Larson v. Abbott Laboratories et al

Filing 47

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 11/5/13. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KAREN LARSON,
Plaintiff,
v.

Civil Action No. ELH-13-00554

ABBOTT LABORATORIES, et al.,
Defendants.
MEMORANDUM OPINION
Karen Larson, as guardian for her brother, Kraig Larson, sued several defendants in the
Circuit Court for Baltimore City, alleging that Mr. Larson suffered severe and permanent brain
damage proximately caused by his use of the prescription drug Adalimumab, commonly known
as HUMIRA. See Complaint, ECF 2. According to Ms. Larson, HUMIRA increases the risk of
severe injury or death from infection when taken by individuals with immunodeficiency, such as
human immunodeficiency virus (“HIV”). Id. ¶ 14. Mr. Larson, a former space engineer, is HIV
positive (“HIV+”), and the drug was prescribed to him for the treatment of his psoriasis.1 Id. ¶¶
4, 38.
In particular, Ms. Larson sued Abbott Laboratories (“Abbott”), the manufacturer of
HUMIRA, and Harrison & Star (“H&S”), a healthcare marketing agency that marketed
HUMIRA from 2005 through 2009 (collectively, the “Pharmaceutical Defendants”). Id. ¶ 5–7.
She also sued Monte S. Meltzer, M.D., who prescribed HUMIRA in 2010 to Mr. Larson, and
Monte S. Meltzer, M.D., LLC; the Union Memorial Hospital in Baltimore, at which Dr. Meltzer

1

Psoriasis is a condition that causes skin cells to build up rapidly on the surface of the
skin, creating itchy, red scales. Complaint ¶ 41.

worked; Dr. Ellen Yang, M.D., an infectious disease physician who monitored Mr. Larson’s
“HIV” condition; and Annapolis Infectious Disease Associates, L.L.P., for whom Dr. Yang
worked (collectively, the “Medical Defendants”). Id. ¶ 92.
As to Abbott, plaintiff alleges strict liability failure to warn, negligent failure to warn, and
breach of implied warranties. Id. ¶¶ 62–76. She also seeks to recover punitive damages. Id. ¶¶
77–78. As to both Abbott and H&S, plaintiff alleges common law misrepresentation and
violations of Maryland’s Consumer Protection Act, Md. Code (2012), § 13-301 et seq. of the
Commercial Law Article. Id. ¶¶ 79–90. With respect to the Medical Defendants, Ms. Larson
alleges medical malpractice, negligence, and lack of informed consent. Id. ¶¶ 91–115.
As discussed, infra, Ms. Larson had previously sued the Medical Defendants, but she
subsequently dismissed that suit.2 In a subsequent suit, filed on January 2, 2013, she added the
Pharmaceutical Defendants. On February 20, 2013, Abbott filed a Notice of Removal, asserting
that this Court has federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction
under 28 U.S.C. § 1332. ECF 1. Because I was unable to determine from the Notice of Removal
whether this Court has subject matter jurisdiction, I directed the parties to brief the matter. ECF
24. The Pharmaceutical Defendants argue in their Memorandum of Law (“Memo,” ECF 30) that
this Court has both diversity jurisdiction and federal question jurisdiction. In their Response
(“Med. Resp.,” ECF 32), the Medical Defendants assert that this Court has federal question
jurisdiction, but not diversity jurisdiction. Plaintiff filed a Motion to Remand (“Larson Mot.,”
2

Union Memorial Health Services, Inc. was a defendant in the prior suit, but is not
named as a defendant in the present suit.
-2-

ECF 27), accompanied by a Memorandum (ECF 27-1), and a Response in Support of Remand
(“Larson Resp.,” ECF 33), arguing that this Court lacks subject matter jurisdiction. No hearing
is necessary to resolve the matter. See Local Rule 105.6. For the reasons that follow, I conclude
that this Court lacks subject matter jurisdiction. Therefore, I will remand the case to the Circuit
Court for Baltimore City.
Factual Summary3
Testing and Marketing of HUMIRA
HUMIRA is an immunosuppressant and tumor necrosis factor inhibitor (“TNF
Inhibitor”)4 manufactured by Abbott. Complaint ¶ 11. Following a series of clinical trials,
which did not include HIV+ individuals, the Food & Drug Administration (“FDA”) approved
HUMIRA in December 2002 for treatment of rheumatoid arthritis.

Id. ¶ 12, 13.

Abbott

launched HUMIRA in 2003. Id. ¶ 15. From 2005 until early 2009, HUMIRA was marketed by
H&S. Id. ¶ 7.
Abbott ran additional clinical trials in 2003 and 2004 to establish the efficacy of
HUMIRA to treat some forms of psoriatic arthritis. Id. ¶ 16. However, these trials did not
include any known HIV+ patients. Id. According to Ms. Larson, the prescribing information
distributed by Abbott emphasized HUMIRA’s effectiveness while understating its risks. Id. In

3
4

The facts are gleaned largely from the Complaint.

TNF inhibitors suppress the body’s natural inflammatory response mechanism. Concise
Medical Dictionary, Oxford University Press (8th ed. 2010).
-3-

particular, the prescribing information did not warn that HUMIRA had not been proven safe for
use by HIV+ patients. Id.
In 2005, HUMIRA sales exceeded one billion dollars; in 2006 they exceeded two billion
dollars; and in 2007 they exceeded three billion dollars. Id. ¶ 19. Ms. Larson alleges that
throughout this time period, “Abbott over-promoted HUMIRA through misleading and deceptive
communications that were intended to stimulate demand for HUMIRA notwithstanding the
drug’s dangerous propensities, including to Kraig Larson and other members of the HIV+
community.” Id. ¶ 20.
On January 18, 2008, the FDA approved the use of HUMIRA for “‘adult patients with
moderate to severe chronic plaque psoriasis who are candidates for systemic therapy or
phototherapy, and when other systemic therapies are medically less appropriate.’” Id. ¶ 23. In
approving HUMIRA, the FDA noted that HUMIRA “‘poses a serious and significant public
health concern relating to increased risk for serious infections,’” and it required Abbott to
conduct continued testing to “‘assess the incidence of serious adverse events . . . .’” Id. ¶ 24.
In early 2008, the Pharmaceutical Defendants began promoting HUMIRA to
dermatologists as a treatment for psoriasis. Id. ¶¶ 25, 28. As part of its marketing efforts, Abbott
hired Dr. Meltzer to make presentations about HUMIRA to other dermatologists. Id. ¶ 36. In
making the presentations, Dr. Meltzer allegedly relied on information about HUMIRA provided
to him by Abbott. Id. Ms. Larson alleges, id. ¶ 37:
The information Abbott provided to Dr. Meltzer overall was inadequate
and misleading, resulting in Dr. Meltzer erroneously concluding that if an HIV+
-4-

