Alexander et al v. CH Allied Services, Inc. et al

Filing 24

ORDER entered by Judge Nanette Laughrey. Plaintiff Donald Alexander's Motion to dismiss for lack of subject matter jurisdiction [Doc. # 14] is DENIED. Defendant Medtronic's motion to stay all proceedings [Doc. # 9] and Defendant CH Allie d Services's motion to join Medtronic's motion [Doc. # 10] are GRANTED. Defendant Medtronics motion to extend or stay deadlines [Doc. # 20] and Defendant CH Allied Services' motion to join Medtronic's motion [Doc. # 22] are DENIE D as moot. Plaintiffs Gary Lee Patterson, George Dalton, and Susie Bowen have twenty-one days to provide the Court with signed copies of any of the pleadings or motions filed with the Court to which they assent. After twenty-one days, the Court will strike these Plaintiffs from any documents they have not signed. (Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

DONALD K. ALEXANDER, GARY LEE )
PATTERSON, GEORGE DALTON, and )
SUSIE BOWEN,
)
)
)
Plaintiffs,
)
)
v.
)
)
MEDTRONIC, INC. and CH ALLIED
)
SERVICES, INC. (DBA BOONE
)
HOSPITAL CENTER),
)
)
Defendants.

Case No. 2:12-cv-4104-NKL

ORDER
Plaintiff Donald Alexander, and others, claims that Defendant Medtronic, and others,
negligently implanted him with a defective defribillator lead, and that Medtronic engaged in
bribery, illegal false statements, and illegal kickbacks in doing so. Pending before the Court
are Alexander’s Motion to dismiss for lack of subject matter jurisdiction [Doc. # 14],
Medtronic’s motion to stay all proceedings [Doc. # 9], Defendant CH Allied Services’s
motion to join that motion [Doc. # 10], Medtronic’s motion to extend or stay deadlines [Doc.
# 20], and Defendant CH Allied Services’ motion to join that motion [Doc. # 22]. For the
following reasons, the Court denies Alexander’s motion to dismiss and grants Medtronic’s
motion to stay the case pending the outcome of an appeal before the Eighth Circuit between
these same parties.
I.

Factual Background

Prior to filing this lawsuit, Alexander filed three separate lawsuits against Medtronic,
all arising from Medtronic’s role in implanting an allegedly defective defibrillator lead in
Alexander. Alexander’s third such case was originally filed in this Court, and alleged
damages under civil RICO, intentional medical negligence, false advertising and consumer
fraud, vicarious liability, and conspiracy. Case no. 10-4081-NKL Doc. # 1 at 1. All three
of these claims ended up in the District of Minnesota and all three were dismissed as barred
by a settlement agreement between Alexander and Medtronic. For two of those cases,
Alexander filed motions to reconsider in the District of Minnesota and for one of those cases,
Alexander filed a motion for reconsideration in this Court. All three of these motions were
denied. Alexander has appealed these denials, and his appeals have been consolidated in the
Eighth Circuit.
Alexander then filed the current lawsuit against Medtronic in Missouri state court,
arguing that Medtronic’s role in implanting an allegedly defective defibrillator entitled
Alexander to damages for criminal conspiracy, bribery, fraud, and gross medical negligence.
Medtronic removed the action to this Court. Alexander claims the lawsuit was improperly
removed, and asks the Court to remand to state court.1 Medtronic argues that, in the interest
of judicial efficiency, this lawsuit should be stayed pending the result of the Eighth Circuit
appeal of the previous cases between Alexander and Medtronic.

1

Alexander’s motion does not explicitly ask for remand to state court, but is rather
captioned as a motion to dismiss. It appears from Alexander’s briefing, however, that Alexander
wishes for the case to continue, but views removal to federal court as improper in this case. The
Court thus treats this motion as a motion for remand to state court.
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II.

Analysis
A.

Effect of Unsigned Filings

Medtronic points out that all four Plaintiffs are non-lawyers proceeding pro se and that
only Plaintiff Alexander has signed the Petition and subsequent documents. Medtronic
appears to argue that the Court should thus strike the pleadings. Federal Rule of Civil
Procedure 11(a) provides: “Every pleading, written motion, and other paper must be signed
by at least one attorney of record in the attorney's name--or by a party personally if the party
is unrepresented” and that “[t]he court must strike an unsigned paper unless the omission is
promptly corrected after being called to the attorney's or party's attention.” Because
Alexander has signed the filings in this case on his own behalf, he has satisfied the
requirements of Rule 11(a) as to himself.
But as for the remaining three Plaintiffs, Alexander is not their attorney and he cannot
sign on their behalf. 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1333 at 513 (3d ed. 2004).

