J.H. et al v. Pfizer Inc. et al

Filing 28

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on March 30, 2016. Mailed notice (ph, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
J.H., A MINOR BY NORMA HALVER,
HER MOTHER AND NEXT FRIEND,
et al.,
Plaintiff,
v.
PFIZER INC., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

No. 16 C 302

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiffs’ motion to remand. For the
reasons stated below, the motion to remand is granted.

BACKGROUND
Plaintiffs include women (Mothers) who were allegedly prescribed Zoloft, or
its generic equivalent sertraline hydrochloride (Drug), while pregnant. As a result of
taking the medication, the Mothers’ children were born with congenital
abnormalities. The Mothers and their minor children brought the instant action in
Illinois state court against Defendants who allegedly designed, manufactured and
distributed the Drug. On January 11, 2016, Defendants removed the instant action to

1

federal court. Plaintiffs now move to remand the action back to state court.

LEGAL STANDARD
Pursuant to 28 U.S.C. § 1441(a), “[e]xcept as otherwise expressly provided by
Act of Congress, any civil action brought in a State court of which the district courts
of the United States have original jurisdiction, may be removed by the defendant or
the defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.” Id. Pursuant to 28 U.S.C. §
1447(c), “[i]f at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.” Id. When an action is
removed to federal court and a defendant invokes federal subject matter jurisdiction,
the defendant bears the burden of showing that the federal court has subject matter
jurisdiction. See Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 617 (7th
Cir. 2012)(stating that “[t]he party invoking federal jurisdiction bears the burden of
demonstrating its existence”).

DISCUSSION
Defendants contend in the notice of removal that this court has diversity
subject matter jurisdiction pursuant to 28 U.S.C. § 1332. (Not. 1, Par. 6).

I. Reliance on Proposed Second Amended Complaint
Defendants assert in the notice of removal that they removed the case based
2

upon the allegations and parties listed in Plaintiffs’ second amended complaint.
However, Plaintiffs have shown that while they filed a motion in state court for leave
to file a proposed second amended complaint, Defendants removed the instant action
before the state court ever had an opportunity to rule on the motion. It is true that an
amended complaint supersedes the prior pleading. See Chasensky v. Walker, 740
F.3d 1088, 1094 (7th Cir. 2014)(stating that “[w]hen a plaintiff files an amended
complaint, the new complaint supersedes all previous complaints and controls the
case from that point forward . . . [b]ecause a plaintiff’s new complaint wipes away
prior pleadings, the amended complaint opens the door for defendants to raise new
and previously unmentioned affirmative defenses”)(internal quotations
omitted)(quoting Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999)). However,
Plaintiffs are correct that until the state court actually grants Plaintiffs leave to file
the proposed second amended complaint, the first amended complaint remains in
effect in this case. See Sullivan v. Conway, 157 F.3d 1092, 1094 (7th Cir.
1998)(stating that “[u]ntil the state judge granted the motion to amend, there was no
basis for removal” and “[u]ntil then, the” original complaint controlled the claims in
that action). Thus, there is no second amended pleading in this case. Defendants
also devote arguments as to whether an amended pleading relates back to a prior
pleading, but as explained above, there is no second amended pleading in this case.
Nor is there any ambiguity in the law that would have justified Defendants’
premature removal.
Defendants argue that as soon as the motion for leave to amend was filed with
3

the proposed second amended complaint, the proposed second amended complaint
should have become effective. Such an argument lacks any merit. If the state court
denied the motion for leave to amend, it makes little sense that the proposed
amended complaint temporarily superseded the prior pleading and was the
controlling pleading in this case while the state court pondered whether to allow
Plaintiffs to file the pleading. Until leave is granted to file an amended complaint,
that pleading has no legal effect. Defendants have not shown that any prejudice to
them would have resulted if they were required to wait for the state court to rule on
the motion for leave to amend. Nor does rushing to federal court based on potential
pleadings promote the efficient administration of justice or judicial economy.
Defendants’ removal was thus premature and defective on its face by relying upon a
proposed second amended complaint that at this juncture does not delineate any of
the parties or claims in the instant action.

II. Untimely Removal
In addition, although Defendants did not wait until the state court had an
opportunity to rule on the motion for leave to file a second amended complaint,
Defendants did wait over three years before deciding to seek to remove the instant
action to federal court. Pursuant to 28 U.S.C. § 1446(c), “[a] case may not be
removed under subsection (b)(3) on the basis of jurisdiction conferred by section
1332 more than 1 year after commencement of the action, unless the district court
finds that the plaintiff has acted in bad faith in order to prevent a defendant from
4

removing the action.” Id. The instant action was initiated in state court on
September 13, 2012. Yet Defendants chose not to seek to remove the instant action
until January 11, 2016. Defendants contend that the proposed second amended
complaint restarted the limitations period. However, as explained above there is no
second amended complaint in this case. Defendants removed the instant action
before the state court had an opportunity to grant or decline to grant leave to file a
second amended complaint. There was no new pleading that restarted the limitations
period. The removal was thus untimely.

III. Lack of Diversity
Plaintiffs also point out that even if Defendants were allowed to remove the
instant action based upon the proposed second amended complaint, the parties in that
proposed second complaint are not of diverse citizenship. Although Defendants
contend that there is diversity of citizenship, Plaintiff C.M. and Defendant H.D.
Smith Wholesale Drug Co. (H.D. Smith) are both citizens of Illinois. Defendants
argue that H.D. Smith was fraudulently joined as a defendant and should be
disregarded. The defendant that removes the action to federal court “bears the
burden of proving the propriety of removal,” and “doubts regarding removal are
resolved in favor of the plaintiff’s choice of forum in state court.” Morris v. Nuzzo,
718 F.3d 660, 668 (7th Cir. 2013). The Seventh Circuit has stated that “[f]raudulent
joinder is difficult to establish.” Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d
752, 764 (7th Cir. 2009). In order to establish that a defendant was fraudulently
5

joined, the defendant must show “that, after resolving all issues of fact and law in
favor of the plaintiff, the plaintiff cannot establish a cause of action against the
in-state defendant.” Id. (stating “[a] defendant faces a heavy burden to demonstrate
that the joinder is fraudulent”).
Plaintiffs first alleged in their original complaint that H.D. Smith is the fourth
largest pharmaceutical wholesaler in the United States and that H.D. Smith is a
wholesaler and distributor for Defendant Pfizer, Inc. (Compl. Par. 26). Plaintiffs
further allege that H.D. Smith marketed, distributed and sold the Drug to the
Mothers. (Compl. Par. 25). Although Defendants provide a variety of arguments as
to why they believe that H.D. Smith should prevail on the claims brought against it,
Defendants have not met the high burden of establishing that Plaintiffs fraudulently
joined H.D. Smith as a Defendant in this action. Defendants seek to contest
Plaintiffs’ allegations, disputing whether H.D. Smith distributed the Drug to
Plaintiffs. (Ds Resp. 8). However, the allegations in Plaintiffs’ complaint must be
accepted as true at this juncture. Defendants have not shown that Plaintiffs have
presented any allegations that would be factually frivolous. Nor have Defendants
met their burden to show that Plaintiffs acted in bad faith in seeking to join any new
Plaintiffs in this action. Thus, even if the court proceeded based on Plaintiffs’
proposed second amended complaint, this court would lack diversity subject matter
jurisdiction. Based on the above, Plaintiffs’ motion to remand is granted.

6

CONCLUSION
Based on the foregoing analysis, Plaintiffs’ motion to remand is granted.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: March 30, 2016

7