patient with moderate to severe psoriasis that cannot be controlled by topical
medications or phototherapy reports both being under the care of an infectious
disease doctor and not being on an antiretroviral medication, it is acceptable and
reasonably safe to treat that patient with HUMIRA injections without consulting
his infectious disease doctor and without knowing his patient’s CD4[5] count of
viral load.
Abbott also placed an advertisement in the Post Meeting News, which was distributed in
February 2008 after the 66th annual meeting of the American Academy of Dermatology
(“AAD”). Id. ¶¶ 25, 27. The advertisement stated that HUMIRA had been approved for
“moderate to severe chronic plaque psoriasis,” but did not state that HUMIRA was only
approved for use “when other systemic therapies are medically less appropriate.” Id. ¶ 28; see
id. ¶ 23. Dr. Meltzer is a member of AAD, id. ¶ 26, and, according to Ms. Larson, he received a
copy of this advertisement and “trusted the truth of the message to his own detriment and the
detriment of Kraig Larson.” Id. ¶ 29.
The FDA sent a warning letter to Abbott on December 16, 2008, notifying Abbott that its
advertisement in the Post Meeting News was misleading. Id. ¶ 27. The warning letter stated, in
part, id. ¶ 28:
The AAD Post Meeting News Ad is misleading because it suggests that
HUMIRA is useful in a broader range of conditions or patients than has been
demonstrated by substantial evidence or substantial clinical experience. . . . This
claim misleadingly suggests that HUMIRA is approved for any patient with
moderate to severe chronic plaque psoriasis. . . . HUMIRA should only be
administered to patients who will be closely monitored and have regular followup visits with a physician. Due to the drug’s high risk profile, the use of
HUMIRA in plaque psoriasis needs to be very carefully considered, a message
not conveyed in the ad. . . .
5

CD4 cells are white blood cells that fight infection. Id. ¶ 40.
-5-

The overall effect of this presentation undermines the communication of
important risk information, minimizing the risks associated with HUMIRA and
misleadingly suggesting that HUMIRA is safer than has been demonstrated.
Soon after the FDA issued the warning letter, Abbott fired H&S. Id. ¶ 30.
Academic Research on HUMIRA
In her Complaint, Ms. Larson refers to several academic papers published between 2004
and 2009, which highlighted the risks posed to HIV+ individuals by TNF inhibitors. Ms. Larson
alleges that Abbott knew or should have known of such research. Id. ¶¶ 18, 22, 32, 34. Yet,
Abbott never included the papers’ conclusions in its communications about HUMIRA; never
included information about the risks of HUMIRA to HIV+ patients in its communications with
doctors; never indicated which patients, if any, were proper candidates for the use of HUMIRA;
never provided information as to the necessary precautions for use of the medication; and never
conducted clinical trials to determine whether HUMIRA was safe for HIV+ patients. Id.
For example, Ms. Larson identified a 2004 paper by Dee Dee Wu, M.D., of New York’s
Hospital for Special Surgery, in which Dr. Wu stated that “‘it is reasonable to conclude that antiTNF agents can be used with great caution in HIV+ patients with significant morbidity from a
TNF-a-mediated illness.’” Id. ¶ 17. On January 15, 2008, rheumatologist Jon Giles, M.D.
published a paper for the Johns Hopkins Arthritis Center that, among other things, pointed out
that clinical practice “‘dictated that [TNF inhibitor therapy] [should not be] initiated in patients
with a CD4 count below 200 or a viral load[6] greater than 60,000 copies.’” Id. ¶ 22 (second
alternation in Complaint); see also id. ¶ 21. In April 2009, dermatologist Jason J. Emer, M.D., of
6

The viral load measures the amount of active HIV in the blood. Id. ¶ 40.
-6-

the Mount Sinai School of Medicine in New York City, published a paper in which he
concluded: “‘TNF inhibition in HIV should be reserved for highly selected patients who have
failed other treatment options and are well controlled under antiretroviral therapy until the
potential for long-term effects . . . have been more clearly determined.’” Id. ¶ 31. The Medical
Board of the National Psoriasis Foundation published a paper in August 2009, titled “Psoriasis in
Patients with HIV Infection,” which stated that “‘patients with HIV-associated psoriasis should
be followed up carefully for potential adverse events with regular monitoring of the CD4 counts
and HIV viral loads, and regular consultation with an infectious disease specialist.’” Id. ¶ 33.

Mr. Larson’s Use of HUMIRA
Kraig Larson was diagnosed as HIV+ in 2004. Id. ¶ 38. He also has psoriasis. Id. ¶ 41.
From 2004 through 2010, Mr. Larson’s HIV status was monitored by Dr. Yang, an infectious
disease physician with Annapolis Infectious Disease Associates, LLP. Id. ¶ 39. On or about
October 21, 2009, Dr. Yang evaluated Mr. Larson and noted that his psoriasis had worsened
since the last time she examined him. Id. ¶ 42. However, she told Mr. Larson that his HIV
remained asymptomatic and stable. Id.
Dr. Yang conducted a blood draw on Mr. Larson on October 21, 2009.

Id. ¶ 43.

