Rolfe et al v. Biomet, Inc. et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' motion to remand is DENIED IN PART and GRANTED IN PART. (Doc. No. 13 .) IT IS FURTHER ORDERED that Plaintiffs' products liability claims against Defendants Biomet, Inc., and B iomet Orthopedics LCC, are severed from Plaintiffs' medical negligence claims against Defendants Kindred Hospitals East, LLC, and Mohammed Haque, M.D. IT IS FURTHER ORDERED that Plaintiffs' products liability claims against Defendants Biomet, Inc., and Biomet Orthopedics, LCC, will remain in this Court. IT IS FURTHER ORDERED that Plaintiffs' medical negligence claims against Defendants Kindred Hospitals East, LLC, and Mohammed Haque, M.D., are remanded to the Circuit Court of St. Louis County, Missouri. Signed by District Judge Audrey G. Fleissig on July 14, 2014. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
PETER ROLFE and RHONDA ROLFE,
BIOMET, INC.; BIOMET
ORTHOPEDICS, LLC; MOHAMMAD
HAQUE, M.D.; and KINDRED
HOSPITALS EAST, LLC,
Case No. 4:14CV00738 AGF
MEMORANDUM AND ORDER
This action is before the Court on Plaintiffs’ motion to remand this case to the
state court from which it was removed, due to lack of subject matter jurisdiction.
Plaintiffs are husband and wife who assert products liability claims against two nonMissouri Defendants, and medical negligence claims against a Missouri Defendant and a
non-Missouri Defendant. For the reasons set forth below, the claims against the two sets
of Defendants shall be severed and Plaintiffs’ motion to remand shall be denied as to the
products liability claims and granted as to the medical negligence claims.
On February 24, 2014, Plaintiffs Peter Rolfe and Rhonda Rolfe filed this action in
Missouri state court. They allege that on December 6, 2010, Peter Rolfe underwent
surgery to have a reverse shoulder system manufactured by the Defendants Biomet, Inc.,
and Biomet Orthopedics, LLC, (“the Biomet Defendants”), implanted into his left
shoulder. Within the next 14 months, two of the screws from the reverse shoulder system
fractured causing Peter Rolfe to undergo numerous additional surgeries which led to
postoperative infections and medical bills in excess of $590,000. Plaintiffs assert various
products liability claims against the Biomet Defendants linked to the manufacturing of
the reverse shoulder system.
Plaintiffs further allege that in February and March of 2012, Defendants Kindred
Hospitals East (“Kindred”) and Mohammad Haque, M.D., committed medical negligence
when they improperly prescribed and injected Lovenox1 into Peter Rolfe’s left thigh
muscle. Plaintiffs demand that Kindred and Haque each pay $25,000 in damages for the
excessive pain and suffering they caused Peter Rolfe.
It is undisputed that Plaintiff Peter Rolfe is a citizen of Illinois; Plaintiff Rhonda
Rolfe is a citizen of Missouri; Defendant Kindred is a Delaware Corporation with its
principal place of business in Kentucky; Defendant Haque is a citizen of Missouri; and
the Biomet Defendants are citizens of Indiana.
The state court file indicates that on March 14, 2014, Biomet Orthopedics, LLC,
was served with the state court petition; on March 17, 2014, Kindred was served; and on
March 21, 2014, Biomet, Inc. was served. Haque has not yet been served. On April 9,
2014, Kindred filed an answer. On April 14, 2014, the Biomet Defendants removed the
action to this Court on the basis of diversity of citizenship pursuant to 28 U.S.C.
Lovenox is an anticoagulant indicated to help reduce the risk of developing deep vein
§ 1332(a)(1). They stated in their notice of removal that “there had been no proceedings
in this action in the Circuit Court of the County of St. Louis, Missouri nor have any of the
named Defendants filed responsive pleadings or otherwise pleaded to Plaintiffs’
petition.” (Doc. No. 1.)
