Tobias et al v. Merck Sharp & Dohme, Corp.

Filing 22

ORDER finding as moot 5 Motion to Sever and granting 10 Motion to Remand to State Court. Case remanded to St. Clair County, Illinois Circuit Court. See Order for details. Signed by Chief Judge David R. Herndon on 1/31/12. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BETH TOBAIS and
MARGARET FREIBERG,

Plaintiffs,

v.

MERCK SHARPE & DOHME CORP.,

Defendant.

No. 11-0982-DRH

MEMORANDUM and ORDER
HERNDON, Chief Judge:
I. Introduction and Background
Pending before the Court is plaintiffs’ motion to remand (Doc. 10). Defendant
opposes the motion (Doc. 17). Based on the following, the Court grants the motion.
On October 5, 2011, plaintiffs Beth Tobias and Margaret Freiberg filed suit
against Meck Sharpe & Dohm Corporation (“Merck”) for injuries (bone fractures)they
sustained from using the osteoporosis drug Fosamax in the St. Clair County, Illinois
Circuit Court. (Doc. 2-1).

Plaintiffs assert strict liability, negligence, breach of

warranty, negligent misrepresentation, and fraudulent misrepresentation theories,
arising from Fosamax’s role in causing plaintiffs’ injuries and defendant’s liability

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for plaintiffs’ injuries and damages. On November 4, 2011, Merck removed the case
to this Court based on diversity jurisdiction, 28 U.S.C. ¶ 1332 (Doc. 2). Merck
alleges that there is diversity because plaintiffs have no connection to each other and
have brought their claims together to defeat diversity jurisdiction. In particular,
Merck

argues that Tobias was fraudulently misjoined in this action to defeat

diversity jurisdiction relying on Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353,
1360 (11th Cir. 1996). That same day, defendant filed a motion to sever (Doc. 5) and
a motion to stay pending transfer to In re: Fosomax (Alendronate Sodium Products
Liability Litigation (No. II), MDL No. 2243 (Doc. 6).
On November 8, 2011, plaintiffs filed a motion to remand and for expedited
hearing (Doc. 8). On November 9, 2011, the Court granted plaintiffs’ request for
expedited hearing on the remand motion and allowed Merck up to and including
November 23, 2011 to file its response (Doc. 12). The Court also denied Merck’s
motion to stay (Doc. 14). On November 23, 2011, Merck filed its response in
opposition to remand. As the motion to remand is ripe, the Court turns to address
the merits.
II. Analysis
The removal statute, 28 U.S.C. § 1441, is construed narrowly, and doubts
concerning removal are resolved in favor of remand. Doe v. Allied-Signal, Inc., 985
F.2d 908, 911 (7th Cir.1993). Defendants bear the burden to present evidence of
federal jurisdiction once the existence of that jurisdiction is fairly cast into doubt. See
In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir.
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1997). “A defendant meets this burden by supporting [its] allegations of jurisdiction
with ‘competent proof,’ which in [the Seventh Circuit] requires the defendant to offer
evidence which proves ‘to a reasonable probability that jurisdiction exists.’ ” Chase
v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997) (citations
omitted). However, if the district court lacks subject matter jurisdiction, the action
must be remanded to state court pursuant to 28 U.S.C. § 1447(c)
The statute regarding diversity jurisdiction, 28 U.S.C. § 1332, requires
complete diversity between the parties plus an amount in controversy which exceeds
$75,000, exclusive of interest and costs.1 Complete diversity means that “none of the
parties on either side of the litigation may be a citizen of the state of which a party on
the other side is a citizen.” Howell v. Tribune Entertainment Co., 106 F.3d 215, 217
(7th Cir. 1997) (citations omitted). Here, the problem is that both plaintiff Tobias
and defendant Merck are citizens of New Jersey.
Plaintiffs argue that there is no diversity jurisdiction as the parties are not
diverse.

Specifically, plaintiff argues that the Court should follow its previous

decisions on the issue of fraudulent misjoinder: reject the Tapscott decision and
remand this case for lack of diversity jurisdiction. Merck argues that the Court
should deny the motion to remand because Frieberg, a single plaintiff from Illinois,
has combined her individual and factually dissimilar claims with Tobias, a single
plaintiff from New Jersey into a single lawsuit raising disputes that have no

1

The parties do not dispute that the amount in controversy.

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connection to St. Clair County whatsoever in order to avoid jurisdiction of the federal
courts. Merck also argues that plaintiffs have joined their individual and distinct
personal injury claims, in contravention of the Rule 20 standard for joinder, for the
sole purpose of forum shopping in contravention of the federal rules, thus, plaintiffs
are fraudulently misjoined and should not be permitted to avoid federal jurisdiction.
Reviewing the facts of this case and the other decisions on this issue, the Court
finds that remand is warranted. See In re Yasmin, 779 F.Supp. 846, 847-48. (S.D.
Ill. 2011)(09-md-2100-DRH). Like Merck, the defendant manufacturers removed
the cases to federal court, alleging “fraudulent misjoinder”. Id. at 853. The plaintiffs
filed a motion to remand. In granting remand, this Court rejected the “fraudulent
misjoinder” theory, and declined to expand removal jurisdiction by adopting the
theory:
“[T]he decision to enlarge the scope of federal diversity jurisdiction
on removal through the adoption of the fraudulent misjoinder
doctrine is one for Congress to make. The Court concludes further
that the doctrine is neither simple nor easy to apply. For this reason,
it is unlikely to promote consistent results or conservation of the
resources of courts and parties. Accordingly, the undersigned District
Judge aligns himself with numerous previous decisions by other
judges of the Court in declining to recognize the fraudulent
misjoinder doctrine.”
Id. at 857 (citing Sabo v. Dennis Techs., LLC, 2007 WL 1958591 (S.D.Ill. July 2,
2007)(Case No. 07-cv-283-DRH)); Accord, Anderson v. Bayer, 2010 WL 148633
(S.D.Ill. 2010)(Case No. 09–988–GPM)(Rejecting theory of fraudulent misjoinder as
grounds for removal and granting remand in a products liability case brought for
injuries suffered from the drug Trasylol); Aranda v. Walgreen Co., 2011 WL
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3793648, *2 (S.D. Ill. 2011) (Case No. 11– cv–654–JPG–DGW) (Rejecting theory of
fraudulent misjoinder as grounds for removal and granting remand in a products
liability case brought for injuries suffered from the drug Accutane); Bavone v. Eli
Lilly & Co., 2006 WL 1096280, at *1 (S.D.Ill. 2006)(Case No. 06–cv153–GPM)(Rejecting theory of fraudulent misjoinder as grounds for removal and
granting remand in a products liability case brought for injuries suffered from the
drug Zyprexa). The Court finds no reason to depart from its previous decisions on
this issue and declines Merck’s suggestion to do so. As there is not complete
diversity between the parties, the Court lacks subject matter jurisdiction and this
matter must be remanded.
III. Conclusion
Accordingly, the Court GRANTS plaintiffs’ motion to remand (Doc. 10) and
DENIES as moot defendant’s motion to sever (Doc. 5). Because the Court lacks
subject matter jurisdiction, the Court REMANDS this case to the St. Clair County,
Illinois Circuit Court.
IT IS SO ORDERED.
Signed this 31st day of January, 2011.

David R. Herndon
2012.01.31
11:27:05 -06'00'
Chief Judge
United States District Court

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