removing party has the burden of proving by clear and
convincing evidence that … there is no possibility the plaintiff can establish a cause of action
against the resident defendant”) (citation and internal marks omitted).
“The burden of establishing fraudulent joinder is a heavy one.” Pacheco de Perez, 139
F.3d at 1380; see also Stillwell, 663 F.3d at 1332 (similar). “If there is even a possibility that a
state court would find that the complaint states a cause of action against … the resident
defendant[], the federal court must find that the joinder was proper and remand the case to the
state court.” Stillwell, 663 F.3d at 1333 (citations omitted); see also Pacheco de Perez, 139 F.3d
at 1380 (“Where a plaintiff states even a colorable claim against the resident defendant, joinder is
proper and the case should be remanded to state court.”). Thus, the plaintiff “need only have a
possibility of stating a valid cause of action in order for the joinder to be legitimate.” Stillwell,
663 F.3d at 1333 (citation omitted); see also Ullah v. BAC Home Loans Servicing LP, 538
Fed.Appx. 844, 846 (11th Cir. Aug. 16, 2013) (adopting the “even a possibility” formulation and
explaining that “[t]he standard for evaluating whether the plaintiff can establish a cause of action
against the resident defendant is very lenient”).

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Significantly, the fraudulent joinder standard differs from, and is less stringent than, the
Twombly / Iqbal “plausibility” test that governs motions to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. See Kimball v. Better Business Bureau of West Florida, 613
Fed.Appx. 821, 823 (11th Cir. June 2, 2015) (“Notably, the standard for assessing fraudulent
joinder differs from the one used for Rule 12(b)(6) motions to dismiss[.]”). Whereas the
Twombly test “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.” Stillwell, 663 F.3d at 1333 (citations omitted). Unlike the plausibility test that governs
Rule 12(b)(6) motions in federal court, the Eleventh Circuit utilizes a possibility test for
fraudulent joinder that incorporates pleading standards applicable in state court.4
Under Alabama law, “dismissal for failure to state a claim is properly granted only when
it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief.”
Stovall v. Universal Const. Co., 893 So.2d 1090, 1101 (Ala. 2004) (citations omitted); see also
Ex parte Austal USA, LLC, --- So.3d ----, 2017 WL 836567, *5 (Ala. Mar. 3, 2017) (“a Rule
12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set
of facts in support of the claim that would entitle the plaintiff to relief”) (citation and internal
quotation marks omitted); Mooneyham v. State Bd. of Chiropractic Examiners, 802 So.2d 200,
203 (Ala. 2001) (“[m]otions to dismiss under Rule 12(b)(6) should be granted sparingly”)
(citation omitted). Thus, Alabama law provides that “[t]he dismissal of a complaint is not proper
if the pleading contains even a generalized statement of facts which will support a claim for
relief.” McKelvin v. Smith, 85 So.3d 386, 389 (Ala.Civ.App. 2010) (citations and internal
quotation marks omitted).5 The fraudulent joinder analysis in this case proceeds in recognition
of that legal standard.
4

See Stillwell, 663 F.3d at 1334 (“To determine whether it is possible that a state
court would find that the complaint states a cause of action, we must necessarily look to the
pleading standards applicable in state court, not the plausibility pleading standards prevailing in
federal court.”); Hunt v. Nationstar Mortgage, LLC, --- Fed.Appx. ----, 2017 WL 1325253, *3
(11th Cir. Apr. 11, 2017) (similar).
5

Alabama courts have consistently explained that the threshold a plaintiff’s
pleading must meet is quite low, and that “a complaint is sufficient if it puts a defendant on
notice of the claims asserted against him or her.” Childers v. Darby, 163 So.3d 323, 327 (Ala.
2014). Even “the pleading of legal conclusions is not prohibited, as long as the requisite fair
(Continued)
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2.

Application of Fraudulent Joinder Principles to McKenzies’ Claims
against Dr. Sullivan.