The Biomet Defendants further asserted in their notice of removal that there was
complete diversity in this case because Kindred and Haque were misjoined in the action
and therefore Haque’s Missouri citizenship is irrelevant for removal purposes. They
argue that Plaintiffs’ claims against Kindred and Haque were misjoined because those
claims are factually and legally distinct from the claims against the Biomet Defendants,
and thus fail to meet the permissive joinder requirements of Federal Rule of Civil
Procedure 20(a)(2). The Biomet Defendants argue that the Court should sever Plaintiffs’
claims against Kindred and Haque from Plaintiffs’ claims against the Biomet Defendants
pursuant to Rule 21, and dismiss Kindred and Haque without prejudice or remand the
claims against Kindred and Haque to state court. This would leave this Court with
diversity jurisdiction over the products liability claims. Kindred consented to removal on
April 28, 2014.
For remand, Plaintiffs argue that pursuant to the federal permissive joinder rules,
Plaintiffs are allowed to join all the named Defendants because Plaintiffs’ claims for
relief against them arise out of the same transactions or occurrences and give rise to
common questions of law or fact as required by Rule 20(a)(2). Plaintiffs explain that
Peter Rolfe was prescribed and injected with the Lovenox in his left thigh when he was
hospitalized after having the reverse shoulder system removed from his left shoulder.
They explain that the Lovenex injection was part of “postoperative treatment” made
necessary by the Biomet Defendants’ “improper acts,” and that it caused Peter Rolfe
extreme pain, extended his need for medical care, and prolonged his recovery time.
Plaintiffs state that misjoinder has not been recognized by the Eighth Circuit as a
basis for removal without a showing of “egregious” misjoinder. They argue that the
Court should not sever the claims because severance will cause unjust prejudice to
Plaintiffs forcing them to litigate two separate actions regarding the same events, and
may lead to inconsistent judgments. Plaintiffs note that without severance of the claims,
there is not complete diversity, and thus the entire case should be remanded.
Additionally, Plaintiffs argue that their motion to remand should be granted
because the Biomet Defendants “waived” any right of removal when Kindred filed an
answer in state court prior to removal, as this made unanimous consent to removal
impossible. Plaintiffs maintain that Kindred’s consent to removal was too late and should
In further support of their motion to remand, Plaintiffs assert that the Biomet
Defendants failed to comply with Local Rule 81-2.03(4) (requiring removing defendants
to file with the notice of removal “a copy of all process, pleadings, orders and other
documents then on file in State Court”) when they did not include a copy of Kindred’s
answer with their notice of removal. They argue that this failure to comply with the
Local Rules is sufficient for remand given the strict construction of removal statutes.
In response to Plaintiffs’ motion to remand, the Biomet Defendants raise three
arguments. First, they assert, as they did in their notice of removal, that the Court should
sever and remand the claims against Kindred and Haque to state court and retain
jurisdiction over the claims against the Biomet Defendants because Kindred and Haque
were fraudulently misjoined in an attempt to destroy federal subject matter jurisdiction
and keep the action in state court. They maintain that the evidence for Plaintiffs’ medical
negligence claims against Kindred and Haque will be separate from the evidence for the
products liability claims against the Biomet Defendants. The Biomet Defendants argue
that a showing of an “egregious” attempt to avoid federal court should not be required,
and even if it is, the standard is met here because the joined claims are not related, and in
light of the litigation history of Plaintiffs’ claims. The Biomet Defendants note that
Plaintiffs first filed an action in state court on February 11, 2013, against the Biomet
Defendants, the physician who implanted the shoulder system, and Kindred. The
physician and Kindred were dismissed by Plaintiffs, and the Biomet Defendants removed
the action to this Court on September 13, 2013. The case proceeded for five months –
through scheduling and a submission of a confidentiality agreement to the Court – at
which point Plaintiffs dismissed the case without prejudice. Five days later, Plaintiffs
filed the present action in state court. According to the Biomet Defendants, “rather than
file a separate action in state court against Kindred and Haque, Plaintiffs attempted to
avoid this tribunal by dismissing the federal case and refiling against misjoined parties in
Second, the Biomet Defendants assert that Plaintiffs’ argument that Kindred
waived the Biomet Defendants’ statutory right to removal when it filed an answer in state
court “goes against black letter law” and should be rejected. Third, they assert that they
complied with Local Rule 81-2.03(4) because they had not been served with Kindred’s
answer at the time when the notice of removal was filed.
