Jaquayla Kelly v. Bayer Healthcare Pharmaceuticals, Inc.
Memorandum Opinion and Order: The Court sua sponte severs Counts I, II and III of the Second Amended Complaint, which are entirely between Ohio residents and entirely dependent upon state law, and remands those claims to the Stark County Court of Common Pleas. To that extent, plaintiff's motion to remand (Doc. No. 5 ) is granted. Further, the Court retains jurisdiction over Counts IV, V, VI, and VII, as claims between diverse citizens, and stays all further proceedings in this Court pending the JPML's determination regarding transfer. To that extent, defendant Bayer's motion to stay (Doc. No. 4 ) is granted. Both motions to dismiss (Doc. Nos. 8 and 9 ) are denied without prejudice. Judge Sara Lioi on 5/29/2013. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
AULTMAN PHYSICIAN CENTER,
ETC., et al.,
CASE NO. 5:13CV0994
JUDGE SARA LIOI
Before the Court are several motions that should be resolved as soon as possible,
in the interest of judicial economy: (1) motion of defendant Bayer HealthCare Pharmaceuticals,
Inc. (“Bayer”) to stay all proceedings in this case pending a decision by the Judicial Panel on
Multidistrict Litigation (“the JPML”) as to whether to transfer this case to the U.S. District Court
for the Southern District of New York for inclusion in MDL No. 2434, In re: Mirena IUD
Products Liability Litigation (Doc. No. 4);1 (2) plaintiff’s motion to remand (Doc. No. 5); (3)
Bayer’s motion to dismiss for failure to state a claim (Doc. No. 8); and (4) motion of defendants
Aultman Health Foundation, Aultman Hospital, Aultman Physician Center-OB/GYN, and
Jennifer L. Rogers Grabenstetter (“the Medical Defendants”) to dismiss as time-barred (Doc. No.
Plaintiff has filed her opposition (Doc. No. 7) and defendant has filed its reply (Doc. No. 10).
No opposition briefs have been filed with respect to Doc. Nos. 5, 8 or 9; however, the deadlines for briefing these
motions have not yet expired.
I. PROCEDURAL BACKGROUND
This case arises out of plaintiff’s use of and alleged injury from a contraceptive
device known as the Mirena® IUD.
The complaint was originally filed in Stark County Court of Common Pleas on
March 13, 2013. Plaintiff sued the Medical Defendants and “John and Jane Doe Supervising
Physicians, Aultman OB/GYN” for medical malpractice (Count I), respondeat superior (Count
II), and fraudulent concealment (Count III). Plaintiff filed a first amended complaint on March
29, 2013, joining Bayer as a defendant and adding four causes of action against Bayer only: three
state law product liability counts and a claim for punitive damages.
On May 2, 2013, Bayer removed the case to this Court, asserting that it is “one of
many product-liability cases now pending in federal courts that share common factual allegations
regarding the alleged risks of uterine perforation and migration associated with the Mirena® IUD
and the adequacy of the FDA-approved product warnings.” (Doc. No. 1 at 2.) In its removal
petition, Bayer asserted that, although complete diversity is lacking, the Medical Defendants
were fraudulently joined to defeat diversity jurisdiction. It argued that plaintiff had no basis for a
claim against the Medical Defendants because any medical malpractice claim is already barred
by the statute of limitations.3 Bayer asserted, in the alternative, that this Court may retain
jurisdiction over Bayer (the diverse defendant) by severing the claims of the Medical Defendants
(the non-diverse defendants) because the Medical Defendants are dispensable parties with
respect to the products liability claims against Bayer. (Id. at 6.)4
At the time of the removal, there was also pending in the state court a motion to dismiss filed by the Medical
Defendants wherein they argued that plaintiff’s claims were time-barred. According to the state court record on file
with this court (Doc. No. 11), this motion was set to be decided on or after May 7, 2013.
Bayer has not formally moved to sever; however, as discussed herein, Fed. R. Civ. P. 21 permits the Court to sever
parties and/or claims “on its own[.]”