The McKenzies’ Amended Complaint is not terribly detailed in its exposition of the
claims against Dr. Sullivan or the facts upon which they rest.6 But it does not have to be. In
order to overcome the “very lenient” hurdle of fraudulent joinder, the Amended Complaint need
only support a possibility that the McKenzies can establish a cause of action against Dr. Sullivan.
It does. On its face, the Amended Complaint alleges that Dr. Sullivan prescribed Remicade to
Tim McKenzie, that Dr. Sullivan failed to advise McKenzie about the “severe and disabling side
effects” of that drug, and that Dr. Sullivan failed to warn McKenzie that using Remicade could
subject him to “increased potential health risks.” Those allegations, albeit patchy, would appear
to support a colorable claim of negligence against Dr. Sullivan, and thereby preclude a
determination that it is beyond doubt that the McKenzies can prove no set of facts entitling them
to relief from Dr. Sullivan. As such, the fraudulent joinder doctrine is unavailing to exclude the
non-diverse defendant’s citizenship because Janssen (the removing defendant) has failed to show
by clear and convincing evidence that there is no possibility McKenzie has asserted a colorable
claim against Dr. Sullivan. See Henderson v. Washington Nat’l Ins. Co., 454 F.3d 1278, 1284
(11th Cir. 2006) (“Our task is not to gauge the sufficiency of the pleadings in this case. Our
inquiry is more basic: we must decide whether the defendants have proven by clear and
convincing evidence that no Alabama court could find this complaint sufficient …. Henderson’s
patchy allegations may ultimately prove insufficient, but we are unable to say there is no
possibility she has asserted a colorable claim”); Ullah, 538 Fed.Appx. at 846-47 (summarizing

notice is provided thereby to the opponent.” Christy v. Smith Mountain, Inc., 855 So.2d 1103,
1106 (Ala.Civ.App. 2003) (citation omitted).
6

For purposes of the fraudulent joinder inquiry, “we assess jurisdictional facts at
the time of removal.” Scimone, 720 F.3d at 882; see also Legg v. Wyeth, 428 F.3d 1317, 1322
(11th Cir. 2005) (“[t]he determination of whether a resident defendant has been fraudulently
joined must be based upon the plaintiff’s pleadings at the time of removal”) (citation omitted);
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 n.13 (11th Cir. 1994) (“Jurisdictional facts are
assessed on the basis of plaintiff’s complaint as of the time of removal.”). Therefore, the
operative pleading is the Amended Complaint filed in February 2017 (one month before
removal), and not the Second Amended Complaint filed in April 2017 (one month after
removal).

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Henderson as holding that fraudulent joinder standard is not met where “statements in the
complaint, although not referring to the non-diverse defendant specifically, set forth allegations
which provided at least some notice of the claim,” even though “the ‘patchy allegations’ might
ultimately prove insufficient”).
The removing defendant’s three counterarguments do not undermine this conclusion.
First, Janssen maintains that the Amended Complaint does not even raise a negligence claim
against Dr. Sullivan. (Doc. 37, at 6-7.) Janssen’s position is that the negligence claim in Count
II is directed solely at defendants who undertook “the manufacturing, marketing, distribution,
and/or promotion” of Remicade, which Dr. Sullivan did not. In so arguing, defendant is correct
that much of Count II appears aimed at Janssen Biotech for its actions in manufacturing,
marketing and distributing Remicade; however, defendant is incorrect in its contention that
Count II cannot reasonably be read as proceeding against Dr. Sullivan, as well. Count II
contains numerous references to “Defendants” in the plural, which would appear to incorporate
the only two named defendants in the case, Janssen and Dr. Sullivan. Certain factual allegations
in Count II would appear to apply with equal force to the prescribing physician defendant, not
just the drug manufacturer defendant.7 On this record, there is at least a possibility that an
Alabama court could find that Count II of the Amended Complaint (despite its flaws and
imperfections) is directed at Dr. Sullivan in addition to Janssen, rather than solely at Janssen.
Second, Janssen argues that Dr. Sullivan is fraudulently joined because Count II does not
comply with Alabama’s heightened pleading standard for medical negligence. In particular,
Janssen points to the Alabama Medical Liability Act (the “AMLA”), which requires a plaintiff
bringing an action against a health care provider for breach of the standard of care to plead
detailed facts about the provider’s acts and omissions giving rise to the claim.8 But Janssen has
7

