Martinson v. American Medical Systems, Inc.

Filing 19

ORDER OF REMAND GRANTING 9 MOTION to Remand. This case is REMANDED to the 334th Judicial District Court of Harris County, Texas. Case terminated on 5/23/2014.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JULIE MARTINSON , et al.,
Plaintiffs,
v.
TOTAL PETROCHEMICALS & REFINING USA,
INC. & AMERICAN MEDICAL SYSTEMS, INC.,
Defendants.

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CIVIL ACTION H-14-555

MEMORANDUM OPINION AND O RDER
Pending before the court is a motion to remand filed by plaintiffs Julie Martinson, et al. (the
“plaintiffs”). Dkt. 9. After considering the parties’ arguments and the applicable law, the motion to
remand (Dkt. 9) is GRANTED.
BACKGROUND
Thirty-four adult female plaintiffs allege injuries from the surgical implantation of the Sparc
Sling (“Sparc”), a transvaginal mesh product sold by defendant American Medical Systems, Inc.
(“AMS”). Dkt. 1, Ex. A (original petition) at 5 ¶¶ 21, 59. The Sparc is marketed as a permanent
medical device for the treatment of pelvic organ prolapse and stress urinary incontinence. Id. at 10
¶ 60. The device is manufactured with multiple components, including polypropylene resin. Id. at
10 ¶ 65. This substance is produced by defendant Total Petrochemicals and Refining USA, Inc.
(“Total”) at its polypropylene facility in La Porte, Texas. Id. at 10–11 ¶ 66. Plaintiffs claim that their
injuries arising from the Sparc implantation were due, at least in part, from the polypropylene’s effects
on their bodies, as they allege polypropylene is incompatible with human tissue. Id. at 11 ¶ 71.
Plaintiffs assert claims against the defendants for negligence, breach of warranty, and products liability
for failure to warn and manufacturing and design defects. Id. at 18–26.

The parties are not completely diverse: AMS is a citizen of Minnesota and Delaware; Total
is a citizen of Delaware and Texas; and plaintiffs are citizens of various states, including five Texas
citizens and six Minnesota citizens. Id. at 5–9 ¶¶ 21–57; Dkt. 11 (AMS response to order concerning
removal) at 1–3. AMS filed a notice of removal on diversity grounds, acknowledging that the parties
to the original complaint are not diverse. Dkt. 1 (notice of removal). However, AMS argued that its
right to removal remained intact based on two theories: (1) Total’s Texas citizenship should be
disregarded because plaintiffs have no reasonable basis for recovery against Total; and (2) the
Minnesota plaintiffs were fraudulently misjoined in this case, and their citizenship should also be
ignored for diversity purposes. Id. at 4–14 ¶¶ 16–55. If the citizenship of Total and the Minnesota
plaintiffs is disregarded, the parties will be completely diverse and remand should be denied on
diversity grounds. But conversely there is no dispute that if either Total or the Minnesota plaintiffs
are properly joined in this case, complete diversity is destroyed and the court lacks jurisdiction. The
court will limit its analysis to the potential misjoinder of the Minnesota plaintiffs because it finds that
analysis dispositive.
ANALYSIS
To establish subject-matter jurisdiction predicated on diversity, complete diversity of
citizenship must exist among the parties, and the amount in controversy must exceed $75,000.00. 28
U.S.C. § 1332. A case may be removed despite a non-diverse defendant if that defendant was joined
improperly, i.e., without a legal basis to do so. Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 542
(5th Cir. 2004). As the removing party, the defendant bears the heavy burden of demonstrating
improper joinder. Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003). “Merely to traverse the
allegations upon which the liability of the resident defendant is rested, or to apply the epithet
‘[improper]’ to the joinder, will not suffice: the showing must be such as compels the conclusion that
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the joinder is without right.” Chesapeake & O.R. Co. v. Cockrell, 232 U.S. 146, 152, 34 S. Ct. 278
(1914); see also Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir. 2004).
A defendant normally establishes improper joinder in one of two ways: “‘(1) actual fraud in
the pleading of jurisdictional facts, or (2) inability of the plaintiffs to establish a cause of action against
the non-diverse party in state court.’” Smallwood, 385 F.3d at 573 (quoting Travis, 326 F.3d at
646–47). But as to the Minnesota plaintiffs, AMS makes neither argument. Rather, relying upon
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)), AMS argues that a third type of
improper joinder has occurred—fraudulent misjoinder. Dkt. 17 at 4–9; see also In re Benjamin Moore
& Co., 309 F.3d 296, 298 (5th Cir. 2002) (stating, but not holding, that fraudulent misjoinder of
plaintiffs “should not be allowed to defeat diversity jurisdiction”). AMS argues that the claims of the
plaintiffs, including those from Minnesota, do not arise out of the same transaction or occurrence or
series of transactions or occurrences as required for proper joinder under the rules, because the only
commonality among the plaintiffs is the implantation of a common device, the Sparc. Id. at 6. All
34 plaintiffs’ implants were performed at different times, by different doctors, at different hospitals
and clinics around the country over a span of nine years. Id. AMS contends that this general lack of
commonality supports an egregious misjoinder finding and is a reason to disregard the Minnesota
plaintiffs’ citizenship in the jurisdictional analysis. Id. at 6–9. The Benjamin Moore court explained
that federal jurisdiction may be present despite a facial lack of diversity if non-diverse plaintiffs are
fraudulently misjoined and therefore irrelevant to a citizenship review. Benjamin Moore, 309 F.3d
at 298 (citing Tapscott and describing that court as holding that “misjoinder of plaintiffs should not
be allowed to defeat diversity jurisdiction”).