Without the signature of these parties on any

document on file, Rule 11 has not fulfilled its purpose of “mak[ing] certain that the persons
who are named as parties are actually in assent to the filing of an action on their behalf.”
Scarrella v. Midwest Fed. Sav. and Loan, 536 F.2d 1207, 1209 (8th Cir. 1976). The text of
Rule 11 suggests that all filings not signed by these three Plaintiffs must be stricken as to
these Plaintiffs, as these Plaintiffs have long been on notice that they were required to sign
their filings and have not promptly corrected this error. See [Doc. # 1 at 1]. But “in the
absence of prejudice, the district court can treat the defect as technical and should grant leave
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to correct a failure to sign.” 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1333 at 520-21 (3d ed. 2004); see also Kovilic Constr. Co. v.
Missbrenner, 106 F.3d 768, 772 (7th Cir. 1997). Here Defendants have not claimed
prejudice and the three unsigned Plaintiffs have not asked for leave to sign their filings. The
Courts grants these three Plaintiffs twenty-one days to submit signed copies of any filings
they wish to join; after that time, any Plaintiff who has not signed a document will be
considered stricken from that document.
B.

Whether Subject Matter Exists

Alexander claims the Court cannot grant Medtronic’s motion to stay because
Medtronic improperly removed this case to federal court and the Court therefore lacks
subject matter jurisdiction. Medtronic asks the Court to stay this determination until after
the Eighth Circuit decides a related appeal, claiming that the appeal could guide the Court’s
determination of whether it has subject matter jurisdiction. Medtronic’s suggestion may well
promote judicial efficiency, which is a valid concern. But ensuring that the Court has subject
matter jurisdiction over the parties before it is a more important concern, as evidenced by the
requirement that the Court dismiss an action if at any time during the litigation the Court
determines it lacks subject matter jurisdiction. See FED. R. CIV. P. 12(h)(3). Otherwise, the
Court risks upsetting the balance of federalism that the Court’s jurisdictional rules were
designed to protect. Thus, the Court will not enter an order staying litigation between these
parties until the Court has determined that it has jurisdiction over these parties.

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Medtronic argues that the Court has jurisdiction over Alexander’s claims because
those claims arise under federal law. 28 U.S.C. § 1331. Courts “will normally consider a
claim to have arisen under federal law if a federal cause of action appears on the face [of] a
well-pleaded complaint.” Oglala Sioux Tribe v. C & W Enters., Inc., 487 F.3d 1129, 1131
(8th Cir. 2007). “If even one claim in the complaint involves a substantial federal question,
the entire matter may be removed.” Pet Quarters, Inc. v. Depository Trust and Clearing
Corp., 559 F.3d 772, 779 (8th Cir. 2009). The title of Alexander’s Petition in state court was
“Petition for damages pursuant to criminal conspiracy, bribery, fraud and gross medical
negligence.” [Doc. # 1-1 at 2]. But the remainder of that Petition never cited to any law,
specifically referred to any statute or judicial doctrine, and never set out the elements of any
cause of action.
Medtronic interprets Alexander’s Petition to pursue a private right of action under the
federal Anti-Kickback Statute and the federal False Claims Act. The Anti-Kickback statute
makes it a crime to be involved in payment for referring an individual for medical items or
services that could be paid for by a federal health care program. 42 U.S.C. § 1320a-7b(b).
Any claim violating the Anti-Kickback Statute might also be an illegal knowingly false claim
for payment or approval under the False Claims Act. 31 U.S.C. § 3729 et seq. Consistent
with this interpretation, Alexander’s Petition quotes at length a press release from the United
States Department of Justice that refers to the False Claims Act and states: “The Government
accused Medtronic of submitting false claims to Medicare and Medicaid by offering doctors

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these kickbacks under the guise of post-market studies and device registries.” [Doc. # 1-1
at 3]. Alexander then explains:
The foregoing...announcement disclosing the criminal bribing of physicians
plus the criminal defrauding of...recipients as well as Medicaire/Medicaid
provided Alexander and other Plaintiffs for the first time with information
sufficient to establish standing to sue Medtronic for financial and personal
injury damages directly attributable to said criminal bribery and said criminal
fraud.
[Doc. # 1-1 at 3]. This passage is the closest Alexander comes to an explanation of the legal
basis of his claims, and it appears to refer solely to these two federal statutes. The Court thus
agrees with Medtronic that Alexander’s claims for criminal conspiracy, bribery, and fraud
are all federal causes of action appearing on the face of Alexander’s Petition, and that
removal was thus proper. The Court thus need not address Medtronic’s argument that
diversity jurisdiction exists due to fraudulent joinder.
Alexander argues in his briefing that all of his claims are state tort claims under MO.
REV. STAT. 537.050 (2000). Alexander appears to believe that this statute provides a private
tort claim under Missouri law to the victims of any action that leads to a federal criminal
conviction. But Alexander does not cite or even refer to that statute in his Petition. The only
reference Alexander’s Petition makes to state law is inclusion of the words “gross medical
negligence” in the Petition’s title. Regardless of whether Alexander views his claims as
arising under state law, the claims appear from the face of the Petition to arise under federal
law, and removal was thus proper.

