Rosenstern et al v. Allergan, INC. et al

Filing 63

MEMORANDUM Opinion and Order. Signed by the Honorable Thomas M. Durkin on 4/23/2014:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KLAUS ROSENSTERN, individually and as
Executor of the Estate of JANET
ROSENSTERN,
No. 13 C 4416

Plaintiff,

Judge Thomas M. Durkin

v.
ALLERGAN, INC., AND ALLERGAN USA,
INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Klaus Rosenstern has moved for leave to file an amended complaint
joining Dr. Steven Dayan and the entities through which he does business, True
Skin Care Center and Chicago Center for Facial Plastic Surgery S.C., as defendants
pursuant to Federal Rule of Civil Procedure 20(a)(2)(A). R. 52; R. 57. Rosenstern’s
complaint alleges that Dr. Dayan and his businesses are Illinois residents. R. 57 ¶¶
14-15. Since Rosenstern is also an Illinois resident, and the Court’s jurisdiction is
based on diversity, Rosenstern’s motion threatens to destroy diversity and divest
the Court of jurisdiction.
Under 28 U.S.C. § 1447(e), “[i]f after removal the plaintiff seeks to join
additional defendants whose joinder would destroy subject matter jurisdiction, the
court may deny joinder, or permit joinder and remand the action to State court.” As
the Seventh Circuit has emphasized, “[t]hese are the only options; the district court

may not permit joinder of a nondiverse defendant and retain jurisdiction.” Schur v.
L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759 (7th Cir. 2009) (emphasis in
original).
In order to assess whether post-removal joinder of a nondiverse party is
appropriate, the Court considers the following factors: “(1) the plaintiff’s motive for
seeking joinder, particularly whether the purpose is to defeat federal jurisdiction;
(2) the timeliness of the request to amend; (3) whether the plaintiff will be
significantly injured if joinder is not allowed; and (4) any other relevant equitable
considerations.” Schur, 577 F.3d at 759.
Here, it cannot be said that Rosenstern is motivated to defeat federal
jurisdiction. There is no question that Dr. Dayan and his businesses are appropriate
defendants, since Rosenstern alleges that Dr. Dayan caused Janet Rosenstern’s
injuries by treating her with Botox. See R. 57. This alleged conduct clearly “aris[es]
out of the same transaction or occurrence” as Rosenstern’s allegations against
Allergan as the manufacturer of Botox, and joinder would be appropriate on that
basis. See Fed. R. Civ. P. 20(a)(2)(A). Moreover, it is patently clear from face of
amended complaint that there are numerous common facts that would have to be
tried twice—in this Court and in state court—if the Court does not permit joinder
here. A single trial will conserve judicial resources.
The issue here, as Allergan notes, is whether Rosenstern’s motion is timely
and whether there is any prejudice to Allergan that would make joinder at this time
inequitable. Allergan argues that “[r]emand to state court will inevitably cause the

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trial of this matter to be delayed for years,” and Rosenstern “has waited until the
last minute to raise this issue with the Court.” R. 59 ¶ 2.1 It has been more than ten
months since Allergan removed this case from state court on June 14, 2013. R. 1-1.
But Rosenstern’s delay in seeking to join Dr. Dayan and his businesses as
defendants is a result of requirements of Illinois law rather than any intentional
delay by Rosenstern. Rosenstern’s original complaint included Dr. Dayan and his
businesses as respondents in discovery pursuant to 735 ILCS 5/2-402. R. 1-1
(Counts XI-XIII). Rosenstern did not originally name them as defendants because
Rosenstern had not yet consulted with a health professional as required by 735
ILCS 5/2-622 to determine whether there is a reasonable and meritorious cause of
action against Dr. Dayan and his businesses. Rosenstern’s counsel now affirms that
he has consulted with a medical professional and has a basis to join Dr. Dayan. R.
58. Although it took several months for Rosenstern to complete this process, the
Court cannot say that Rosenstern’s motion is not timely.
Furthermore, a return to state court does not doom this case to additional
“years” of litigation as Allergan contends. The discovery that the parties have
already completed will not have to be duplicated upon remand. There is no reason
that the state court will not dispatch this case with any less deliberate speed than
would this Court.

Dr. Dayan also filed an opposition to Rosenstern’s motion, R. 60, but Dr. Dayan’s
brief included only argument regarding the substance of Rosenstern’s allegations
and not whether he should be properly joined.

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Conclusion
For the foregoing reasons, Rosenstern’s motion for leave to amend his
complaint, R. 52, is granted, and the case is remanded to state court pursuant to 28
U.S.C. § 1447(e).
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: April 23, 2014

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