On the same day it removed the case, Bayer also filed its motion to stay. Bayer is
of the view that it is only a matter of time before this case is transferred to the Southern District
of New York to join MDL No. 2434.5
On May 3, 2013 at 11:52 a.m., plaintiff filed her motion to remand (Doc. No. 5),
arguing that whether the Medical Defendants were properly joined and whether her claims are
time-barred are questions for this Court. A few hours later, at 2:36 p.m., plaintiff filed her second
amended complaint in the state court. This version of the complaint adds no new parties or
claims, but merely adds to, and clarifies, some of the factual allegations relating to plaintiff’s
discovery of her claims.6
Plaintiff opposes defendant’s motion to stay, arguing that she will be harmed by a
stay because she will not have the opportunity to have a ruling on her motion to remand, on
which she believes she is certain to prevail on the basis of lack of complete diversity.
The “general rule is for federal courts to defer ruling on pending motions to
remand in MDL litigation until after the [JPML] has transferred the case.” Jackson v. Johnson &
Johnson, Inc., No. 01-2113, 2001 WL 34048067, at *6 (W.D. Tenn. April 3, 2001). As noted by
Bayer in its motion to stay, “[n]umerous federal courts across the country have . . . stayed cases
pending transfer to the MDL, where the plaintiff has filed a motion to remand and/or opposed
transfer.” (Doc. No. 10 at 292, citing cases.)
The Court has examined the docket of MDL No. 2434 and has determined that, although this case was
conditionally transferred to the Southern District of New York on May 9, 2013, plaintiff promptly opposed the
transfer. As a result, a briefing schedule has been set for filing a motion to vacate the conditional transfer order.
Plaintiff’s motion is due before the MDL Panel by May 29, 2013, and a response is due on June 19, 2013.
On May 3, 2013, plaintiff also filed in state court her opposition to the motion to dismiss that was pending there.
In this case, a close examination of the second amended complaint reveals that
there are no product liability claims against the Medical Defendants and there are nothing but
product liability claims against Bayer. Therefore, the Court is faced with competing interests:
plaintiff and the Medical Defendants want a resolution of the timeliness issue relating to the state
tort claims (and plaintiff would apparently prefer that this determination, based entirely on state
law, be made by the state court), whereas Bayer wants to stay all proceedings until the JPML
decides whether to transfer the case for inclusion in the MDL action before the Southern District
of New York (and buttresses its argument in favor of this course of action by arguing that
removal was proper because the Medical Defendants were fraudulently joined).7
Apparently in response to the portion of the removal petition that argues for
severability, plaintiff asserts in her motion to remand that the claims against the Medical
Defendants are not severable from those of Bayer because she “properly alleged both product
liability and medical malpractice/fraudulent concealment claims” and “has a right to pursue any
and all potentially culpable parties.” (Doc. No. 5 at 225.) She asserts that she has pleaded
“multiple and alternative theories of recovery[,]” as permitted by “[b]oth state and federal law[.]”
(Id., n. 4.)
This Court is of the view that all interests can be addressed by: (1) severing
Counts I, II and III of the Second Amended Complaint and remanding those claims, which are
entirely between Ohio residents and entirely dependent upon state law, to the Stark County Court
of Common Pleas; and (2) retaining jurisdiction over Counts IV, V, VI, and VII, as claims
The assertion that the Medical Defendants were fraudulently joined to defeat diversity jurisdiction is arguably
lacking in logic, given that the Medical Defendants were the original defendants and Bayer was the defendant that
was later joined.
between diverse citizens, but staying all further proceedings in this Court pending the JPML’s
determination regarding transfer.
As authority for this course of action, the Court points to Fed. R. Civ. P. 19 and
21 and DeGidio v. Centocor, Inc., No. 3:09CV721, 2009 WL 1867676 (N.D. Ohio July 8, 2009).
In DeGidio, another judge of this court addressed a removed complaint similar to the one in the
instant action. There plaintiff sued certain drug company defendants and certain healthcare
defendants. Plaintiff moved to remand due to lack of complete diversity. The district court,
applying Rules 19 and 21, severed claims against the healthcare defendants, after concluding that
they were dispensable parties. Id. at *2, citing Newman-Green, Inc. v. Alfonso-Larrain, 490 U.S.
