Geffen v. General Elec. Co.

• Citation: 575 F.Supp.2d 865
• Decision Date: 12 September 2008
• Docket Number: MDL No. 1:08-GD-50212.,CD. No. 2:08-CV-1110-SGL.
• Parties: Priscilla GEFFEN, et al., Plaintiffs, v. GENERAL ELECTRIC COMPANY, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

575 F.Supp.2d 865

Priscilla GEFFEN, et al., Plaintiffs, v. GENERAL ELECTRIC COMPANY, et al., Defendants.

MDL No. 1:08-GD-50212.

CD. No. 2:08-CV-1110-SGL.

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

September 12, 2008.

Christina A. L. Fountain, Jason Edward Ochs, Ramon Rossi LopezLopez McHugh, Newport Beach, CA, for Plaintiffs.

Deborah C. Prosser, Stephanie Achsah Hingle, Kutak Rock, Los Angeles, Heidi L. Levine, Christopher M. Strongosky, DLA Piper US, New York City, for Defendants.

MEMORANDUM OF OPINION AND ORDER ON PLAINTIFFS' MOTION TO REMAND

DAN AARON POLSTER, District Judge.

Pending before the Court is the Motion to Remand and Request For Costs (Including Attorneys' Fees) On Improper Removal filed by Plaintiffs Priscilla and Joel Geffen on March 3, 2008 (ECF No. 13) (as applicable the "Motion to Remand" or the "Request for Costs"). Defendant Mallinckrodt Inc. ("Mallinckrodt") filed a memorandum in opposition to the Motion to Remand (ECF No. 27), to which the Geffens filed a reply (ECF No. 40). For the following reasons, the Motion to Remand is GRANTED in part and DENIED in part.

I. BACKGROUND

This case is one of myriad cases pending before the Court as a result of transfer pursuant to the multi-district litigation entitled In re: Gadolinium-Based Contrast Agents Products Liability Litigation, MDL No.1909, Case No. 1:08-G50000. The plaintiffs in these MDL cases are generally individuals (or estates of deceased individuals) who developed a disease known as Nephrogenic Systemic Fibrosis ("NSF") following the administration of products manufactured and/or sold by one or more of the named defendants in these cases. In the above-captioned case, Priscilla Geffen contracted NSF following at least four different injections of gadolinium-based contrast agents, including OptiMARK, the gadolinium-based contrast agent manufactured by Mallinckrodt. The Geffens allege various product liability claims against Mailinckrodt¹ in their Complaint, which was originally filed in California state court on January 11, 2008.² The Geffens' Complaint also contains medical-malpractice claims against the two physicians who administered the injections, as well as the facility at which the injections were given (collectively the "Medical Defendants"). Notably, the Medical Defendants are all undisputedly California citizens for purposes of the diversity statute, 28 U.S.C. § 1332(a). It is also undisputed that Mallinckrodt is a citizen of both Delaware and Missouri, General Electric Company is a citizen of both New York and Connecticut, GE Healthcare, Inc. is a citizen of both Delaware and New Jersey, and the Geffens are California citizens for diversity purposes.

Mallinckrodt filed its Notice of Removal on February 19, 2008,³ removing the case to the United States District Court for the Central District of California. (ECF No. 1.) The Geffens in turn filed their Motion to Remand on March 3, 2008, seeking to remand the case to Los Angeles Superior Court. (ECF No. 13.) Mallinckrodt filed its brief in opposition to the Motion to Remand on March 18, 2008 (ECF No. 27), to which the Geffens replied with a brief of their own on March 31, 2008 (ECF No. 40). The case was transferred to the undersigned on June 25, 2008 pursuant to a Transfer Order issued by the United States Judicial Panel On Multidistrict Litigation (the "MDL Panel"). (ECF No. 48.) On July 1, 2008, the Geffens filed their First Amended Complaint (ECF No. 49), while on July 8, 2008 the GE Defendants filed their notice of opposition to remand by joining in Mallinckrodt's opposition to the Motion to Remand (ECF No. 50).

In the Notice of Removal and its brief in opposition to remand, Mallinckrodt contends that removal to federal court is proper in this case notwithstanding the presence of non-diverse parties in the form of the Medical Defendants. According to Mallinckrodt's argument, the Medical Defendants are "misjoined" (as supposedly distinguished from fraudulently joined) because the claims against the Medical Defendants and the claims against the Manufacturer Defendants are based on independent factual and legal theories. Therefore, the argument goes, the Court should either ignore the Medical Defendants' presence in the case for removal jurisdiction purposes, or sever and remand solely the claims against the Medical Defendants, while maintaining federal jurisdiction over the product liability claims against the Pharmaceutical Defendants.