In their reply, Plaintiffs assert that the litigation history noted above does not show
an attempt to avoid the federal courts.
Removal statutes are strictly construed and any doubts about the propriety of
removal are to be resolved in favor of remand. Cent. Iowa Power Co-op. v. Midwest
Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009); In re Bus.
Men’s Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993). Federal district courts
have diversity jurisdiction over all civil actions in which the amount in controversy
exceeds $75,000 and is between citizens of different states. 28 U.S.C. § 1332(a)(1).
Courts interpret this statute to require complete diversity between all plaintiffs and all
defendants. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). The removing
party, as the party invoking federal jurisdiction, bears the burden of proving that all
prerequisites to jurisdiction are satisfied. Green v. Ameritrade, Inc., 279 F.3d 590, 596
(8th Cir. 2002).
Under the federal rules, plaintiffs are allowed to join whomever they like as
defendants if the right to relief against them arises out of the same transaction,
occurrence, or series of transactions and occurrences and gives rise to a common question
of law or fact. Fed. R. Civ. P. Rule 20(a)(2). Courts have long recognized fraudulent
joinder, i.e., joining a non-diverse defendant against whom the plaintiff does not have a
viable claim, as an exception to the complete diversity requirement. A more recently
developed exception to the complete diversity requirement is “fraudulent misjoinder.” In
re Prempro Prod. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010) (citations omitted).
“Fraudulent misjoinder occurs when a plaintiff sues a diverse defendant in state court and
joins a viable claim involving a non-diverse party . . . even though the plaintiff has no
reasonable procedural basis to join them in one action because the claims bear no relation
to each other.” Id.
At least two circuits have adopted this doctrine, as have many district courts. See
Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), abrogated on
other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000); In re
Benjamin Moore & Co., 309 F.3d 296 (5th Cir. 2002); Stone v. Zimmer, Inc., No.
0980252 CIV DTKH, 2009 WL 1809990, at *2 (S.D. Fla. June 25, 2009); Hughes v.
Sears, Roebuck & Co., No. 2:09CV00093 JPB, 2009 WL 2877424, at *5 (N.D. W.Va.
Sept. 3, 2009) (“Where a non-diverse party cannot be properly joined under the Federal
Rules of Civil Procedure, the defendant's right of removal should prevail over that of
permitting a plaintiff's choice of forum”.).
Of those courts, some have found that fraudulent misjoinder requires a finding of
both misjoinder and a bad faith or “egregious” attempt to avoid the federal courts, while
other courts have declined to apply the more stringent “egregious” standard when
considering motions to remand. In re Guidant Corp. Implantable Defibrillators Prod.
Liab. Litig., No. 0701487 DWF, 2007 WL 2572048, at *3 (D. Minn. Aug. 30, 2007)
(citing cases); In re Stryker Rejuvenate & ABG II Hip Implant Prods. Liab. Litig., No.
1301811 DWF, 2013 WL 6511855, at *4-5 (D. Minn. Dec. 12, 2013). When fraudulent
misjoinder is found, courts typically will sever the claims, remand the non-diverse parties
to state court and retain jurisdiction over the claims against the diverse parties. See, e.g.,
Hughes, 2009 WL 2877424, at *7.
The Eighth Circuit has not yet determined whether removal based on diversity of
citizenship can be thwarted by fraudulent misjoinder. In In re Prempro, that Court
acknowledged the doctrine of fraudulent misjoinder, but specifically declined to either
adopt or reject it, because in that case the defendant drug manufacturers failed to meet
their burden of establishing that the multiple plaintiffs’ claims that the drugs in question
caused breast cancer were “egregiously misjoined.” The Court stated that the claims
were “logically related,” and the litigation was “likely to contain common questions of
law and fact,” such as the causal link between the drugs and breast cancer. In re
Prempro, 591 F.3d at 622-24. Accordingly, the Court denied the defendants’ motion to
remand based on fraudulent misjoinder.