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While Benjamin Moore did not expressly adopt the Tapscott analysis, the court indicated its
agreement with that decision, albeit in dicta. Id. Further, numerous district courts in the circuit have
applied Tapscott, with some assuming, without deciding, that fraudulent misjoinder is a “third possible
ground to support a finding of improper joinder.” Tex. Instruments, Inc. v. Citigroup Global Mkts.,
Inc., 266 F.R.D. 143, 147 (N.D. Tex. 2010) (citing cases). This court will make the same assumption
for purposes of the pending motion to remand.
Courts in this district and others in the Fifth Circuit ask two conjunctive questions in the
fraudulent misjoinder analysis: (1) has one party been misjoined with another party in violation of the
applicable state’s joinder rules;1 and (2) is any misjoinder sufficiently “egregious” to rise to the level
of a fraudulent misjoinder? See Centaurus Unity v. Lexington Ins. Co., 766 F. Supp. 2d 780, 789–90
(S.D. Tex. 2011); Tex. Instruments, 266 F.R.D. at 147–48. Under Texas Rule of Civil Procedure
40(a), plaintiffs may be joined in a single case “if they assert any right to relief jointly, severally, or
in the alternative in respect of or arising out of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or fact common to all of them will arise in the
action.” TEX . R. CIV . P. 40(a). “Texas Rule 40 is interpreted in light of a state policy that encourages
broad joinder of multiple parties in the same action.” Tex. Instruments, 266 F.R.D. at 148–49 (citing
In re E.L.P., 636 S.W.2d 579, 581 (Tex. App.—San Antonio 1982, no writ)).
But, as stated above, even when a party has been misjoined procedurally under state law, a
federal court may not ignore that party for purposes of determining a federal court’s diversity
jurisdiction unless the misjoinder is “egregious,” i.e., if the misjoinder is grossly improper and without

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The Fifth Circuit has not decided whether state or federal joinder rules apply in determining whether there has
been fraudulent misjoinder. This court applies state joinder law because the allegations of plaintiff’s misconduct depend
on whether plaintiffs fraudulently misjoined parties upon filing suit in state court prior to removal. See Wells Fargo Bank,
N.A. v. Am. Gen. Life Ins. Co., 670 F. Supp. 2d 555, 563 (N.D. Tex. 2009); Centaurus, 766 F. Supp. 2d at 789 n.27.

