JOHNSON et al v. GLOBUS MEDICAL, INC. et al

Filing 31

REPORT AND RECOMMENDATIONS re 29 MOTION to Compel ; For the aforementioned reasons, the Court should order that the matter be REMANDED to state court for all further proceedings. Because no evidence has been presented to demonstrate that Glob us 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 for improper removal. Any objections to the Magistrate Judge's Report and Recomm endation shall be filed with the Clerk in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), and failure to timely file 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 10/16/2014.(CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LARRY JOHNSON,
CHRISTINE O. JOHNSON,

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Plaintiffs,
vs.
GLOBUS MEDICAL, INC.,
ANONYMOUS PHYSICIAN (JKC),
Defendants.

No. 1:14-cv-00730-SEB-MJD

REPORT AND RECOMMENDATION
Before the Court is Defendant’s Motion to Compel Production of Discovery. [Dkt. 29.]
However, before that issue may be addressed, the Court must first address whether it has subject
matter jurisdiction over this case. Accordingly, the Magistrate Judge recommends that the
matter be REMANDED to state court for lack of subject matter jurisdiction.
I. Background
On April 7, 2014, Larry and Christine Johnson (“Plaintiffs”) filed their Complaint for
Damages in the Marion County Superior Court alleging products liability against Defendant
Globus Medical, Inc. (“Globus”) and medical malpractice against Defendant Anonymous
Physician (JKC) (“Physician”). [Dkt. 1-1.] One month later, Globus removed the case to this
Court on account of the Physician’s anonymity and the completely diversity between Plaintiffs
and Globus. [Dkt. 1.] However, on May 29, 2014 Physician’s counsel filed a notice of
appearance before the Court, and the Magistrate Judge issued an Order to Show Cause why, if

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the Physician is a resident of Indiana, the case should not be remanded for lack of subject matter
jurisdiction. [Dkt. 13.] In the Physician’s Verified Response to the Order to Show Cause, his or
her counsel, Brett T. Clayton, affirmed and stated that “Anonymous Physician (JKC) is a citizen
of the State of Indiana.” [Dkt. 14.] Despite this affirmation of lack of complete diversity,
Globus filed a Response to the Court’s Order to Show Cause, asserting that the Physician’s
residency should still be ignored upon consideration of the Court’s jurisdiction over the matter.
[Dkt. 15.] Globus has now moved to compel the production of discovery [Dkt. 29], but before
ruling on the motion the Court must first address whether it has jurisdiction over the matter.
II. Discussion
“It is well settled that the jurisdiction of the federal courts is limited; no presumption of
federal jurisdiction exists.” Preston v. Purtell, 410 F.2d 234, 236 (7th Cir. 1969). Accordingly,
it is the district court’s “nondelegable duty to police the limits of federal jurisdiction with
meticulous care.” Mkt. St. Associates Ltd. P'ship v. Frey, 941 F.2d 588, 590 (7th Cir. 1991).
When complete diversity exists among the parties and the amount in controversy exceeds
$75,000, the district court has subject matter jurisdiction over a case even if federal law is not in
question. 28 U.S.C. § 1332(a). However, if any one plaintiff and any one defendant are citizens
of the same State, jurisdiction cannot be based upon 28 U.S.C. § 1332, and “[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).
Globus first asserts that federal jurisdiction is appropriate pursuant to the plain language
of Title 28 of the United States Code, which declares 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. §
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1441(b).1 The commentary on the 1988 revisions adding the reference to fictitious parties
clarifies that a “fictitious defendant” is an “unknown defendant,” such as a John Doe. In other
words, “the 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)). Here, the Plaintiffs can indeed identify the Physician, but are currently prohibited from
using his or her name in court filings pursuant to Indiana’s Medical Malpractice Act (MMA),
which protects the Physician’s identity until the medical review panel can make a finding
regarding the alleged malpractice. See Kho v. Pennington, 875 N.E.2d 208, 209-16 (Ind. 2007).
Thus, the Physician is not an unknown “fictitious” party as contemplated when the language of §
1441 was amended, and Plaintiffs’ use of the term “Anonymous” in naming the Physician in this
lawsuit does not support Globus’s contention that the case should not be remanded.
Second, Globus reiterates that “Plaintiffs have used a fictitious name” pursuant of the
requirements of the MMA and that such naming falls under the exception from diversity
jurisdiction consideration delineated in § 1441. Again, Globus is confusing the anonymous
naming of a known defendant for confidentiality purposes with the naming of a fictitious
defendant who has yet to be identified and may not even exist. The terms of the MMA are clear:
“a claimant may commence an action in court for malpractice at the same time the claimant's
proposed complaint is being considered by a medical review panel,” but the “complaint filed in
court may not contain any information that would allow a third party to identify the
defendant.” Ind. Code. 34-18-8-7 (emphasis added). The clear purpose of this provision is to
protect the reputation of the accused medical professional until the medical review panel has the

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Globus actually attributes a similar quote to 28 U.S.C. § 1441(a), but this is incorrect. The relevant language now
resides in subsection (b).