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Further, even if the Court were willing to consider the legal theory expressed in
Alexander’s briefing in deciding the issue of subject matter jurisdiction, the Court would still
find removal proper. Because Alexander’s presumed theory provides that his tort claims
would all turn on whether Medtronic violated federal law, the Court would have “arising
under” jurisdiction under the doctrine expressed in Grable & Sons Metals Prods., Inc. v.
Darue Eng’g & Mfg’g, 545 U.S. 308, 314 (2005), allowing removal where “a state-law
claim necessarily raise[s] 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.”
For these reasons, the Court has subject matter jurisdiction over Alexander’s claims.
The Court thus denies Alexander’s motion to dismiss for lack of subject matter jurisdiction
and will consider Medtronic’s motion to stay the litigation.
C.

Motion to Stay

Medtronic asks the Court to stay this litigation pending resolution of a consolidated
appeal currently before the Eighth Circuit. “A stay pending the outcome of litigation in
another court between the same parties, involving the same or controlling issues is an
acceptable means of avoiding unnecessary duplication of judicial machinery.” Texas Indep.
Producers and Royalty Owners Ass’n. v. E.P.A., 410 F.3d 964, 980 (7th Cir. 2005) (internal
quotation omitted). Medtronic argues that this lawsuit has the same facts, parties, and basic
legal allegations as the pending Eighth Circuit appeal. One case being considered in that
appeal is this Court’s Order dismissing claims by Alexander against Medtronic. Case No. 107

cv-04081-NKL, Doc. # 69. Medtronic argues that the claims dismissed in that Order are
“essentially the same” as the claims raised in this action. [Doc. # 9 at 4]. Medtronic also
argues that if the Eighth Circuit affirms the district court on all issues, that this case will be
barred by a prior settlement between the parties.
Alexander argues that the result of the Eighth Circuit appeal will not affect this
lawsuit. Alexander appears to claim that if he is successful on the pending appeal, he will
dismiss the civil RICO claims being considered in that appeal and only pursue the claims in
this lawsuit. Alexander appears to admit that if he is unsuccessful on the pending appeal, the
Eighth Circuit will have upheld the dismissal of his claims based on a settlement agreement
that he entered. But Alexander argues that this settlement agreement would not affect his
claims in this lawsuit because he has refused to accept the money from that settlement
agreement and because such settlements do not bar civil actions arising out of subsequent
criminal provisions. Alexander cites no law supporting either argument.
Thus, the parties appear to agree that Alexander and Medtronic previously entered a
settlement and that the Eighth Circuit is currently deciding whether that settlement bars some
of Alexander’s claims arising from the same facts involved in this litigation. The parties
appear to dispute whether that same settlement agreement bars the claims in this lawsuit. The
Eighth Circuit’s interpretation of that settlement agreement is thus the “same” as a legal issue
in this case, and may well be “controlling.” The Court cannot evaluate Alexander’s
argument as to whether the settlement agreement bars Alexander’s current claims until it
construes the agreement, a task in which the Eighth Circuit currently appears to be engaged.
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The Court will thus stay all matters in this litigation pending resolution of the current Eighth
Circuit appeal of previous matters between these parties, Eighth Circuit USCA Case Number
12-1157. Defendant Medtronic’s motion to extend or stay deadlines, and Defendant CH
Allied Services’ motion to join Medtronic’s motion, are thus denied as moot.
III.

Conclusion
For the foregoing reasons, Plaintiff Donald Alexander’s Motion to dismiss for lack

of subject matter jurisdiction [Doc. # 14] is DENIED. Defendant Medtronic’s motion to stay
all proceedings [Doc. # 9] and Defendant CH Allied Services’s motion to join Medtronic’s
motion [Doc. # 10] are GRANTED. Defendant Medtronic’s motion to extend or stay
deadlines [Doc. # 20] and Defendant CH Allied Services’ motion to join Medtronic’s motion
[Doc. # 22] are DENIED as moot. Plaintiffs Gary Lee Patterson, George Dalton, and Susie
Bowen have twenty-one days to provide the Court with signed copies of any of the pleadings
or motions filed with the Court to which they assent. After twenty-one days, the Court will
strike these Plaintiffs from any documents they have not signed.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: June 6, 2012
Jefferson City, Missouri

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