CAYWOOD v. ANONYMOUS HOSPITAL et al

Filing 38

ORDER granting Pltf's 17 Motion to Remand. Any objections to the Magistrate Judge's Order shall be filed with the Clerk in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(a), and failure to file timely objections within fourteen days after service shall constitute a waiver of subsequent review absent a showing of good cause for such failure. Signed by Magistrate Judge Mark J. Dinsmore on 3/29/2012. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

PATRICIA CAYWOOD, Individually and )
as the Personal Representative of the Estate )
of JAMES CAYWOOD, Deceased
)
)
Plaintiff,
)
vs.
)
)
ANONYMOUS HOSPITAL; and CR
)
BARD, INC. d/b/a BARD ACCESS
)
SYSTEMS,
)
)
Defendants.
)

NO. 1:11-cv-01313-TWP-MJD

Order on Plaintiff’s Motion to Remand
This matter comes before the Court on Plaintiff Patricia Caywood’s (“Caywood”) Motion
to Remand the matter to the Marion County Superior Court No. 1. [Dkt. 17]. For the reasons
discussed below, pursuant to Rule 72(a) of the Federal Rules of Civil Procedure,1 the Court
GRANTS Caywood’s Motion to Remand.
I. Background
This matter involves claims brought by Caywood on behalf of herself individually and as
the Personal Representative of the Estate of James Caywood, her deceased husband, relating to a
severe anoxic brain injury that led to James Caywood’s death.
Pursuant to the Indiana Medical Malpractice Act (“MMA”), Indiana Code § 34-18-1-1 et
seq., Caywood submitted a Proposed Complaint against Defendant Anonymous Hospital (the
“Hospital”) to the Indiana Department of Insurance (“IDOI”) on January 6, 2011. In the
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This Order is issued pursuant to Fed. R. Civ. P. 72(a) because the motions addressed herein are
not among those motions excepted from determination by a Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(A).

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Proposed Complaint, which was not filed in court, Caywood revealed the identity of the
Hospital. The MMA requires an IDOI medical review panel to evaluate and render an opinion
on such claims before an action against the health care provider can be commenced in such
defendant’s name. To date, a panel has not yet been formed.
Caywood then filed a Complaint in the Marion Superior Court on August 24, 2011
against Defendant CR Bard, Inc. d/b/a Bard Access Systems (“Bard”), naming the Hospital as
co-Defendant “Anonymous Hospital,” as allowed by the MMA. Bard, a New Jersey corporation
with its principal place of business in Murray Hill, New Jersey, is the manufacturer of the
catheter from which James Caywood was initially found bleeding profusely, causing him to lose
large amounts of blood before going into cardiac arrest. At the time of filing, Caywood was a
resident of Fort Wayne, Indiana, and she was and remains a citizen of Indiana. On September
28, 2011, Defendant Bard removed the matter to this Court based upon diversity of citizenship
under 28 U.S.C. § 1332.
On November 28, 2011, Caywood filed a Motion to Remand based on lack of diversity of
citizenship. As a part of this filing, Caywood attached a number of documents as exhibits that
identify the Hospital, including the Proposed Complaint submitted to the IDOI and James
Caywood’s medical records. These documents clearly identify the Hospital as an Indiana
corporation with its principal place of business in Indianapolis, Indiana. As such, Caywood
argues that complete diversity of citizenship does not exist, divesting this Court of subject matter
jurisdiction, and the proper recourse is to remand the matter back to the Marion County Superior
Court.

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II. Discussion
Caywood argues that, since she and one of the defendants are both citizens of Indiana,
this Court has no subject matter jurisdiction because diversity of citizenship does not exist. In
response, Defendants Bard and the Hospital argue that the Court may not consider the identity of
the Hospital due to the protection awarded it under the anonymity provision of the MMA. [Dkts.
28 and 30].
A. A Known, Anonymous Party Will not be Disregarded in a Decision to Remand Based on
Lack of Diversity Citizenship
When a plaintiff files a civil action in state court over which the district courts have
original jurisdiction, a defendant has the right to remove the action to the district court. 28
U.S.C. § 1441(a). Additionally, 28 U.S.C. § 1441(b)(1) provides that “[i]n determining whether
a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the
citizenship of defendants sued under fictitious names shall be disregarded.” 28 U.S.C. §
1441(b)(1) (emphasis added).
“[T]he fictitious defendant in diversity citizenship cases” is a party “whom the plaintiff
knows to exist, or believes to exist, but can’t identify.” 28 U.S.C.A § 1441 (Commentary of
1988 and 1990 Revisions of Section 1441: The 1988 Amendment of Subdivision (a) (emphasis
added)). Before these revisions, a defendant with the burden of establishing jurisdiction to
remove a case to federal court within thirty days after being served was unable to remove to
federal court because it was impossible to affirmatively establish the diverse citizenship of the
unidentified party. Id. Instead, 28 U.S.C. § 1441(b)(1) now allows such a defendant to disregard
the citizenship of unidentified defendants in its determination of the removability of an action,
and when the identity of a non-diverse defendant becomes known, the federal court may then
remand for lack of jurisdiction. Id.