For example, Count II alleges that defendants “negligently misrepresented claims
regarding the safety and efficacy and/or the balances of the risks and benefits” of Remicade
“with the intents [sic] to induce Plaintiff Tim McKenzie to use the drugs.” (Amended
Complaint, ¶¶ 36-37.) It alleges that defendants knew “that consumers, including Plaintiff Tim
McKenzie, would foreseeably suffer injury” from taking Remicade. (Id., ¶ 44.) It alleges that
defendants were negligent in failing to advise and warn McKenzie of Remicade’s side effects
and the potential health risks associated with taking it. (Id., ¶ 59(e), (g).)
8

See Ala. Code § 6-5-551 (“The plaintiff shall include in the complaint filed in the
action a detailed specification and factual description of each act and omission alleged by
(Continued)
-8-

not shown that there is no possibility that an Alabama court could deem the McKenzies’
pleading of Count II to be sufficient. After all, “the Alabama Supreme Court has not construed §
6-5-551 as a kind of inflexible, rigid pleading checklist.” Brown v. Endo Pharmaceuticals, Inc.,
38 F. Supp.3d 1312, 1322 n.9 (S.D. Ala. 2014). The point of the statute is to give a health care
provider “fair notice of the claim asserted against him and against which he had to defend.”
Mikkelsen v. Salama, 619 So.2d 1382, 1385 (Ala. 1993). Where that “fair notice” exists, the
Alabama Supreme Court instructs that “the courts should strive to find that” the AMLA pleading
standard is satisfied. Id. at 1384. Although Janssen asserts that the Amended Complaint
contains technical defects as to the AMLA particulars, it does not suggest that Count II fails to
give Dr. Sullivan fair notice. A reasonable reading of Count II is that plaintiffs are alleging that
Dr. Sullivan negligently failed to provide his patient Tim McKenzie with advice and warnings
about the side effects of Remicade, a drug that Dr. Sullivan prescribed to him. Those allegations
(while certainly of less than optimal detail) would appear to provide Dr. Sullivan with fair notice
of the claim, so as to pass muster under Mikkelsen’s interpretation of the AMLA. Under these
circumstances, the Court cannot conclusively determine that there is no possibility an Alabama
court would allow Count II to proceed against Dr. Sullivan.9

plaintiff to render the health care provider liable to plaintiff and shall include when feasible and
ascertainable the date, time, and place of the act or acts.”).
9

