Harper v. Depuy Orthopaedics, Inc., 072511 OHNDC, 1:11 dp 20522

Docket Nº1:11 dp 20522
Opinion JudgeDAVID A. KATZ, District Judge.
Party NameMICHAEL HARPER, Plaintiff, v. DEPUY ORTHOPAEDICS, INC., et al., Defendant.
Case DateJuly 25, 2011
CourtUnited States District Courts, 6th Circuit, Northern District of Ohio

MICHAEL HARPER, Plaintiff,

v.

DEPUY ORTHOPAEDICS, INC., et al., Defendant.

No. 1:11 dp 20522

United States District Court, N.D. Ohio, Western Division.

July 25, 2011

MEMORANDUM OPINION

DAVID A. KATZ, District Judge.

This matter is before the Court on Michael Harper's ("Plaintiff") motion to remand (Doc. 10) and DePuy Orthopedics, Inc., Johnson & Johnson, and Clint Spears' (collectively "Defendants") opposition thereto. (Doc. 15). For the following reasons, the Court has jurisdiction over this matter and therefore denies the motion to remand. See 28 U.S.C. § 1332.

I. Background

Plaintiff, an Alabama resident, filed his complaint in the circuit court of Montgomery County, Alabama on November 24, 2010 against out-of-state hip manufacturers, DePuy and its parent company, Johnson & Johnson. (Doc. 1-1 at 1-2). Also named as a defendant is Clint Spears, who is a pharmaceutical sales representative for DePuy and an Alabama resident (the "resident defendant"). Id. at ¶5. Plaintiff's complaint arises from alleged hip implant complications. He has filed an action for damages "as a direct and proximate result of Defendants' wrongful conduct in connection with the development, design, testing, manufacture, distribution, and sale of the DePuy [ASR Hip Implant]." Id. at ¶1.

Defendants removed the case to the United States District Court for the Middle District of Alabama on December 22, 2010, based on the theory that the Court has diversity jurisdiction. (Doc. 1). Then, on December 27, 2010, Defendants filed a motion to stay proceedings pending transfer to MDL and also requested an extension of time to answer or otherwise respond to Plaintiff's Complaint. (Doc. 3). That motion was unopposed, and the proceedings were stayed pending transfer to MDL on December 30, 2010. (Doc. 6). Pursuant to 28 U.S.C. § 1407, the Panel on Multidistrict Litigation transferred this action to this Northern District of Ohio on April 27, 2011.1 (Doc. 18).

Plaintiff filed a timely motion to remand (Doc. 10) and brief in support of that motion. (Doc. 11). Plaintiff claims the Court lacks subject matter jurisdiction because Defendants failed to prove the high burden of proof required to show fraudulent joinder. Defendants oppose that motion, and submitted the resident defendant's declaration to support their opposition. (Doc. 15).

II. Standard of Review

Federal courts are courts of limited jurisdiction. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. Ala. 1994). Accordingly, under 28 U.S.C. § 1441(a), a defendant may remove any civil action from state to federal court only if the district courts of the United States have original jurisdiction, both at the time of the original action and when the petition for removal is filed. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987); Fed.R.Civ.P. 19(a). Original jurisdiction exists when the amount in controversy exceeds $75, 000 and there is either a federal question or diversity. 28 U.S.C. § 1441(a), (b). Diversity must be complete, which is to say every plaintiff is diverse from every defendant. Tapscott v. MS Dealer Service Corp., 77 F.3d 1353 (11th Cir. 1996); 28 U.S.C. § 1332. The removing party bears the burden of establishing subject matter jurisdiction. De Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. Ga. 1998).

Following removal to district court, a plaintiff may move to remand the action back to state court within thirty days after the notice of removal is filed. 28 U.S.C. §§ 1446(a) & 1447(c). If the Court lacks subject matter jurisdiction, remand is proper. Id. In light of federalism and comity concerns, federal courts must strictly construe removal jurisdiction and resolve all doubts in favor of remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Burns, 31 F.3d at 1095.

III. Discussion

Upon review of Eleventh Circuit precedent as well as the pleadings, motions, replies, and resident defendant's affidavit, the Court finds Defendants' allegation of fraudulent joinder well taken, and therefore denies Plaintiff's motion to remand.

A. Fraudulent Joinder Standard

A fraudulently joined party cannot defeat a court's subject matter jurisdiction. See Tapscott v. MS Dealer Service Corp., 77 F.3d 1353 (11th Cir. 1996). To prove fraudulent joinder, the removing party bears a "heavy burden" and must show the presence of one of three situations: "(1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court[, ]" De Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. Ga. 1998) (quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. Ga. 1997)); or (3) there is no real connection between the claims against a diverse defendant and those against a non-diverse defendant. Tapscott, 77 F.3d at 1360; Triggs v. John Crump Toyota, 154 F.3d 1284, 1287 (11th Cir. Ala. 1998).

In evaluating Defendants allegations, the Court cannot "weigh the merits" of the plaintiff's claim[s] "beyond determining whether [they are] arguable... under state law." Crowe, 113 F.3d at 1538. That is to say, "if there is even a possibility that a state court would find that the complaint states a cause of action" against the resident defendant, this Court must find that joinder was proper and thus remand the case back to state court. Id.; De Perez, 139 F.3d at 1380. The Plaintiff need not show that he will prevail on a claim or even that he will survive summary judgment in order to defeat an allegation of fraudulent joinder, but must only show that there is a "colorable claim" for recovery or an "arguably reasonable basis" that state law could hold a defendant liable based on the relevant facts. De Perez, 139 F.3d at 1380; Triggs, 154 F.3d at 1287; Crowe, 113 F.3d at 1541-42. The possibility that the resident defendant could be liable "must be reasonable, [and] not merely theoretical." Legg v. Wyeth, 428 F.3d 1317, 1325 n.5 (11th Cir. 2005) (citing Great Plains Trust Co v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 1992)). Moreover, "possible" must mean "more than such a possibility that a designated residence can be hit by a meteor tonight." Id.

In deciding whether a case should be remanded, this Court must "evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff." Crowe, 113 F.3d at 1538; Legg, 428 F.3d at 1323. However, where the non-moving party has presented unrebutted evidence in the form of an affadavit or declaration, the Court will give weight to the sworn testimony rather than the unsupported allegations of the complaint. Legg, 428 F.3d at 1323; Southern v. Pfizer, Inc., 471 F.Supp.2d 1207 (N.D. Ala. 2006).

Here, Defendants allege there is no possibility that Plaintiff can establish any of his seven causes of action2 against the resident defendant. The Court is to consider Plaintiff's pleadings at the time of removal, as well as both party's affidavits and declarations filed with the Court. Crowe, 113 F.3d at 1538. The Court has considered the aforementioned documents in support and in opposition to the motion to remand. As a result, the Court is well informed of the causes of action alleged against the resident defendant, and has determined no possibility exists...

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