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Bard argues that the plain language of § 1441 expressly precludes the Court from taking
into account the Hospital’s citizenship in reviewing diversity. [Dkt. 30 at 2]. However, Bard
mistakenly interprets “fictitious” to be synonymous with “anonymous.” Merriam Webster
defines “fictitious” as “of, relating to, or characteristic of fiction: imaginary,” which is further
defined as “lacking factual reality.” Merriam Webster’s Collegiate Dictionary 465, 619
(Fredrick C. Mish et al. eds., 11th ed. 2009), available at http://www.merriam-webster.com/. As
noted above, the “fictitious” party referenced in 28 U.S.C. § 1441(b)(1) is more precisely
identified as an individual or entity “whom the plaintiff knows to exist, or believes to exist, but
can’t identify.” 28 U.S.C.A § 1441 (Commentary of 1988 and 1990 Revisions of Section 1441:
The 1988 Amendment of Subdivision (a) (emphasis added)).
Defendant Hospital is not fictitious; it is anonymous. Due to the policy interest in
protecting the reputation of medical practitioners, the MMA requires litigants in Indiana courts to
proceed anonymously against health care providers until the IDOI’s medical review panel has
made a finding regarding the alleged medical malpractice. See Ind. Code 34-18-8-7(a)(1); Kho
v. Pennington, 875 N.E.2d 208, 209–216 (Ind. 2007). In this matter, the Hospital does not lack a
factual reality, as both this Court and Bard are fully aware of the name and citizenship of the
Hospital. [Dkt. 33 at 5.] In fact, the Hospital is represented by counsel, who has appeared and
filed papers in this matter. Thus, the plain language of § 1441 does not settle the matter in favor
of Bard.
Bard further asserts that Indiana federal district court cases discussing removal are
applicable here. The Court disagrees. It is true that a number of Indiana district court cases have
held that removal is proper where health care providers have been named anonymously
according to the MMA. See, e.g., Beaty v. I-Flow Corp., 1:09-CV-383-WTL-TAB, 2009 WL

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1689395 (S.D. Ind. June 16, 2009) (plaintiff opposed removal but had not yet named the doctor
in any manner); Thornburg v. Stryker Corp., 105-CV-1378-RLY-TAB, 2006 WL 1843351 (S.D.
Ind. June 29, 2006) (holding that removal was proper). However, the issue at hand is not one of
removal—this Court does not deny that Defendant Bard acted properly within its right to remove
the case. The proper question regards the propriety of this Court maintaining this case in the
known absence of subject matter jurisdiction.
The Seventh Circuit has been hesitant to permit anonymity against the “strong
presumption of public disclosure.” Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 545–47 (7th
Cir. 2002). However, the Court sees no reason not to recognize and give effect to the public
policy reasons underlying the MMA and allow such parties to maintain their anonymity during
the pendency of the IDOI proceeding.1 However, notwithstanding this temporary public
anonymity, the Hospital is not “fictitious” since the Hospital is identifiable and has been active in
this case, and its identity can and must be taken into account in determining the existence of
diversity.
That being said, the Court wishes to be clear that it is not questioning the propriety of
Bard’s initial removal of this matter. The Court is aware of no evidence that Bard knew the
identity of the Hospital at the time of removal. In light of that, Bard was entirely correct to rely

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Plaintiff Caywood argues that the motion to remand should be granted because the MMA is a
procedural statute, a supplement to the substantive tort law that governs medical malpractice
cases. [Dkt. 33 at 8–14]. According to the Erie doctrine, Caywood continues, Federal Rule of
Civil Procedure 10(a), requiring that all parties be named, overrides the conflicting procedural
state law, the anonymity provision of the MMA. Rule 10(a) requires the caption of the
complaint to “name all the parties.” Fed. R. Civ. P. 10(a). While Caywood argues that this is in
direct contradiction to the MMA, the anonymity provision allows the Hospital to be named using
a pseudonym, here “Anonymous Hospital.” Thus, there is no need to address any conflicts of
laws questions in this matter. Although it is not public information, the identity of the Hospital
is now known to the Court, which is sufficient to allow the Court to determine its subject matter
jurisdiction.