Based on this language in In re Prempro, this Court believes that the Eighth
Circuit would have a district court that decides to adopt the doctrine apply the
“egregious” standard. Here, the Court concludes that the misjoinder of the diverse and
non-diverse medical malpractice Defendants with the completely diverse products
liability Defendants meets this standard. The products liability and medical malpractice
claims are factually and legally distinct and will require different evidence. Plaintiffs’
medical negligence claims against Kindred and Haque will require evidence on the care
and treatment Peter Rolfe received when he was hospitalized in 2012, while Plaintiffs’
products liability claims against the Biomet Defendants will require evidence on the
design and manufacturing of the reverse shoulder system and any warnings
accompanying the device.
In the complaint, the relation between the two types of claims is not evident, and
even with the explanation offered later by Plaintiffs, the connection of the alleged defect
in the shoulder system, and the injection of Lovenox in Peter Rolfe’s left thigh remains
tangential. Indeed, there is a minor overlap in Plaintiffs’ claims against the two sets of
Defendants in that the reason Peter Rolfe was in the hospital in 2012 was allegedly
because the reverse shoulder system cracked, but this is not enough to overcome the
distinct nature of the joined claims. Further, the litigation history noted above supports
the Court’s conclusion that the misjoinder here was in bad faith to avoid a federal
Accordingly, the Court will sever the claims against the Biomet Defendants from
the claims against Kindred and Haque in order to preserve the Biomet Defendants’
statutory right of removal. The Court will remand the medical negligence claims to state
court, and retain jurisdiction over the products liability claims, there being complete
diversity with respect to Plaintiffs’ claims against the Biomet Defednants.
The Court rejects Plaintiffs’ contention that the Biomet Defendants “waived” their
right of removal when Kindred filed an answer in state court. As noted above, Kindred
was served before Biomet, Inc., one of the removing Defendants, and consented to
removal two weeks after removal. This comports with §1446(b)(2)(C), which provides
that “[i]f Defendants are served at different times, and a later served defendant files a
notice of removal, any earlier-served defendant may consent to the removal even though
that earlier-served defendant did not previously initiate or consent to removal.”
Furthermore, because Kindred was misjoined, its consent to removal was not
necessary and had no effect on the Biomet Defendants’ ability to remove. See In re
Guidant Corp, 2007 WL 2572048, at *4; cf. Roberts v. Palmer, 354 F. Supp. 2d 1041,
1046 (E.D. Mo. Jan. 27, 2005) (explaining in the context of fraudulent joinder that a
“plaintiff may successfully challenge removal based on lack of unanimous consent only
with respect to non-fraudulently joined defendants served or otherwise in receipt of the
complaint by the time of removal”).
The Court similarly rejects Plaintiffs’ argument that the case should be remanded
because the Biomet Defendants failed to comply with Local Rule 81-2.03(4) by not
including a copy of Kindred’s answer in the notice of removal. As Kindred was
misjoined in the action, Plaintiffs’ argument is not procedurally relevant. And the Court
credits the Biomet Defendants’ assertion that they had not been served with Kindred’s
answer at the time of removal.
IT IS HEREBY ORDERED that Plaintiffs’ motion to remand is DENIED IN
PART and GRANTED IN PART. (Doc. No. 13.)
IT IS FURTHER ORDERED that Plaintiffs’ products liability claims against
Defendants Biomet, Inc., and Biomet Orthopedics LCC, are severed from Plaintiffs’
medical negligence claims against Defendants Kindred Hospitals East, LLC, and
Mohammed Haque, M.D.
IT IS FURTHER ORDERED that Plaintiffs’ products liability claims against
Defendants Biomet, Inc., and Biomet Orthopedics, LCC, will remain in this Court.
IT IS FURTHER ORDERED that Plaintiffs’ medical negligence claims against
Defendants Kindred Hospitals East, LLC, and Mohammed Haque, M.D., are remanded to
the Circuit Court of St. Louis County, Missouri.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 14th day of July, 2014.
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