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any arguable basis other than to defeat diversity. Tapscott, 77 F.3d at 1360 (misjoinder “bordering
on a sham” is sufficient to permit court to ignore non-diverse defendant); see also Bright v. No Cuts
Inc., No. Civ. A-03-640, 2003 WL 22434232, at *4 (E.D. La. Oct. 27, 2003) (“Courts analyzing
fraudulent misjoinder claims under Tapscott have consistently noted that mere misjoinder does not
constitute fraudulent misjoinder.”) (collecting cases) (emphasis in original). In Tapscott, for example,
one set of plaintiffs (the “automobile plaintiffs”) sued one group of defendants (the “automobile
defendants”) over an alleged breach of automobile service contracts. Tapscott, 77 F.3d at 1355. The
automobile plaintiffs subsequently amended the complaint to join the additional claims of a second
set of plaintiffs (the “retail plaintiffs”) brought against a second group of defendants (the “retail
defendants”) regarding retail-product service contracts. Id. The claims were entirely distinct, and
although all retail defendants were diverse from the retail plaintiffs, one automobile defendant was
not diverse from certain retail plaintiffs. Id. at 1359–60. The Eleventh Circuit agreed with the district
court that in such circumstances, when two distinct suits are joined for purposes of destroying
diversity, the misjoinder is so egregious that severance is warranted and citizenship of misjoined
parties may be disregarded. Id. at 1360. This showing of “egregiousness” presents a high bar for
defendants, and as a result Tapscott’s fraudulent misjoinder analysis has not often been successful in
this circuit. Indeed, “the overwhelming majority of those cases have been remanded to state court,
often on the ground that even if the parties have been misjoined, such misjoinder is not so egregious
as to be fraudulent.” Tex. Instruments, 266 F.R.D. at 152 (collecting cases).
Here, all 34 plaintiffs were implanted with the Sparc device at different times, by different
doctors, at different facilities throughout the country. Dkt. 17 at 6. AMS argues that these distinctions
mean that the plaintiffs’ claims do not arise out of the same “transaction or occurrence” or “series of
transactions or occurrences.” Id. at 6–9. Plaintiffs respond that AMS’s analysis is “simplistic” and
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ignores the fact that the same Sparc device caused all of their injuries. Dkt. 9 at 19. Conflicting case
law supports both sides, and this court is mindful that the Texas joinder rule is generally interpreted
in favor of joining multiple, similarly-situated parties in one action when a logical relationship
connects their claims. However, the court defers the determination of misjoinder to the state court
because it finds, in the second stage of the analysis, that any misjoinder is not so “egregious” as to
permit disregarding certain plaintiffs’ Minnesota citizenship.2
Assuming that the requirements of Texas Rule 40 have not been met in this case, the court
cannot ignore the Minnesota plaintiffs’ joinder unless their claims are“wholly distinct” and have “no
real connection” to the claims asserted by the other plaintiffs. Tapscott, 77 F.3d at 1360. Here, the
claims brought by the plaintiffs have a sufficient nexus among them, and they do not represent the type
of “egregious” misjoinder, “bordering on a sham,” that is disallowed for purposes of determining
fraudulent misjoinder in federal court. Texas Instruments, 266 F.R.D. at 153 (“Even assuming for the
sake of argument that Morgan Stanley has been misjoined, that misjoinder is not so egregious as to
be fraudulent.”). The plaintiffs were all implanted with exactly the same device, and their claims will
share several common questions of law and fact in their causes of action. This type of factual and
legal connection is real and prevents the court from finding that the joinder borders “on a sham.”
Further, the court notes that defendants’ principal cases supporting a contrary finding are
distinguishable. See Dkt. 17 at 6–7; In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563, 651–54
(S.D. Tex. 2005); In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig.,
294 F. Supp. 2d 667, 679 (E.D. Pa. 2003); In re Rezulin Prods. Liab. Litig., 168 F. Supp. 2d 136,

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The court stresses that it has assumed, without deciding, the existence of procedural misjoinder in this case.
The court does not hold that the Minnesota plaintiffs have been misjoined under Texas Rule 40. That question is properly
left to the Texas state court to decide in the first instance.