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upon 28 U.S.C. § 1441(b)(1) in removing the case, because, from Bard’s perspective, the
Hospital truly was a fictitious party. However, once a case is removed, procedures are in place
to clarify the jurisdictional issue.
Local Rule 81-1(a) requires a notice of removal to include, among other things, “a listing
of the citizenship of each party.” As noted, a removing party, such as Bard, that is unaware of
the actual identity of an anonymous party may disregard that party for purposes of removal
pursuant to 28 U.S.C. § 1441(b)(1). Thereafter, Local Rule 81-1(b) requires any plaintiff, who
has not filed a motion to remand, to respond within thirty days as to the citizenship of the parties
and the amount in controversy. It is at this point that the Plaintiff is required to articulate the
citizenship of a known, but anonymous, party so as to allow the Court to properly examine its
subject matter jurisdiction. Such can be accomplished, as it was in this case, without a public
disclosure of the identity of the anonymous party
B. If, at Any Time, the District Court Lacks Jurisdiction, the Case Shall be Remanded
When complete diversity exists, the district court has subject matter jurisdiction. 28
U.S.C. § 1332(a). However, if the plaintiff(s) and defendant(s) in a case are not “citizens of
different States,” jurisdiction cannot be based upon 28 U.S.C. § 1332. Furthermore, “[i]f at any
time before final judgment it appears that the district court lacks subject matter jurisdiction, the
case shall be remanded.” 28 U.S.C. § 1447(c) (emphasis added). As such, if an unknown party
becomes known, and complete diversity is destroyed, the Court must remand the case to state
court.
In this matter, Bard was only allowed thirty days to remove the case to federal court. 28
U.S.C. § 1446(a). Since the Complaint filed in the state court did not contain any reference to
the identity of the Hospital, Bard properly exercised its right to remove. See 28 U.S.C. §

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1441(a). However, now that all of the parties and the Court are aware that the Hospital is an
Indiana corporation with its principal place of business in Indianapolis, Indiana, complete
diversity no longer exists, and this Court lacks subject matter jurisdiction over this matter. While
the Seventh Circuit has not ruled on this nuanced issue, I find the reasoning of the First and Fifth
Circuit Courts of Appeals persuasive:
For the first time, we address the same issue as did the First Circuit in Casas:
“whether [ ] substitution [for a John Doe defendant], which unquestionably
destroyed complete diversity, [could] also defeat[ ] federal subject matter
jurisdiction.” Casas, 42 F.3d at 673. Finding the First Circuit's reasoning
persuasive, we hold that § 1441(a) applies only to John Doe defendants as such,
not to subsequently named parties identifying one of those fictitious defendants.
Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 475–77 (5th Cir. 2001) (holding that remand
was proper according to 28 U.S.C. § 1447). Thus, since the Hospital has now unquestionably
been identified as a citizen of the same State as the Plaintiff, federal subject matter jurisdiction
had been destroyed, and this Court must remand the case. 28 U.S.C. § 1447(c).
C. Federal Courts are Obligated to Give Regard to Limits on Their Jurisdiction
The jurisdiction of federal courts is fundamentally limited, through both the Constitution
and by statute. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). As such,
“[t]he limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must
be neither disregarded nor evaded.” Id. The applicable limitation in this case is the statutory
jurisdictional limitation requiring that, in a case in federal court based on diversity, there must be
“complete” diversity between each of the defendants and the plaintiff. See 28 U.S.C. § 1332.
In this matter, Defendants argue that the Hospital is a fictitious party and believe this to
be a principled reason to proceed in this Court while the IDOI panel meets. However, such
reading is an evasion of the diversity limitation on federal jurisdiction. Defendant Hospital is an
anonymous, not fictitious, party, so there is no requirement to ignore its citizenship when

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examining the subject matter jurisdiction of the Court. To do so would be nothing more than a
bald fiction and would constitute a flagrant violation of this Court’s duty to examine the basis for
its jurisdiction and remand or dismiss those cases where such jurisdiction is found not to exist.
That determination is squarely before this Court and cannot be ignored simply because some
provision of Indiana law may authorize the Hospital to be sued anonymously. As such, the
proper, and in fact the only recourse is to remand this case due to a lack of subject matter
jurisdiction. This solution is consistent with the “fundamental precept that federal courts are
courts of limited jurisdiction.” Kroger, 437 U.S. at 374.
III. Conclusion
For the foregoing reasons, Caywood’s Motion to Remand [Dkt. 17] is GRANTED.
Because no evidence has been presented to demonstrate that Bard was aware of the lack of
diversity at the time of removal, the Court finds that no award of costs or expenses pursuant to
28 U.S.C. § 1447(c) is warranted in this case.
Any objections to the Magistrate Judge's Order shall be filed with the Clerk in
accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(a), and failure to file timely
objections within fourteen days after service shall constitute a waiver of subsequent review
absent a showing of good cause for such failure.

Dated: 03/29/2012

Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

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Distribution List:
David J. Cooner
MCCARTER & ENGLISH, LLP
[e-mail]
Amanda C. Couture
DELANEY & DELANEY
[e-mail]
Kathleen Ann DeLaney
DELANEY & DELANEY LLC
[e-mail]
Jill M. Emerson
CLINE FARRELL CHRISTIE LEE & CARESS
[e-mail]
Kathy Ann Lee
CLINE FARRELL CHRISTIE LEE & CARESS
[e-mail]
Sara F. Merin
MCCARTER & ENGLISH, LLP
[e-mail]
Elizabeth Ann Schuerman
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Robert G. Weddle
BOSE MCKINNEY & EVANS, LLP
[e-mail]

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