Even if Count II were not sufficiently pleaded as presented in the Amended
Complaint, the McKenzies cite Eleventh Circuit precedent for the proposition that the fraudulent
joinder standard requires consideration of whether the state courts would allow an amendment to
the pleading, and if so whether it is possible that the amendment would state a colorable claim
for relief so as to withstand fraudulent joinder scrutiny. (Doc. 34, at 5.) The removing defendant
fails to address this point, but there appears to be Eleventh Circuit precedent (albeit not the case
cited by plaintiffs) supporting it. See Ullah, 538 Fed.Appx. at 846 (in fraudulent joinder context,
applying Georgia law for proposition that proper remedy for an inadequate pleading is generally
“to allow the plaintiff to amend the complaint and provide a more definite statement,” and that
potential for amendment must be considered in determining whether there is a possibility the
plaintiff can establish a cause of action against resident defendant). Here, we know the
McKenzies are capable of amending their complaint to provide more specifics of Dr. Sullivan’s
alleged medical negligence under AMLA. The proof is in the pudding. They have done exactly
that, albeit after removal, in their Second Amended Complaint filed in April 2017. Defendants
identify no legal grounds for concluding that there is no possibility that Alabama courts would
allow such an amendment or deem that amendment sufficient to state a negligence claim against
(Continued)
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Third, Janssen argues that Dr. Sullivan is fraudulently joined because plaintiffs’
allegations against him are “directly contradicted” by their allegations against Janssen. (Doc. 37,
at 9.) Janssen’s reasoning is as follows: Plaintiffs’ theory of liability is that Dr. Sullivan failed to
advise or warn Tim McKenzie about the risks and side effects of taking Remicade. But that
theory “cannot be reconciled with” the Amended Complaint’s numerous allegations that Janssen
“fraudulently, improperly, or inadequately warned doctors or health care providers of the known
risks and side effects of Remicade.” (Id. at 9-10.) Therefore, the argument goes, Dr. Sullivan’s
joinder must be fraudulent. The fundamental problem with this line of argument is that Alabama
law permits plaintiffs to file pleadings that are inconsistent or that plead facts and claims in the
alternative. See, e.g., DRC, Inc. v. Great American Ins. Companies, 901 So.2d 710, 714 (Ala.
2004) (“Inconsistent, alternative and hypothetical pleadings are permitted” under Alabama law)
(citation omitted).10 Alabama law permits the McKenzies to plead both that Janssen wrongfully
failed to warn Dr. Sullivan about Remicade, and that Dr. Sullivan wrongfully failed to warn Tim
McKenzie about Remicade. The Court does not find that the mere presence of inconsistent or
alternative factual allegations and theories of liability eliminates any possibility that Alabama
courts would find that the McKenzies can state a claim against Dr. Sullivan.
3.

Fraudulent Joinder and the Statute of Limitations.

Although he did not join in the Notice of Removal and cannot be classified as a removing
defendant to whom the burden of proving jurisdiction attaches, Dr. Sullivan has filed a Response
(doc. 38) of his own to the Motion to Remand. In that Response, he advances one additional
argument for fraudulent joinder, namely, that the McKenzies’ claims against him are time-

Dr. Sullivan. Thus, Janssen has not shown by clear and convincing evidence that there is no
possibility Tim McKenzie can establish a claim against Dr. Sullivan in the Alabama courts.
10

See also Ex parte King, 591 So.2d 464, 466-67 (Ala. 1991) (“we conclude that
there is no prohibition in the rules against King’s pleading two alternative, inconsistent, and
mutually exclusive claims in her complaint”); Steger v. Everett Bus Sales, 495 So.2d 608, 609
(Ala. 1986) (“a plaintiff may pursue inconsistent remedies by pleading them as alternative
theories of recovery”); Hays v. Skoog, 2017 WL 897594, *8 (N.D. Ala. Mar. 7, 2017) (“It is
well-settled that Alabama law permits inconsistent, alternative, and hypothetical pleadings. …
Defendant has cited no authority that purports to abrogate this general rule in medical
malpractice actions.”).

