Abel et al v. SmithKline Beecham Corporation

Filing 18

ORDER OF REMAND, granting 11 plaintiffs' motion to remand : Case remanded to Twentieth Judicial Circuit Court in St. Clair County, Illinois.Signed by Chief Judge David R. Herndon on 10/30/2013. (mtm)

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

ADRIENNE ABEL, et al.,
Plaintiffs,
v.
SMITHKLINE BEECHAM CORPORATION d/b/a
GLAXOSMITHKLINE,
Defendants.

Case No. 13-cv-780-DRH-DGW

MEMORANDUM & ORDER

HERNDON, Chief Judge:
I.

INTRODUCTION

Plaintiffs’ motion to remand this action to the Twentieth Judicial Circuit
Court in St. Clair County, Illinois, is now before the Court (Doc. 11). Defendant,
named in plaintiffs’ complaint as SmithKline Beecham Corporation d/b/a/
GlaxoSmithKline (“GSK”), of course opposes remand (Doc. 14). As the Court reaffirms its previous decisions on the subject presented herein, plaintiffs’ motion
to remand is GRANTED.
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II.

BACKGROUND

This action is representative of a number of Avandia product liability cases
brought against GSK in St. Clair County, Illinois, in June 2013; removed to this
Court thereafter.1 The issues presented in plaintiffs’ instant request are relatively
straightforward and require little background.
First, the Court notes it has recently declined plaintiffs’ invitation to reject
the findings and reasoning of the Third Circuit and hold that GSK is a citizen of
Pennsylvania. In adopting the reasoning of the Third Circuit, finding that GSK is
in fact a citizen of Delaware, see Johnson v. SmithKline Beecham Corp., 724
F.3d 337, 352-357 (3d Cir. 2013), this Court recently denied plaintiffs’ motions to
remand in Carroll, Font, Jamison, Mekal, Reeves, Sullivan, and Williams. Very
shortly thereafter, the plaintiffs voluntarily dismissed all plaintiffs in Reeves,
Sullivan, and Mekal (actions in which plaintiffs could dismiss by notice, see Fed.
R. Civ. P. 41(a)(1)(A)(i)). As for Jamison, Font, Williams, and Carroll, these
actions have since been swept away to MDL 1871.
As for this action, plaintiffs dismissed the claims of all but three
individuals: Kathleen Arcuri (“Arcuri”) (a New York citizen), Barbara Arnone

1

See also Reeves, et al. v. SmithKline Beecham Corporation, 13-cv-675-DRHDGW; Sullivan, et al. v. SmithKline Beecham Corporation, 13-cv-676-DRH-DGW;
Jamison, et al. v. SmithKline Beecham Corporation, 13-cv-677-DRH-DGW; Font,
et al. v. SmithKline Beecham Corporation, 13-cv-678-DRH-DGW; Williams, et al.
v. SmithKline Beecham Corporation, 13-cv-680-DRH-DGW; Mekal, et al. v.
SmithKline Beecham Corporation, 13-cv-683-DRH-DGW; and Carroll, et al. v.
SmithKline Beecham Corporation, 13-cv-685-DRH-DGW.

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(“Arnone”) (a Delaware citizen), and Saidan Bibi (“Bibi”) (a Michigan citizen). With
these facts in mind, the Court turns to the dispute at hand.

III.

LAW AND APPLICATION

Under the removal statute, defendants may remove an action from state
court if it originally could have been brought in federal court. 28 U.S.C. § 1441(a).
“[F]ederal courts should interpret the removal statute narrowly, resolving any
doubts in favor of the plaintiff's choice of forum in state court.” Schur v. L.A.
Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009). The party seeking
removal bears the burden of establishing federal subject matter jurisdiction. Doe
v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). GSK bases removal on
diversity jurisdiction, which requires complete diversity of citizenship between
plaintiffs and defendants and an amount in controversy exceeding $75,000.00. 28
U.S.C. § 1332.
The monetary threshold is undisputed. However, to summarize this dispute
in the simplest of terms, on the face of the complaint we have a plaintiff, Arnone,
and a defendant, GSK, who are both citizens of Delaware. GSK’s solution to this
jurisdictional blockade is to sever and remand Arnone’s claims, while retaining
jurisdiction over the claims of Arcuri and Bibi. GSK relies upon the doctrine of
“procedural misjoinder,” also knows as “fraudulent misjoinder,” first recognized

