Atoe v. Orthopediatric US Distribution Corp et al
MEMORANDUM ORDER (Compliance Deadline set for 12/7/2020 for plaintiff to file a written challenge re: citizenship, Second Compliance Deadline set for 12/14/2020 to file a motion to dismiss Dr McClary.) Plaintiff directed to file evidence of service on Orthopediatrics Corp by 1/7/2021. Signed by Magistrate Judge Mark L Hornsby on 11/18/2020. (crt,Jones, P)
Case 5:20-cv-01324-EEF-MLH Document 7 Filed 11/19/20 Page 1 of 3 PageID #: 71
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 20-cv-1324
JUDGE ELIZABETH E. FOOTE
ORTHOPEDIATRICS US DISTRIBUTION
CORP, ET AL
MAGISTRATE JUDGE HORNSBY
Tina Atoe, individually and on behalf of her minor child, filed suit in a Louisiana
state court against several defendants. She alleged that her child received orthopedic
surgery at the Shriner’s Hospital for Children that included the installation of an eight-plate
device. Plaintiff alleged that the device failed due to defects and that additional surgery
and rehabilitation are required.
Orthopediatrics US Distribution Corp. removed the case based on an assertion of
diversity jurisdiction, which puts the burden on Orthopediatrics to allege the supporting
facts with specificity. The court has an obligation to review the basis for subject matter
jurisdiction, even if a party does not file a challenge. Set forth below are some comments
on jurisdiction and the need to serve a defendant.
The notice of removal alleges that Tina Atoe is domiciled in Texas and, therefore,
a citizen of that state. Atoe filed suit individually and on behalf of her minor child, so the
citizenship of the child must also be known. That is because the legal representative of an
infant is deemed to be a citizen only of the same state as the infant. 28 U.S.C. § 1332(c)(2).
The child is likely a citizen of the same state as his mother, so the court will assume that
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the child is also a citizen of Texas unless Plaintiff or any other interested party files a
written challenge to that assumption no later than December 7, 2020.
The notice of removal alleges that defendant Orthofix, Inc. is incorporated in
Minnesota and has its principal place of business in Texas. That destroys diversity on its
face because at least one plaintiff is also a citizen of Texas, but Plaintiff voluntarily
dismissed Orthofix, Inc. from the litigation on September 15, 2020. Orthopediatrics
removed the case, presumably based on the voluntary-involuntary rule, less than 30 days
later.1 Plaintiff did not file a motion to remand within 30 days afterward, so any claim of
untimeliness or other procedural defect in the removal was waived. 28 U.S.C. § 1447(c).
Dr. Kalan McClary is alleged to be a citizen of Louisiana. She is diverse in
citizenship from Plaintiff, but the forum-defendant rule of 28 U.S.C. § 1441(b)(2) provides
that a case may not be removed based on diversity jurisdiction if any of the parties in
interest properly joined and served as a defendant is a citizen of the state in which the action
is brought. Orthopediatrics argued in its notice of removal that Dr. McClary’s citizenship
should be ignored because the claims against her are subject to medical review panel
proceedings that require exhaustion and make her improperly joined. See Flagg v. Stryker
Corporation, 819 F.3d 132 (5th Cir. 2016) (en banc). Plaintiff did not file a timely motion
to remand that challenged this assertion. The forum-defendant rule is procedural rather
The voluntary-involuntary rule is a jurisprudential doctrine that provides that a case not
originally removable may become so by the voluntary dismissal of a nondiverse defendant
whose presence precluded removal. Phillips v. Unijax, 625 F.2d 54, 56 (5th Cir.1980); Weems
v.. Louis Dreyfus Corp., 380 F.2d 545, 546–548 (5th Cir.1967); Rasbury v. USAA General
Indem., 2015 WL 1906205 (W.D. La. 2015).
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than jurisdictional, In re 1994 Exxon Chem. Fire, 558 F.3d 378, 391-94 (5th Cir. 2009), so
the lack of a timely motion to remand waived any objection based on that issue.
Orthopediatrics stated in its notice of removal that the defense would file a motion
to dismiss the claims against Dr. McClary as premature, and the defense is directed to do
so by December 14, 2020. If the medical review panel situation is as described in the
notice of removal, the parties should be able to agree to dismiss the claims against Dr.
McClary without prejudice until such time as the review panel process is completed.
Orthopediatrics Corp., alleged to be a citizen of Delaware and Indiana, is the final
defendant. Its citizenship is diverse. The removing defendant represents that Plaintiff has
not served Orthopediatrics Corp. Plaintiff is directed to promptly file evidence of service
on Orthopediatrics Corp, and she is reminded of the obligation to make service within 90
days of removal, which will be January 7, 2021. Fed. R. Civ. Pro. 4(m); McAfee v. U.S.
Department of Veterans Affairs, 2020 WL 1046111 (S.D. Tex. 2020).
Based on the allegations in the notice of removal, it appears that there is complete
diversity between the parties who remained in this case at the time of removal. The court
finds that subject matter jurisdiction exists pursuant to 28 U.S.C. § 1332. This finding is
preliminary and may be reconsidered sua sponte or on appropriate motion
THUS DONE AND SIGNED in Shreveport, Louisiana, this 18th day of November,
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