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barred. Dr. Sullivan posits that the Amended Complaint is “silent as to why the claims
purportedly directed at Dr. Sullivan were untimely filed, and whether such untimeliness should
be excused.” (Doc. 38, at 2.) As the Court understands it, Dr. Sullivan’s timeliness objection
(which is primarily set forth in a pending Motion to Dismiss (doc. 30)) is structured as follows:
(i) plaintiffs’ only claim asserted against Dr. Sullivan is a claim of medical negligence; (ii) under
Alabama law, medical negligence claims must be brought within two years after accrual, which
happens when legal injury occurs;11 (iii) Tim McKenzie began to experience rapidly progressive
bilateral sensorimotor demyelinating polyneuropathy in November 2014 (Amended Complaint, ¶
5); and (iv) the Amended Complaint was filed on February 17, 2017, outside the two-year
limitations period. According to Dr. Sullivan, “[t]he records at removal prove that it is
impossible for the McKenzies’ claims to succeed because they are time-barred.” (Doc. 38, at
10.)
This argument falls short of the stringent fraudulent joinder standard for at least two
reasons. First, it is black-letter law that “[a] statute of limitations bar is an affirmative defense,
and plaintiffs are not required to negate an affirmative defense in their complaint.” La Grasta v.
First Union Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004) (citation and internal marks
omitted). Because of this rule, “a Rule 12(b)(6) dismissal on statute of limitations grounds is
appropriate only if it is apparent from the face of the complaint that the claim is time-barred.”
Boyd v. Warden, Holman Correctional Facility, 856 F.3d 853, 872 (11th Cir. 2017) (citation
omitted). Whatever else may be said, it is not “apparent from the face of the complaint” that the
McKenzies’ claims against Dr. Sullivan are time-barred. Recall that the original Complaint
(which named Dr. Sullivan as a defendant and included negligence allegations substantively
identical to those in the Amended Complaint) was filed in state court on October 22, 2016. The
original Complaint and Amended Complaint both pinpoint the injury to Tim McKenzie as
beginning “in approximately November, 2014.” (Doc. 24-1, at 2 & 26.) It is not facially
11

This statement appears accurate and uncontroversial. See Ala. Code § 6-5-482(a)
(“All actions against physicians … for liability, error, mistake, or failure to cure, whether based
in contract or tort, must be commenced within two years next after the act, or omission, or failure
giving rise to the claim”); Ex parte Sonnier, 707 So.2d 635, 637 (Ala. 1997) (“The limitations
period for a medical malpractice action begins to run upon the accrual of a cause of action. …
Accrual occurs when the wrongful act results in legal injury to the plaintiff.”) (citations and
internal quotation marks omitted).

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apparent from the pleading that the claim against Dr. Sullivan is time-barred; therefore, the
McKenzies were not required to plead additional facts or law in their Amended Complaint to
defeat that affirmative defense. Based on the pleadings, the Court cannot rule out the possibility
that the McKenzies can advance claims against Dr. Sullivan that are not time-barred because the
McKenzies were under no obligation to negate that defense in formulating their Amended
Complaint.
Second, and more fundamentally, Dr. Sullivan’s timeliness argument is grounded in a set
of factual and legal assumptions that this Court cannot embrace in a fraudulent joinder analysis.
Central to the argument is his statement that “Dr. Sullivan … regards the initial unserved
Complaint as a nullity.” (Doc. 30, at 2.) After all, Dr. Sullivan acknowledges (as he must) that
the McKenzies filed their original Complaint against Janssen and him in October 2016, which
plainly falls within AMLA’s two-year limitations period prescribed by § 6-5-551. The only way
Dr. Sullivan’s timeliness argument works, then, is if the October 2016 iteration of the
McKenzies’ Complaint does not count for limitations purposes. Why wouldn’t it count? Dr.
Sullivan says it’s because “[t]he McKenzies failed to exhibit a bona fide intent to have the initial
Complaint filed in October, 2016 immediately served on Dr. Sullivan within the required twoyear period.” (Id. at 13 (internal marks omitted).) How do we know the McKenzies lacked such
intent? Dr. Sullivan says it’s because plaintiffs’ lawyers failed to sign the Complaint or pay “a
fee for service of process.” (Id.)12 The trouble is that Dr. Sullivan provides no Alabama
authorities interpreting Alabama statutes and procedural rules as accelerating the prescribed
period for service of process in these circumstances, imputing lack of bona fide intent where (for
whatever reason) plaintiff’s counsel failed to sign the complaint, or declaring a complaint to be a
“nullity” under circumstances analogous to these. Even if he had, Dr. Sullivan skims over the
12