Subsequent blood tests indicated that Mr. Larson’s CD4 count was 266 and his viral load was
138,500 copies. Id. Previously, Mr. Larson’s lowest reported CD4 count was 434 and his
-7-

highest viral load was 53,143 copies. Id. According to plaintiff, it was “Dr. Yang’s duty to
promptly review and clinically correlate the change in Mr. Larson’s CD4 count and viral load in
November of 2009 and place Mr. Larson on antiretroviral medication.” Id. ¶ 44. However, Dr.
Yang did not place Mr. Larson on antiretroviral medication. Id.
In early 2010, Mr. Larson, who had seen advertisements promoting the use of HUMIRA
to treat psoriasis, made an appointment with Dr. Meltzer. Id. ¶ 45. Mr. Larson had “learned
about” Dr. Meltzer “via the MedStar Union Memorial Hospital website, at which site Union
Memorial Hospital represents that Dr. Meltzer’s specialty is dermatology.” Id. Dr. Meltzer’s
office is located on the campus of Union Memorial Hospital. Id. ¶ 49.
Dr. Meltzer learned from Mr. Larson that he (Larson) is HIV positive.

Id. ¶ 52.

Nonetheless, he prescribed HUMIRA. Id. ¶ 51. Dr. Meltzer did not inform Mr. Larson that
there was no evidence to establish the safety of HUMIRA for HIV+ patients. Plaintiff contends
that Dr. Meltzer “affirmatively misinformed [Mr. Larson] that HUMIRA was being safely used
by HIV+ patients.” Id. ¶ 53. According to plaintiff, Dr. Meltzer claims that he reviewed the
prescribing information provided by Abbott with Mr. Larson, but “the black box warning does
not discuss using HUMIRA on HIV+ patients, the other warnings and instructions make no
mention of this either, no contraindications were listed and the words HIV or AIDS do not even
appear in the document.” Id. ¶ 54.
Although HUMIRA contained a warning that it should not be used in patients with an
“active” infection, Dr. Meltzer concluded that Mr. Larson did not have an “active” infection. Id.
-8-

Plaintiff counters that Dr. Meltzer failed to consult with Dr. Yang or inquire about Mr. Larson’s
CD4 count or viral load before prescribing HUMIRA. Id. ¶¶ 51–52. To the contrary, she asserts
that Dr. Meltzer reassured Mr. Larson that the manufacturer “did not discourage use of
HUMIRA for HIV+ patients like Mr. Larson.” Id. ¶ 54.
Mr. Larson began taking HUMIRA via injection on January 15, 2010. Id. ¶ 56. In April
2010, Mr. Larson became “critically ill with progressive multifocal leukoencephalopathy
(“PML”),”7 id. ¶ 57, which led to “serious and permanent brain damage and other injuries.” Id.
¶ 4; see id. ¶ 59. As a result of his injuries, Mr. Larson “will never work again and requires 24hour round the clock medical care to perform the activities of daily living.” Id. ¶ 60. Ms. Larson
alleges that Mr. Larson’s injuries were caused by his use of HUMIRA. Id. ¶¶ 57, 59.

Procedural History
In October 2011, Ms. Larson filed suit against Dr. Meltzer in the Circuit Court for
Baltimore City, alleging medical malpractice and negligence. See 2011 Complaint, ECF 1-2 at
1. She amended her complaint in July 2012, adding defendants Union Memorial Hospital, Union
Memorial Health Services, Inc., Dr. Ellen Yang, and Annapolis Infectious Disease Associates,
LLP. See 2012 Amended Complaint, ECF 1-2 at 29. Ms. Larson also added a claim for “Lack
of Informed Consent.” Id. at 37. However, in November 2012, Ms. Larson and the defendants
7

“PML is an infection caused by the spread of the JC Virus (JCV), which progressively
attacks the white matter of the brain at multiple locations.” Id. ¶ 58. Plaintiff alleges that JVC is
usually harmless, but its use by someone with immunosuppression, such as from use of
HUMIRA, coupled with a CD4 count and viral load similar to that of Kraig Larson, can lead to
PML. Id.
-9-

filed a joint “Stipulation of Dismissal Without Prejudice.” See Stipulation, ECF 1-6; Case
Information, ECF 1-7 at 10.
Thereafter, in January 2013, Ms. Larson again filed suit in the Circuit Court for
Baltimore City. Complaint, ECF 2. In addition to re-asserting her claims against the Medical
Defendants, she added the Pharmaceutical Defendants and the claims against them that were
described above. Id. Thereafter, as noted, Abbott filed a Notice of Removal, claiming that
jurisdiction is proper under 28 U.S.C. § 1331 and 28 U.S.C. § 1332. ECF 1. At issue is the
question of whether this Court has subject matter jurisdiction over any of the claims against any
of the parties.
Discussion
Federal courts are courts of limited jurisdiction and “may not exercise jurisdiction absent
a statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). “A
court is to presume, therefore, that a case lies outside its limited jurisdiction unless and until
jurisdiction has been shown to be proper.” United States v. Poole, 531 F.3d 263, 274 (4th Cir.
2008) (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). Moreover, a
federal court has “an independent obligation to determine whether subject-matter jurisdiction
exists, even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010).
Congress has conferred jurisdiction on the federal courts in several ways. To provide a
federal forum for plaintiffs who seek to vindicate federal rights, Congress has conferred on the
district courts original jurisdiction over civil actions that arise under the Constitution, laws, or
- 10 -

treaties of the United States. Exxon Mobil Corp., 545 U.S. at 552; 28 U.S.C. § 1331. See also
U.S. Constitution Art. III, § 2 (“The Judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties made. . . .”)
Moreover, 28 U.S.C. § 1367(a) grants district courts “supplemental jurisdiction over all other
claims that are so related to claims in the action within [the courts’] original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution.”
In addition, “Congress . . . has granted district courts original jurisdiction in civil actions
between citizens of different States, between U.S. citizens and foreign citizens, or by foreign
states against U.S. citizens,” so long as the amount in controversy exceeds $75,000. Exxon
Mobil Corp., 545 U.S. at 552; see 28 U.S.C. § 1332. This so-called diversity jurisdiction
“requires complete diversity among parties, meaning that the citizenship of every plaintiff must
be different from the citizenship of every defendant.” Cent. W. Virginia Energy Co., Inc. v.
Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011); see Strawbridge v. Curtiss, 7
U.S. 267 (1806).
If a plaintiff files suit in state court with respect to a matter over which the “the district
courts of the United States have original jurisdiction,” the defendant generally may remove the
case to federal district court. 28 U.S.C. § 1441(a). With respect to cases removed to federal
court from state court, 28 U.S.C. § 1447(c) provides: “If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”