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147–48 (S.D.N.Y. 2001); In re Fosamax (Alendronate Sodium) Prods. Liab. Litig., MDL No. 2243,
2012 WL 1118780, at *4 (D.N.J. Apr. 3, 2012). Unlike this case in which the same Sparc device is
common to all plaintiffs, in Silica, Diet Drugs, and Fosamax, each court found egregious misjoinder
after noting that the plaintiffs’ claims did not arise from a single product or drug, manufactured by a
single defendant, that produced the plaintiffs’ injuries. See Silica, 398 F. Supp. 2d at 652–53 (finding
egregious misjoinder of claims by plaintiffs who were exposed to silica in different jobs with different
equipment); Diet Drugs, 294 F. Supp. 2d at 679 (holding under Georgia joinder law that the New
Jersey plaintiffs were egregiously misjoined when they alleged only that they took “Redux, Pondimin
and/or phentermine—not necessarily the same combination of drugs or for the same amount of time”);
Fosamax, 2012 WL 1118780, at *4 (finding egregious misjoinder based, in part, on the fact that
plaintiffs broadly asserted claims against multiple brand and generic manufacturers of Fosamax and/or
alendronate sodium, without regard to dosage or length of pharmacological treatment).
Further, in Rezulin, Judge Kaplan addressed eight pending actions amoung hundreds seeking
recovery for injuries allegedly resulting from the use of Rezulin, a prescription diabetes drug
manufactured by Warner-Lambert Company. Rezulin, 168 F. Supp. 2d at 138. In one of the
consolidated cases, plaintiffs alleging claims against the drug manufacturer joined the claims of Ouida
Dupree (“Dupree”), a plaintiff who was suing a home health care provider for negligent administration
of Rezulin after its removal from the market. Id. at 144–45. While Dupree also asserted claims in
common with other plaintiffs against Warner-Lambert, the court found misjoinder due to a general
lack of commonality, including a failure of allegations relating to receiving Rezulin from the same
source or that the plaintiffs were exposed for similar periods of time. Id. at 146. Judge Kaplan denied
remand, but he notably declined to apply the “egregious” prong of the Tapscott analysis. Id. at 147–48
(“While aware that several courts have applied Tapscott’s egregiousness standard when considering
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misjoinder of plaintiffs in the context of remand petitions, this Court respectfully takes another
path.”). He suggested that if he had, the misjoinder would not have reached that level because
“Dupree’s claims have at least an empirical, if not a transactional, relationship to the claims of all the
other plaintiffs.” Id. at 147.
Like the Rezulin plaintiffs, the Minnesota plaintiffs’ claims in this case bear at least an
empirical relationship that is not “wholly distinct” from those of the other plaintiffs. And even though
Judge Kaplan declined to do so, this court follows other courts in this district and circuit that employ
the “egregiousness” prong of the jurisdictional analysis. Any misjoinder in this case is not egregious,
as that term has been defined in Tapscott and its progeny, and the Minnesota plaintiffs’ citizenship
will not be disregarded when evaluating the propriety of removal. The presence of the Minnesota
plaintiffs destroys complete diversity, as defendant AMS is also a Minnesota citizen, and the court will
remand this case to Texas state court.
CONCLUSION
Plaintiffs’ motion to remand (Dkt. 9) is GRANTED. This case is REMANDED to the 334th
Judicial District Court of Harris County, Texas.
Signed at Houston, Texas on May 23, 2014.

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Gray H. Miller
United States District Judge

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