As a factual matter, the latter assertion appears questionable. State-court records
reflect that the McKenzies paid $596.44 in fees to the Monroe County Circuit Court Clerk’s
Office on October 31, 2016, just nine days after the original Complaint was filed, leaving an
outstanding balance of $0. (Doc. 10-1, at 6, 8.) It is unclear what fees Dr. Sullivan contends the
McKenzies were required to pay, but failed to pay, in conjunction with the filing of the
Complaint. These records also undermine as irrelevant Dr. Sullivan’s citation of Alabama
authority for the proposition that “Paying the filing fee is a ‘jurisdictional prerequisite’ to
commencement of a lawsuit.” (Doc. 30, at 13-14.) By all appearances, the McKenzies in fact
paid that filing fee and satisfied that jurisdictional prerequisite on October 31, 2016, which is
within the two-year limitations period under the AMLA.

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obvious need to develop a factual record to ascertain what steps plaintiffs’ counsel took to
perfect service of process, the timing of those steps, and the intent or lack thereof to perfect
service immediately.
The Eleventh Circuit has cautioned that “[o]rdinarily, where the viability of a plaintiff’s
claim against a non-diverse defendant depends on whether [the discovery rule for timeliness]
applies, the case should be remanded summarily; such a question is emphatically a matter for the
state courts to decide.” Henderson, 454 F.3d at 1282. This Court concludes that the same holds
true where, as here, a defendant contends the first iteration of the plaintiffs’ complaint should be
deemed a “nullity” for limitations purposes because plaintiffs’ counsel did not sign it and did not
pay a service fee (the latter of which may not be supported by the attached court records). It is
emphatically for the courts of Alabama to determine whether a complaint filed in circumstances
such as these is or is not time-barred under Alabama laws and rules of procedure. See id. at 1284
(“In this case, the decision as to the sufficiency of the pleadings is for the state courts, and for a
federal court to interpose its judgment would fall short of the scrupulous respect for the
institutional equilibrium between the federal and state judiciaries that our federal system
demands.”). There also appears to be a need for development of a factual record beyond that
which defendants have supplied. Such factual development is properly done at the state-court
level.
For all of the foregoing reasons, the Court finds that Dr. Sullivan’s timeliness argument
does not establish beyond a doubt that the McKenzies cannot state a claim against the nondiverse defendant. The grounds for this determination are as follows: (i) plaintiffs were not
required to negate the affirmative defense of limitations in their original Complaint; (ii) the
original Complaint was filed prior to expiration of the limitations period; (iii) Dr. Sullivan’s
“nullity” argument requires factual development that has not occurred; (iv) Dr. Sullivan’s nullity
argument implicates questions of Alabama law and procedure that may not be settled, and that
are properly left for state courts to decide as a matter of scrupulous respect for institutional
equilibrium between federal and state courts; and (v) Dr. Sullivan has not shown by clear and
convincing evidence that there is no possibility that an Alabama court would deem Tim
McKenzie’s negligence claim against him to be timely.

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III.

Conclusion.
A removing defendant bears a heavy burden of showing that a non-diverse defendant was

fraudulently joined to defeat federal diversity jurisdiction. Here, the defendants have shown that
the Complaint and Amended Complaint may have significant defects. The Court cannot find on
this record, however, that such problems are necessarily insurmountable for the McKenzies.
Under the circumstances presented here, it is properly left to the Alabama courts to decide the
sufficiency of the pleadings and whether plaintiffs have actually stated a claim against the nondiverse defendant, Dr. Sullivan. This Court finds only that the removing defendant has failed to
prove by clear and convincing evidence that there is no possibility plaintiffs can establish a cause
of action against Dr. Sullivan. Therefore, complete diversity is lacking, § 1332 jurisdiction does
not exist, removal was improvident, and this case must be remanded. Plaintiffs’ Motion for
Remand (doc. 34) is granted, and this action is remanded to the Circuit Court of Monroe
County, Alabama, for further proceedings.
DONE and ORDERED this 21st day of June, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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