- 11 -

Ms. Larson is a citizen of New Jersey. Complaint ¶ 3. However, she brings this suit as
the legal representative of her brother, who is a citizen of Maryland. Id. Section 1332(c)(2) of
Title 28 provides: “[T]he legal representative of an infant or incompetent shall be deemed to be
a citizen only of the same State as the infant or incompetent.” Accordingly, the parties agree
that, for purposes of this suit, Ms. Larson is deemed a citizen of Maryland. Complaint ¶ 3;
Notice of Removal at 9 n.2. Abbott is a citizen of Illinois, H&S is a citizen of Delaware, Dr.
Meltzer is a citizen of the District of Columbia, and the rest of the Medical Defendants—like Ms.
Larson—are citizens of Maryland. Notice of Removal ¶¶ 21–22; Response to Standing Order,
ECF 25 ¶ 2.
Ms. Larson filed her suit in state court, asserting claims based not on federal law, but
rather under Maryland law. Nevertheless, the Pharmaceutical Defendants argue that this Court
has both federal question jurisdiction and diversity jurisdiction over the claims against them.
First, they argue that this Court has federal question jurisdiction under 28 U.S.C. § 1331, despite
plaintiff’s characterization of her claims, because “adjudicating the Plaintiff’s claim that Abbott
should have conducted clinical tests on HIV+ patients and included specific warnings in its
labels necessarily involves the interpretation and application of a wide range of important federal
statutes and rules.” Memo at 2 (emphasis in original). Second, they argue that this Court has
diversity jurisdiction under 28 U.S.C. § 1332, notwithstanding the lack of complete diversity
with regard to the Medical Defendants, because “Abbott and Harrison & Star were fraudulently
misjoined to the Medical Malpractice Defendants,” and thus the Court “may disregard for
- 12 -

jurisdictional purposes” the citizenship of the Medical Defendants. Id. (emphasis in original). I
address these contentions in turn.
A. Federal Question Jurisdiction
As noted, Congress has authorized the federal district courts to exercise original
jurisdiction in “all civil actions arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. The question is whether this case arises under federal law.
As the Supreme Court has observed, “There is no ‘single, precise definition’” of the
“concept” of federal question jurisdiction. Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804,
808 (1986) (citation omitted).

Notably, “‛the phrase “arising under” masks a welter of issues

regarding the interrelation of federal and State authority and the proper management of the
federal judicial system.’” Id. (citation omitted). “Most directly, a case arises under federal law
when federal law creates the cause of action asserted.” Gunn v. Minton, ___ U.S. ___, 133 S. Ct.
1059, 1064 (2013); see Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for
Southern Cal., 463 U.S. 1, 9 (1983).
The “‘presence or absence of federal-question jurisdiction is governed by the “wellpleaded complaint rule,” which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff’s properly pleaded complaint.’”

Rivet v.

Regions Bank of La., 522 U.S. 470, 475 (1998) (citation omitted). Accordingly, it is “settled law
that a case may not be removed to federal court on the basis of a federal defense, including the
defense of pre-emption, even if the defense is anticipated in the plaintiff’s complaint, and even if
- 13 -

both parties concede that the federal defense is the only question truly at issue.” Caterpillar Inc.
v. Williams, 482 U.S. 386, 393 (1987).
Nevertheless, in a “special and small” category of cases, state law claims can give rise to
federal question jurisdiction. Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677,
699 (2006). To fall within this category, the state law claims must “necessarily raise a stated
federal issue, actually disputed and substantial, which a federal forum may entertain without
disturbing any congressionally approved balance of federal and state judicial responsibilities.”
Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005). In Gunn,
the Supreme Court explained, 133 S. Ct. at 1065 (quoting Grable, 545 U.S. at 313–14):
[F]ederal jurisdiction over a state law claim will lie if a federal issue is: (1)
necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of
resolution in federal court without disrupting the federal-state balance approved
by Congress. Where all four of these requirements are met . . . jurisdiction is
proper because there is a “serious federal interest in claiming the advantages
thought to be inherent in a federal forum,” which can be vindicated without
disrupting Congress’s intended division of labor between state and federal courts.
Ms. Larson lodges a variety of claims against the Pharmaceutical Defendants based on
injuries her brother allegedly sustained from the use of HUMIRA. They are strict product
liability (Count I); negligence (Count II); breach of implied warranty (Count III); violation of the
Maryland Consumer Protection Act’s deceptive trade practice provisions (Count V); and
common law misrepresentation (Count VI). She also seeks punitive damages (Count IV). The
Pharmaceutical Defendants do not argue that federal law creates any of these causes of action.

- 14 -

Thus, the question is whether these claims fit within the “special and small” category of cases
described in Grable and Gunn.
In arguing that this case satisfies the first element of the Grable test, i.e., that it
“necessarily raises” a federal issue, the Pharmaceutical Defendants note that clinical testing and
drug labeling are heavily regulated by federal law. Therefore, according to the Pharmaceutical
Defendants, “resolving the question of whether Abbott improperly failed to conduct clinical
trials on a particular class of patients and whether its labels were inadequate as a result
necessarily raises a substantial federal issue.” Memo at 2.
In their Memorandum, the Pharmaceutical Defendants set out in detail the federal laws
and regulations governing the approval process and labeling requirements for new drugs. Memo
at 3–8. They also point to assorted portions of the Complaint to support their position, including
that plaintiff “seeks to second guess the regulatory process,” id. at 9; that plaintiff is “attacking
the federal regulatory process,” id.; that plaintiff alleges that Abbott violated FDA regulations,
id. at 10; that plaintiff “intends to attack . . . FDA’s decision to approve HUMIRA without
clinical trials on HIV+ patients,” id. at 13; and that plaintiff’s claim “requires the interpretation
and application of a plethora of federal laws and regulations that are administered by a federal
agency.” Id. at 11.
In response, plaintiff posits that the Pharmaceutical Defendants have mischaracterized
her Complaint. She observes that she has not alleged any violation of federal law, and contends
that her claims “do not require proof of any federal element.” Larson Resp. at 14; see id. at 11.
- 15 -

I have searched the Complaint in vain for the assaults on federal regulations described by
the Pharmaceutical Defendants.