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in Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), and
since rejected by this Court in Sabo v. Dennis Techs., LLC, 2007 WL 1958591
(S.D. Ill. July 2, 2007) (Herndon, J.) and In re Yasmin and Yaz (Drospirenone)
Marketing, Sales Practices and Products Liability Litigation, 779 F. Supp. 2d
846, 853 (S.D. Ill. 2011) (Herndon, J.), and also by several other District Judges
in this District. See e.g. Rutherford v. Merck Co., 428 F. Supp. 2d 842, 851 (S.D.
Ill. 2006) (Murphy, J.); Aranda v. Walgreen Co., 2011 WL 3793648 (S.D. Ill. Aug.
24, 2011) (Gilbert, J.).
Fraudulent joinder, which the Seventh Circuit has recognized, “occurs
either when there is no possibility that a plaintiff can state a cause of action
against nondiverse defendants in state court, or where there has been outright
fraud in the pleading.” See Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th
Cir. 1993). “In determining whether there is diversity of citizenship, fraudulently
joined parties are disregarded.” Id.
In contrast, procedural misjoinder, which the Seventh Circuit has not had
occasion to discuss, typically invokes a defendant’s argument that a plaintiff’s
complaint has egregiously misjoined unrelated, non-fraudulent claims of nondiverse plaintiffs, in an attempt to avoid federal court. See Tapscott, 77 F.3d at
1360. Thus, the doctrine of procedural misjoinder requires a court to evaluate the
applicable permissive joinder rules.

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This Court has extensively discussed its reasoning in respectfully declining
to recognize the doctrine of procedural misjoinder. See Sabo, 2007 WL 1958591
at *6-8; In re Yasmin, 779 F. Supp. 2d at 853-857. To summarize, this Court
feels that recognition of such a doctrine acts as an improper expansion of subject
matter jurisdiction, as misjoinder under the applicable permissive joinder rules is
a matter to be resolved first at the state level. Joinder of non-fraudulent claims
does not appear to this Court to implicate subject matter jurisdiction.
Additionally, the need for clear and precise jurisdictional rules weighs against this
Court’s recognition of procedural misjoinder. See id.
Notably, this Court shares GSK’s frustrations concerning plaintiffs’ joinder
of seemingly unrelated claims in an apparent attempt to avoid the MDL
procedure. Due to this Court’s extensive MDL experience, it fully appreciates the
efficiency and benefits associated with MDL. However, GSK has not met its
burden of demonstrating subject matter jurisdiction exists. This Court follows the
reasoning of its previous orders and once again declines to recognize the doctrine
of procedural misjoinder until such time as it is endorsed by the Seventh Circuit
or Supreme Court.
IV.

CONCLUSION

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For the reasons stated above, plaintiffs’ motion to remand is GRANTED
(Doc. 11). This case is hereby REMANDED to the Twentieth Judicial Circuit
Court in St. Clair County, Illinois.2
IT IS SO ORDERED.
Signed this 30th day of October, 2013.

David R.
Herndon
2013.10.30
05:54:56
-05'00'

Chief Judge
United States District Court

2

GSK’s response in opposition to remand contains an alternative request for certification for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The Court shall not meaningfully address
GSK’s undeveloped argument, as GSK does not address the fact that 28 U.S.C. 1447(d) expressly
provides that an order remanding a case is not appealable if made pursuant to the grounds set
forth in section 1447(c). See Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 126–28 (1995).
GSK’s request for certification for interlocutory appeal is denied at this time.

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