Browning v. ALZA Corporation, et al

Filing 14

MEMORANDUM OPINION AND ORDER granting 8 Plaintiff's MOTION for Leave to Amend Complaint to add Dr. Jeffrey S. Trump as a defendant and granting 10 Plaintiff's MOTION to Remand Case to Circuit Court of McDowell County. This case is REMANDED to the Circuit Court of McDowell County, West Virginia. Signed by Senior Judge David A. Faber on 5/20/2009. (certified cc: counsel of record and Clerk, McDowell County Circuit Court) (arb)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD KATHERINE BROWNING, Personal Representative of the ESTATE OF SUSAN COBB, Plaintiff, v. ALZA CORPORATION, et al., Defendants. MEMORANDUM OPINION AND ORDER Pending before the court is plaintiff's motion for leave to amend the complaint to add Dr. Jeffrey S. Trump as a defendant. This motion is GRANTED for the reasons set forth below. Background On March 6, 2009, plaintiff Katherine Browning filed this action in the Circuit Court of McDowell County. In her CIVIL ACTION NO. 1:09-0440

complaint, plaintiff alleges that Susan Cobb's use of a Sandoz fentanyl patch, obtained from a prescription written by Dr. Trump in March 2007, caused her death on March 26, 2007. The following

entities were named as defendants in the lawsuit: ALZA Corporation, the designer and manufacturer of the patch; Sandoz Inc., the marketer and distributor of the patch; Fruth Pharmacy, Inc., also alleged to be a distributor and marketer of the patch; and John Does 1-25. On April 24, 2009, ALZA and Sandoz removed the case to this

court on the basis of diversity of citizenship.

In so doing,

they contended that Fruth Pharmacy had been fraudulently joined to defeat diversity. Dr. Trump was not named as a defendant in the original lawsuit because plaintiff had not yet complied with the notice and other statutory prerequisites under West Virginia law. Plaintiff has now allegedly complied with those prerequisites to filing suit and the instant motion to amend followed. Analysis Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend its pleading "once as a matter of course at any time before a responsive pleading is served . . . [o]therwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." In Foman v. Davis, 371 U.S.

178, 182 (1962), the United States Supreme Court noted that amendment under Rule 15(a) should be freely given absent "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Counsel

for defendants ALZA and Sandoz informed the court that it would not be filing a response in opposition to the motion to amend because it lacked a good faith basis for doing so.

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After a review of the record, the court concludes that there has been no undue delay, bad faith, or dilatory motive on the part of the plaintiff in filing her motion to amend. Furthermore, defendants would not suffer undue prejudice nor is it clear such an amendment would be futile. Therefore, plaintiff

has established that she is entitled under Rule 15(a)to amend the complaint. According to 28 U.S.C. § 1447(e), "[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." The

addition of Dr. Trump would destroy diversity if it is determined that Fruth Pharmacy was fraudulently joined.* However, given the

court's finding that plaintiff has shown good cause to allow amendment of her complaint, the court will remand this case to the Circuit Court of McDowell County. Conclusion Plaintiff's motion to amend is hereby GRANTED and this case is REMANDED to the Circuit Court of McDowell County, West Virginia. The Clerk is directed to send certified copies of this Memorandum Opinion and Order to all counsel of record and to the

Since filing the motion to amend, plaintiff has also filed a motion to remand in which she argues that Fruth Pharmacy was not fraudulently joined. 3

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Clerk of the Circuit Court of McDowell County. IT IS SO ORDERED this 20th day of May, 2009. ENTER: David A. Faber Senior United States District Judge

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