In the Complaint, Ms. Larson does not question Abbott’s

compliance with federal regulations, nor does she challenge the wisdom of those regulations.
Although the Complaint alleges that Abbott’s clinical trials “did not include [HIV+]
individuals,” id. ¶ 13, it does not allege that the omission of HIV+ patients was contrary to
federal law. But see Memo at 10 (stating that “the plaintiff’s argument is that Abbott was
obligated to test its drug on [HIV+ individuals]”). Similarly, the Complaint alleges deficiencies
in the information disseminated for prescribing HUMIRA, such as understating HUMIRA’s
risks. See, e.g., Complaint ¶ 63(b). But, it does not allege that the information violated complex
federal drug labeling requirements, or that HUMIRA was mislabeled under federal law. See
PLIVA, Inc. v. Mensing, ___ U.S. ___, 131 S. Ct. 2567, 2572 (2011) (holding that plaintiff’s state
law tort claims against generic drug manufacturers were preempted by federal labeling
requirements); Caterpillar Inc., 482 U.S. 393. But see Wyeth v. Levine, 555 U.S. 555, 581
(2009) (holding that plaintiff’s common law claims against drug’s manufacturer were not
preempted by federal labeling requirements). And see Memo at 9 (asserting that “this Court will
have to determine whether the failure to include such a warning was improper . . . under federal
law and FDA regulations” (emphasis in original)). Indeed, the claimed bases of liability do not
refer to, incorporate, or otherwise mention any federal law or regulation. See Complaint ¶¶
63(a)–(l), 68(a)–(l), 74(a)–(l), 80, 81, 84–89. To the contrary, plaintiff seeks to impose liability
on the Pharmaceutical Defendants without regard to their compliance vel non with federal laws
- 16 -

and regulations. Nor is there a private right of action under the Federal Food, Drug, and
Cosmetic Act (“FDCA”), through which plaintiff could claim that HUMIRA’s labeling violated
federal regulations. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1139 (4th Cir. 1993); 21
U.S.C. § 337 (authorizing enforcement proceedings only by the United States and, under some
circumstances, by a state).
The Pharmaceutical Defendants suggest that the Complaint is that it alleges some kind of
cause-effect relationship between the Pharmaceutical Defendants’ failure to conduct clinical
studies with HIV+ patients and their subsequent failure to warn of the dangers HUMIRA posed
to HIV+ individuals. For example, the Pharmaceutical Defendants state that plaintiff “alleges
that without clinical tests, HUMIRA’s label could not adequately warn of the alleged ‘special
danger’ the drug poses to HIV+ patients.”

Memo at 8. Similarly, they state: “Plaintiff’s

Complaint asserts that Abbott failed to warn of the dangers associated with an HIV+ patient
taking HUMIRA because Abbott did not conduct clinical trials on HIV+ patients.” Id. at 3
(emphasis in original); see also id. at 2, 8–9, 12.
Although plaintiff alleges that HUMIRA’s prescribing information was inadequate under
State law, and complains that no clinical tests were performed on HIV+ individuals, she does not
claim that the prescribing information was inadequate because of the omission in clinical testing.
Rather, she provides at least two reasons why the Pharmaceutical Defendants “knew or should
have known” about HUMIRA’s risks, even without clinical testing. Specifically, Ms. Larson
alleges that Abbott “knew or should have known” of several academic papers discussing the
- 17 -

risks that TNF inhibitors pose to HIV+ individuals. E.g., id. ¶ 32. And, she points out that the
FDA’s approval letter of January 18, 2008, highlighted the dangers that HUMIRA poses to
patients, including “serious infections” and “autoimmune reactions.” Id. ¶ 24.
Simply put, the Complaint that the Pharmaceutical Defendants described is not the one
that Ms. Larson filed. Saying it repeatedly does not make it so. Cf. Lewis Carroll, The Hunting
of the Snark 3 (1876) (“I have said it thrice: What I tell you three times is true.”).
Moreover, the Pharmaceutical Defendants do not rely on the doctrine of complete
preemption, under which a federal district court may assert jurisdiction over a claim ostensibly
grounded in state law when that claim “is in reality based on federal law.” Beneficial Nat’l Bank
v. Anderson, 539 U.S. 1, 8 (2003). To remove an action on the basis of complete preemption, “a
removing defendant must show not only that the defendant’s state law claim is cognizable as a
federal claim, but also that Congress clearly intended the federal claim to ‘provide the exclusive
cause of action for claims of overwhelming national interest’” Barbour v. Intern. Union, 640
F.3d 599, 631 (4th Cir. 2011) (en banc) (emphasis in original) (citation and quotation marks
omitted), abrogated on other grounds by 28 U.S.C. § 1446(b)(2)(B).
Even assuming that the Pharmaceutical Defendants rely on preemption, the State court
has the power to determine the propriety of such an affirmative defense. It can resolve whether
plaintiff’s claims are preempted by federal regulations governing the approval and marketing of
prescription drugs. In any event, the fact that a claim may implicate the testing and marketing of
a pharmaceutical drug is not, by itself, sufficient to confer federal question jurisdiction.
- 18 -

Merrell Dow Pharmaceuticals, 478 U.S. 804, provides guidance.

There, two sets of

plaintiffs filed suit in state court, alleging, inter alia, that a pharmaceutical company was
negligent in its labeling of a prescription drug. Id. at 805–6. They claimed that the drug’s
labeling violated the FDCA, because the labeling did not provide adequate warnings, and they
sought to use that violation to establish a rebuttable presumption of negligence under state law.
Id. at 805-06. The company removed the case to federal court, arguing that plaintiff’s reliance
on the company’s alleged violation of a federal statute conferred federal-question jurisdiction on
the district court. Id. at 813–14.
The Supreme Court disagreed. It considered “whether the incorporation of a federal
standard in a state-law private action, when Congress has intended that there not be a federal
private action for violation of that federal standard, makes the action one ‘arising under the
Constitution, laws, or treaties of the United States[.]’” Id. at 805 (citation omitted). It concluded
that the state court actions against the drug manufacturer did not present a substantial federal
question so as to confer federal jurisdiction. Id. at 817. The Court reasoned that “a complaint
alleging a violation of a federal statute as an element of a state cause of action, when Congress
has determined that there should be no private, federal cause of action for the violation, does not
state a claim ‘arising under the Constitution, laws, or treaties of the United States.’” Id. at 817
(quoting 28 U.S.C. § 1331). Therefore, removal was improper.
Like the plaintiffs in Merrell Dow, Ms. Larson seeks to hold the Pharmaceutical
Defendants liable in connection with warnings that were allegedly inadequate. However, unlike
- 19 -