826, 832 (1989) (“[I]t is well settled that Rule 21 invests district courts with authority to allow a
dispensable nondiverse party to be dropped at any time, even after judgment has been
rendered.”); Soberay Mach. & Equip. Co. v. MRF Ltd., 181 F.3d 759, 763 (6th Cir. 1999) (“[I]t
is appropriate to drop a nondiverse and dispensable party from litigation in order to achieve
diversity.”); Safeco Ins. Co. v. City of White House, 36 F.3d 540, 545 (6th Cir. 1994) (“Rule 21
of the Federal Rules of Civil Procedure permits a district court to retain diversity jurisdiction
over a case by dropping a nondiverse party if that party’s presence in the action is not required
under Federal Rule of Civil Procedure 19.”)
Determining whether the Medical Defendants are dispensable parties, this Court
follows a two-step process. DeGedio, 2009 WL 1867676, at *3. First, the Court assesses
whether, under Rule 19(a), these parties are necessary for just adjudication. A party is necessary
if, in the party’s absence, (1) the court cannot accord complete relief among existing parties; (2)
the party’s ability to protects its interests would be impaired or impeded; or (3) remaining parties
would be exposed to substantial risk of incurring double or inconsistent obligations. Id. (citing
Safeco Ins. Co., 36 F.3d at 546). If these parties are necessary, then the Court moves to the
second step, that is, deciding whether they are dispensable under Rule 19(b). Factors to consider
are: (1) the extent to which a judgment rendered in their absence might prejudice them or the
other parties; (1) the extent to which any prejudice could be lessened or avoided; (3) whether a
judgment rendered in their absence would be adequate; and (4) whether the plaintiff would have
an adequate remedy if the action were dismissed for non-joinder.
In the instant case, as in DeGidio, the Medical Defendants are neither necessary
nor indispensable because resolution of the tort claims against them would not resolve the
products liability claims against Bayer, and vice versa. As in DeGidio, the claims “involve
different legal standards and different factual allegations.” DeGidio, 2009 WL 1867676, at *3;
see also Todd v. Merrill Dow Pharms., Inc., 942 F.2d 1173, 1176 (7th Cir. 1991) (finding the
physician who ordered the injection of a drug “not indispensable” in a products liability case
against a drug manufacturer); Phillips v. Knoll Pharm. Co., No. 5:03CV8044 (N.D. Ohio
September 4, 2003) (Gwin, J.) (dropping physician defendants under Rule 21 to perfect diversity
jurisdiction after finding them to be dispensable parties); Williams v. Knoll Pharm. Co.,
No.5:03CV8030 (N.D. Ohio July 11, 2003) (Gwin, J.) (dismissing nondiverse healthcare
defendants to retain diversity of citizenship over pharmaceutical defendant).8
For the reasons discussed above, the Court sua sponte severs Counts I, II and III
of the Second Amended Complaint, which are entirely between Ohio residents and entirely
As also noted in DeGidio, the mere fact that plaintiff will be maintaining two lawsuits is not unduly or unfairly
prejudicial, and does not require a finding that the Medical Defendants are necessary or dispensable parties.
DeGidio, 2009 WL 1867676, at * 4 (citing PaineWebber, Inc. v. Cohen, 276 F.3d 197, 204 (6th Cir. 2001)).
dependent upon state law, and remands those claims to the Stark County Court of Common
Pleas. To that extent, plaintiff’s motion to remand (Doc. No. 5) is GRANTED.
Further, the Court retains jurisdiction over Counts IV, V, VI, and VII, as claims
between diverse citizens, and stays all further proceedings in this Court pending the JPML’s
determination regarding transfer. To that extent, defendant Bayer’s motion to stay is
Both motions to dismiss (Doc. Nos. 8 and 9) are DENIED WITHOUT
IT IS SO ORDERED.
Dated: May 29, 2013
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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