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chance to review the allegations. See Kho v. Pennington, 875 N.E.2d 208, 215 (Ind. 2007). This
purpose of protection of reputation is entirely distinguishable from that of the “fictitious
defendant” exception to § 1441—that it would be unfair to place the burden on the known
defendants to determine the residency of any unknown defendants upon possible removal from
state court when the plaintiff him or herself was not able to make that determination before filing
the suit. 28 U.S.C.A § 1441 (Commentary of 1988 and 1990 Revisions of Section 1441: The
1988 Amendment of Subdivision (a)). It is entirely possible for a plaintiff to know the identity
of a medical defendant while still naming him or her as anonymous pursuant to the MMA, and
the terms of the MMA do not prevent the plaintiff or any other party from identifying the
residency of such a medical defendant, so long as the identification would not allow a third party
to identify the defendant. Thus, Globus’s assertion that the MMA’s anonymity requirement
mandates that all MMA medical defendants’ residency must be ignored for the purposes of
evaluating diversity jurisdiction pursuant to § 1441 does not hold water.
Globus then walks through the reasoning in Thornburg v. Stryker Corporation, also of
the Southern District of Indiana, in support of its interpretations of the MMA and § 1441, which
the Court has addressed above. [Dkt. 15 at 3-4.] The Court acknowledges that, in Thornburg,
the court noted that “the Court may not consider the anonymous Indiana Defendants' citizenship
to assess the existence of diversity jurisdiction.” 1:05-CV-1378-RLY-TAB, 2006 WL 211952
(S.D. Ind. Jan. 27, 2006). Since then, however, the court has found that a known, albeit
anonymous, defendant cannot be disregarded as “fictitious” when the nondiverse citizenship is
known to the court, remanding the matters with MMA claims to state court. See Miller v.
Anonymous Corp. A, 1:12-CV-562-TWP-DML, 2012 WL 3236304 (S.D. Ind. Aug. 7, 2012);
Caywood v. Anonymous Hosp., 856 F. Supp. 2d 1001 (S.D. Ind. 2012) aff'd, 1:11-CV-1313-

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TWP-MJD, 2012 WL 3264572 (S.D. Ind. Aug. 9, 2012). Recently, Judge DeGuilio of the
Northern District of Indiana did follow Thornburg when presented with a similar argument, but
in that case the defendants in question, Defendants John Does 1-10, were truly unknown.
Kennedy v. Schneider Elec., 2:12-CV-122-JD, 2013 WL 683360 (N.D. Ind. Feb. 22, 2013).
Indeed, when “the actual identities of the anonymous hospital and doctor are not known or
before the Court,” remand is not appropriate. Ossim v. Anulex Technologies, Inc., 1:14-CV00254-TWP-DKL, 2014 WL 2876760 (S.D. Ind. June 24, 2014) reconsideration denied, 1:14CV-00254-TWP-DKL, 2014 WL 4437501 (S.D. Ind. Sept. 9, 2014).
The recent case law reviewed above clearly distinguishes matters where the citizenship of
the anonymous defendant is known, as is the case here, from cases where the defendant is truly
unknown to both the Court and to the parties. Here, not only is the identity of the Physician
known to the parties, but counsel for the Physician has filed an appearance on his or her behalf.
Further, in response to the Court’s Order to Show Cause, the Physician’s counsel certified that
the Physician is a resident of the State of Indiana. [Dkt. 14.] Because the Plaintiffs are also
residents of the State of Indiana [Dkt. 1-1 at 1], it is abundantly clear to the Court that diversity
jurisdiction does not exist. Accordingly, subject-matter jurisdiction is lacking, and the Court,
pursuant to federal law, must remand the case to state court. 28 U.S.C. § 1447(c).
In a final effort to salvage federal jurisdiction, 2 Globus makes an argument of equity. In
the off chance that Plaintiffs dismiss or settle their claims against Anonymous Physician (JKC),
Globus indicates that complete diversity would exist as between Globus and the Plaintiffs but by

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Defendant Globus additionally makes the argument that it would be “unfair” to remand this matter because a
substantially similar matter remains before the Southern District of Indiana. [Dkt. 15 at 4-5 (referring to Cause No.
1:13-cv-1275-SEB-TAB).] However, that matter is not before this Magistrate Judge, and therefore it is not within
the power of the undersigned to recommend a remand should the alleged similarity between the two cases extend to
the lack of complete diversity, as required by 28 U.S.C. § 1447(c).

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that time the statute of limitations for removal to federal court would likely have run. [Dkt. 15 at
4.] Although Globus asserts that this hypothetical situation is cause for maintaining federal
jurisdiction, the Court is bound by its duty to “police the limits of federal jurisdiction with
meticulous care.” Frey, 941 F.2d at 590. This strict standard does not permit the Court to carve
such an exception to its duty to remand the case pursuant to § 1447, and the Court will abide by
its duty to recommend a REMAND.
III. Conclusion
For the aforementioned reasons, the Court should order that the matter be REMANDED
to state court for all further proceedings. Because no evidence has been presented to demonstrate
that Globus 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 for improper removal.
Any objections to the Magistrate Judge’s Report and Recommendation shall be filed with the
Clerk in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), and failure to timely
file objections within fourteen days after service shall constitute a waiver of subsequent review
absent a showing of good cause for such failure.
Date: 10/16/2014

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Distribution:
Brett T. Clayton
EICHHORN & EICHHORN LLP
[e-mail]
Michael Eugene Simmons
HUME SMITH GEDDES GREEN & SIMMONS
[e-mail]
Dina M. Cox
LEWIS & WAGNER
[e-mail]
Janelle P. Kilies
LEWIS WAGNER LLP
[e-mail]
J Killies
LEWIS WAGNER, LLP
501 Indiana Avenue, Suite 200
Indianapolis, In 46202

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