the plaintiffs in Merrell Dow, Ms. Larson does not allege a violation of the FDCA, nor does she
attempt to rely on a violation of the FDCA as an element of her claim. Indeed, she expressly
disclaims any allegation that the Pharmaceutical Defendants violated federal law. See Larson
Resp. at 9. If a claim expressly relying on an alleged violation of a federal statute is insufficient
to confer federal question jurisdiction, see Merrell Dow, 478 U.S. at 817, then surely an
analogous claim that does not allege failure to comply with federal law is also insufficient.
Even assuming, arguendo, that a federal issue is raised by plaintiff’s Complaint, the
Pharmaceutical Defendants cannot show that the issue is “actually disputed.” As plaintiff states,
“there is nothing disputed in the federal statutory and regulatory realm because the Plaintiff does
not allege that the law required HIV+ patients to be included in the HUMIRA clinical trials.”
Larson Resp. at 15.
Accordingly, I conclude that this Court does not have federal question jurisdiction under
28 U.S.C. § 1331. Therefore, I will proceed to determine whether subject matter jurisdiction
exists under 28 U.S.C. § 1332.

B. Diversity Jurisdiction
As discussed, diversity jurisdiction under 28 U.S.C. § 1332 “requires complete diversity
among parties, meaning that the citizenship of every plaintiff must be different from the
citizenship of every defendant.” Cent. W. Virginia Energy Co., Inc., supra, 636 F.3d at 103.
“When a plaintiff files in state court a civil action over which the federal district courts would
- 20 -

have original jurisdiction based on diversity of citizenship, the defendant or defendants may
remove the action to federal court, 28 U.S.C. § 1441(a), provided that no defendant ‘is a citizen
of the State in which such action is brought.’” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)
(quoting 28 U.S.C. § 1441(b)).
The Pharmaceutical Defendants concede that both plaintiff and several of the Medical
Defendants are citizens of Maryland. Ordinarily, such lack of complete diversity would defeat
this Court’s diversity jurisdiction. See 28 U.S.C. § 1441(b). However, the Pharmaceutical
Defendants contend: “Plaintiff has fraudulently misjoined both Abbott and Harrison & Star to
the Medical Malpractice Defendants.” Memo at 18. As a result, they claim that “the citizenship
of the Medical Malpractice Defendants is not considered for purposes of establishing diversity
jurisdiction.” Notice of Removal ¶ 23.
To address properly the Pharmaceutical Defendants’ argument that they were
“fraudulently misjoined,” it is important to distinguish between the widely accepted doctrine of
“fraudulent joinder” and the more controversial doctrine of “fraudulent misjoinder.”
The doctrine of fraudulent joinder has been expressly adopted by the Fourth Circuit. See
Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999). The fraudulent joinder doctrine prevents
a plaintiff from adding a non-diverse defendant solely for the purpose of defeating federal
diversity jurisdiction. Fraudulent joinder occurs when “‘there is no possibility that the plaintiff
would be able to establish a cause of action against the in-state defendant in state court; or
[when] there has been outright fraud in the plaintiff’s pleading of jurisdictional facts.’” Id.
- 21 -

(quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)) (emphasis in
Marshall). In such a case, the doctrine permits a court to “disregard, for jurisdictional purposes,
the citizenship of certain non-diverse defendants, assume jurisdiction over a case, dismiss the
nondiverse defendants, and thereby retain jurisdiction.” Mayes, 198 F.3d at 464; accord Schur v.
L.A. Weight Loss Centers, Inc., 577 F.3d 752, 763 (7th Cir. 2009); Balt. Cnty. v. Cigna
Healthcare, 238 F. App’x 914, 920 (4th Cir. 2007); In re Briscoe, 448 F.3d 201, 216 (3d Cir.
2006).
The doctrine of “fraudulent misjoinder” or “procedural misjoinder” was also created to
prevent plaintiffs from improperly defeating diversity jurisdiction. See Tapscott v. MS Dealer
Serv. Corp., 77 F.3d 1353 (11th Cir. 1996) (creating the doctrine), abrogated on other grounds
by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). But, it is not as widely accepted
as the doctrine of fraudulent joinder. See Rutherford v. Merck & Co., 428 F. Supp. 2d 842, 852
(S.D. Ill. 2010) (“[E]normous judicial confusion [has been] engendered by the [fraudulent
misjoinder] doctrine.”). Courts have found fraudulent misjoinder when a plaintiff includes
“claims against certain defendants [that], while provable, have no real connection to the claims
against other defendants in the same action and were only included in order to defeat diversity
jurisdiction and removal.” Stephens v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc.,
807 F. Supp. 2d 375, 379 (D. Md. 2011). In other words, a plaintiff has fraudulently misjoined a
defendant whose presence defeats diversity jurisdiction when the claims against that defendant,
although with merit, are not connected to the claims against the other, diverse defendants. Id.
- 22 -

As with fraudulent joinder, the fraudulent misjoinder doctrine permits federal district courts “to
disregard the citizenship of non-diverse parties and retain jurisdiction.” Id.
The Fourth Circuit has not addressed the doctrine of fraudulent misjoinder, and the status
of the doctrine among district courts is muddled. As an initial matter, district courts in this
Circuit disagree about whether to adopt the doctrine. Compare Stephens, 807 F. Supp. 2d at
378–80 (adopting fraudulent misjoinder doctrine), and Burns v. W. S. Life Ins. Co., 298 F. Supp.
2d 401, 403 (S.D. W. Va. 2004) (same), with Palmetto Health Alliance v. S. Carolina Elec. &
Gas Co., Civ. No. JFA-11-2060, 2011 WL 5027162, *2 (D.S.C. Oct. 21, 2011) (declining to
adopt fraudulent misjoinder doctrine), and Beaty v. Bridgestone Americas Tire Operations, LLC,
Civ. No. RBH-10-3303, 2011 WL 939001, *3–4 (D.S.C. Mar. 16, 2011) (same). District courts
in other circuits similarly have not reached a consensus. See Geffen v. Gen. Elec. Co., 575 F.
Supp. 2d 865, 870 (N.D. Ohio 2008) (noting the “conflicting case law” on the subject).
Among the courts that have adopted the fraudulent misjoinder doctrine, further
disagreement exists over its contours. In Tapscott v. MS Dealer Serv. Corp., 77 F.3d at 1360, the
Eleventh Circuit stated:
Misjoinder may be just as fraudulent as the joinder of a resident defendant
against whom a plaintiff has no possibility of a cause of action. A defendant’s
“right of removal cannot be defeated by a fraudulent joinder of a resident
defendant having no real connection with the controversy.” Wilson v. Republic
Iron & Steel Co., 257 U.S. 92, 97 (1921). . . . We do not hold that mere
misjoinder is fraudulent joinder, but we do agree with the district court that
Appellants’ attempt to join these parties is so egregious as to constitute fraudulent
joinder.

- 23 -

Some district courts, picking up on the last line of this passage, have declined to find
fraudulent misjoinder in the absence of egregiousness or “‘something more’” than mere
misjoinder. Wyatt v. Charleston Area Med. Ctr., Inc., 651 F. Supp. 2d 492, 496 (S.D. W. Va.
2009) (quoting In re Bridgestone/Firestone, Inc., 260 F. Supp. 2d 722, 728 (S.D. Ind. 2003)).
Others, including the majority of district courts within the Fourth Circuit that have adopted the
doctrine, have declined to impose an egregiousness requirement on the misjoinder analysis. See,
e.g., Stephens, 807 F. Supp. 2d at 381; Hughes v. Sears, Roebuck and Co., Civ. No. JPB-09–93,
2009 WL 2877424, at *5 (N.D. W. Va. Sept. 3, 2009); Burns, 298 F. Supp. 2d at 403; see
generally E. Farish Percy, Defining the Contours of the Emerging Fraudulent Misjoinder
Doctrine, 29 Harv. J.L. & Pub. Pol’y 569 (2006).
Still more disagreement exists over whether to analyze alleged fraudulent misjoinder with
reference to the state or the federal procedural rule governing permissive joinder of parties. In
Tapscott, the Eleventh Circuit analyzed the issue with reference to the federal rule, noting that
the state procedural rule was identical to the federal one. Id. at 1355 n.1. The court in Stephens
proceeded the same way, noting that “Maryland’s law governing permissive joinder is
substantively identical to its federal counterpart and need not be considered independently.” 807
F. Supp. 2d at 381 n.5. Other courts, however, “have determined that the issue of whether claims
have been misjoined should be evaluated under state procedural law rather than federal law.”
Asher v. Minnesota Mining & Mfg. Co., Civ. No. KKC-04-522, 2005 WL 1593941 (E.D. Ky.
June 30, 2005) (collecting cases); see Osborn v. Metropolitan Life Ins. Co., 341 F. Supp. 2d
- 24 -

1123, 1128 (E.D. Cal. 2004) (“[M]ost courts looking at this issue have applied the state rule.
This seems the better choice since the question is whether the parties were misjoined in state
court.”). This debate is not merely academic, as some states’ joinder rules are more permissive
than the federal rule. See, e.g., Osborn, 341 F. Supp. 2d at 1128–29 (“California joinder rules
have been construed liberally and there are situations where the State’s joinder rules would allow
for permissive joinder of defendants while the federal rules would not.”); Jamison v. Purdue
Pharma Co., 251 F. Supp. 2d 1315, 1320 (S.D. Miss. 2003) (“This situation presents a dilemma
for a district court confronted with a removed case consisting of parties who are properly joined
under Mississippi’s Rule 20, but misjoined under that rule’s federal counterpart.”).
Fortunately, I need not enter this doctrinal thicket. Even if I adopted the fraudulent
misjoinder doctrine, despite its flaws,8 applying it to sever the claims in this case would turn the
doctrine entirely on its head.
As discussed, the doctrine was created to prevent unscrupulous plaintiffs from improperly
joining non-diverse parties in a fraudulent attempt to avoid a federal forum. That is not what
happened in this case. Here, for more than a year, plaintiff initially proceeded only against the
Medical Defendants. Most of the Medical Defendants are citizens of Maryland. Therefore, from
the outset, there was no diversity jurisdiction, nor any possibility of removal to federal court.
8

For a discussion of the possibility that the doctrine violates Fed. R. Civ. P. 82, see
Jamison, 251 F. Supp. 2d at 1321 n.6. For a discussion of the possibility that the doctrine
contravenes congressional intent, see Ronald A. Parsons, Jr., Should the Eighth Circuit
Recognize Procedural Misjoinder?, 53 S.D. L. Rev. 52, 62–64 (2008). For a discussion of the
uncertainty the doctrine has engendered, see Osborn, 341 F. Supp. 2d at 1126–28. For a
discussion of the federalism concerns the doctrine raises, see Rutherford v. Merck & Co., Inc.,
428 F. Supp. 2d 842, 852, 854 (S.D. Ill. 2006).
- 25 -

Thereafter, plaintiff re-filed her suit, adding the Pharmaceutical Defendants to the case. The
decision to add the Pharmaceutical Defendants, far from being a fraudulent attempt to defeat
diversity, actually opened the door to the possibility of a federal court hearing the matter.
Although the Pharmaceutical Defendants may have been added to the case “[o]n the eve of trial,”
Notice of Removal ¶ 2, their addition was not an eleventh hour effort to avoid a federal forum.
Thus, the circumstances of this case are not in the same ballpark, the same league, or even the
same sport as those which necessitated the creation of the fraudulent misjoinder doctrine.
In any event, regardless of plaintiff’s motive in joining the Pharmaceutical Defendants
and the Medical Defendants, the joinder is entirely proper. Both the federal and Maryland state
joinder rules permit joinder of defendants if “any right to relief is asserted against them . . .
arising out of the same transaction [or] occurrence” and “any question of law or fact common to
all defendants will arise in the action.” Fed. R. Civ. P. 20; see Md. Rule 3-212. As the Maryland
Court of Appeals has said, “‘The core purpose of the rule is to permit a single trial of claims
having a similar foundation or similar issues.’” Kennedy v. Lasting Paints, Inc., 404 Md. 427,
444, 947 A.2d 503, 513 (2008) (quoting Paul D. Niemeyer & Linda M. Schuett, Maryland Rules
Commentary 143–44 (3d ed. 2003)).
Both prongs of the joinder inquiry are easily satisfied here. As to the first prong, the
genesis of this suit involves a series of “transactions or occurrences,” i.e., Mr. Larson’s ingestion
of HUMIRA. As to the second prong, there are several common questions of fact between the

- 26 -

two sets of defendants, including the propriety of prescribing HUMIRA to an HIV+ person for
the treatment of psoriasis.9
Indeed, it would be exceedingly inefficient, if not problematic, if Ms. Larson chose not to
join the Pharmaceutical Defendants and the Medical Defendants in one suit. A jury determining
whom to hold liable for Mr. Larson’s injuries surely needs to hear from both sets of defendants.
If the negligence and product liability claims were tried separately, each set of defendants “could
utilize the ‘empty chair’ defense,” conveniently blaming the injuries on the missing defendants.
Stephens, 807 F. Supp. 2d at 384. As one court has observed, Rice v. Pfizer, Inc., No. 06-0757,
2006 WL 1932565 at *3 (N.D. Tex. July 7, 2006): “If the Pharmaceutical Defendants prove that
they provided adequate warning to physicians and/or the public . . . then [the doctor] may be
liable for medical malpractice because he knew or should [have] known of the risks based on the
Pharmaceutical Defendants’ warning.” On the other hand, if the Pharmaceutical Defendants did
not inform physicians of HUMIRA’s risks, then perhaps the Medical Defendants would be held
blameless. Either way, “the defendants will almost certainly debate which defendant is most
responsible for the injuries . . . , the extent of the injuries, and what caused the injuries.” Wyatt v.
Charleston Area Med. Ctr., Inc., 651 F. Supp. 2d 492, 498 (S.D. W. Va. 2009).
In addition, if plaintiff were to proceed separately against each group of defendants, it is
quite possible that each group of defendants would file third party claims against the persons or
entities in the other group. This would return the case to the pre-severance posture.
9

Arguably, the allegations against Dr. Yang and Annapolis Infectious Disease
Associates, L.L.P. most resemble a classic medical malpractice claim. However, the claims
against Dr. Meltzer are clearly connected to the claims against the Pharmaceutical Defendants.
- 27 -

What is more, severing the claims would result in precisely that which the liberal joinder
rules were meant to prevent. By ensuring that claims presenting similar issues are tried together,
the joinder rules “‘promote trial convenience and expedite the final determination of disputes,
thereby preventing multiple lawsuits.’” Saval v. BL, Ltd., 710 F.2d 1027, 1031 (4th Cir. 1983)
(quoting Mosley v. General Motors Corp., 497 F.2d 1330, 1332 (8th Cir. 1974)). Severing the
claims here would require Ms. Larson to proceed on separate and redundant tracks in federal and
state court, which would “result in the duplication of evidence, increase the cost of litigation, and
carries with it the potential for inconsistent verdicts.” Reuter v. Medtronics, Inc., No. 10-3019,
2010 WL 4628439 (D.N.J. Nov. 5, 2010), report and recommendation adopted, 2010 WL
4902662 (D.N.J. Nov. 23, 2010).
The majority of federal courts that have addressed joinder in the context of jointly pled
medical malpractice and product liability claims have reached the same conclusion. See, e.g.,
Ramirez v. Our Lady of Lourdes Hosp. at Pasco, No. 13-01108, 2013 WL 5373213 (W.D. Wash.
Sept. 25, 2013); Nolan v. Olean Gen. Hosp., No. 13-333, 2013 WL 3475475 (W.D.N.Y. July 10,
2013); Goodwin v. Kojian, No. 13-325, 2013 WL 1528966 (C.D. Cal. Apr. 12, 2013); N.C. ex
rel. Jones v. Pfizer, Inc., No. 12-00531, 2012 WL 1029518 (N.D. Cal. Mar. 26, 2012);
Hagensicker v. Boston Scientific Corp., No. 12-5018, 2012 WL 836804 (W.D. Mo. Mar. 12,
2012); Yates v. Medtronic, Inc., No. 08-0337, 2008 WL 4016599 (S.D. Ala. Aug. 26, 2008);
Snyder v. Davol, Inc., No. 07-1081, 2008 WL 113902 (D. Or. Jan. 7, 2008); Greene v. Novartis
Pharm. Corp., No. 07-00091, 2007 WL 3407429 (M.D. Ga. Nov. 14, 2007); Moote v. Eli Lilly
- 28 -

and Co., No. 06-472, 2006 WL 3761907 (S.D. Tex. Dec. 21, 2006); Jamison, supra, 251 F.
Supp. 2d 1315. But see In re Guidant Corp. Implantable Defibrillators Products Liability
Litigation, No. 07-1487, 2007 WL 2572048 (D. Minn. Aug. 30, 2007).
Accordingly, I will not sever the Medical Defendants from the suit. Because the Medical
Defendants are citizens of the same state as the plaintiff, complete diversity does not exist. It
follows that this Court lacks diversity jurisdiction.10

CONCLUSION
For the foregoing reasons, I conclude that this Court lacks subject matter jurisdiction as
to this case. Accordingly, pursuant to 28 U.S.C. § 1447(c), the case must be remanded to the
Circuit Court for Baltimore City for further proceedings. An Order implementing this ruling
follows.

Date: November 5, 2013

10

/s/
Ellen L. Hollander
United States District Judge

Even if Ms. Larson were determined to be a citizen of New Jersey, see Complaint ¶ 3,
removal of the suit as it currently exists would still be improper, because some of the Medical
Defendants are citizens of Maryland, and a case “may not be removed if any of the parties in
interest properly joined and served as defendants is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b)(2). Thus, the case is not removable on the basis of diversity.
- 29 -