The Geffens, in their Motion to Remand and reply brief argue that the federal district courts in California have uniformly rejected the theory of "procedural misjoinder." Moreover, the Geffens assert, the Medical Defendants are properly joined under California's liberal joinder law, and thus the case must be remanded regardless of whether Mallinckrodt's misjoinder theory is a valid one.

II. LAW AND ANALYSIS

A. Applicable Law of Removal, Remand, and Jurisdiction

It is well-settled law that "removal of a state court action under § 1441 is proper only if the action `originally could have been filed in federal court.'" Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910, 914 (6th Cir.2007) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). This Court has original jurisdiction of all civil actions where the matter in controversy exceeds $ 75,000 and is between citizens of different states. 28 U.S.C. § 1332(a)(1). Diversity jurisdiction requires complete diversity—the citizenship of each plaintiff must be diverse from the citizenship of each defendant. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996); Coyne ex rel. Ohio v. American Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999) (quoting SHR Ltd. Partnership v. Braun, 888 F.2d 455, 456 (6th Cir.1989)). Title 28, U.S.C. § 1447(c) provides that a case removed from state court should be remanded if it appears that it was removed improvidently. A party "`seeking to bring a case into federal court carries the burden of establishing diversity jurisdiction.'" Coyne, 183 F.3d at 493 (quoting Certain Interested Underwriters at Lloyd's London, England v. Layne, 26 F.3d 39, 41 (6th Cir.1994)). See also, Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 948-949 (6th Cir.1994) ("The burden to establish federal jurisdiction in this case is clearly upon the defendants as the removing party.") (citing Gafford v. General Electric Co., 997 F.2d 150, 155 (6th Cir. 1993)). The removal statutes are strictly construed. Alexander, 13 F.3d at 949 (citing Wilson v. U.S. Dep't. of Agriculture, 584 F.2d 137, 142 (6th Cir.1978)).

The Geffens are California citizens, as are all three Medical Defendants. Therefore, complete diversity is lacking on the face of the complaint, and the case is not one over which the Court can exercise jurisdiction.⁴ Despite this facial lack of diversity, Mallinckrodt contends that the Court can ignore this jurisdictional problem based on the "fraudulent misjoinder doctrine." (See ECF No. 1, Defs.' Notice of Removal, 4: ¶ 16.)

B. The Fraudulent Misjoinder Doctrine

Mallinckrodt goes to great lengths to explain that its argument in support of removal and against remand is based not on the doctrine of fraudulent joinder, but on "misjoinder" of the Medical Defendants. According to Mallinckrodt's theory, the medical malpractice claims asserted against the Medical Defendants are improperly joined with the products-liability claims against the Manufacturer Defendants, because the medical malpractice claims are factually and legally distinct from the products-liability claims. Accordingly, Mallinckrodt argues, the claims against the Medical Defendants should be severed from the claims against the Pharmaceutical Defendants, with the Court retaining jurisdiction over the products-liability claims but dismissing or remanding the medical malpractice claims.

Courts have referred to this judicially-created doctrine as "fraudulent misjoinder," or "procedural misjoinder." See, e.g., Bird v. Carteret Mortg. Corp., No. 2:06-CV-588, 2007 WL 894841, *3, 2007 U.S. Dist. LEXIS 24872, *7-13 (S.D.Ohio Mar. 22, 2007) (discussing in detail the doctrine of "fraudulent misjoinder"); Asher v. 3M, No. 04-CV-522-KKC, 2007 WL 894841, *4, 2005 U.S. Dist. LEXIS 42266, *27-37 (E.D.Ky. June 30, 2005) (same); Osborn v. Metro. Life Ins. Co., 341 F.Supp.2d 1123, 1127-29 (E.D.Cal.2004) (initially referring to the doctrine as "procedural misjoinder" but generally using the term "fraudulent misjoinder" thereafter). "`Fraudulent joinder' of defendants addresses the viability of claims against a defendant. `Fraudulent misjoinder,' on the other hand, addresses the joinder of the claims rather than their viability." Asher, No. 04-CV-522, 2007 WL 894841, *4, 2005 U.S. Dist. LEXIS 42266, at *28.

The fraudulent misjoinder doctrine was first articulated by the Eleventh Circuit in Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir.1996), abrogated on other grounds by Cohen v. Office Depot, 204 F.3d 1069 (11th Cir.2000). Fraudulent misjoinder occurs when a plaintiff attempts to defeat removal by misjoining the unrelated claims of nondiverse party plaintiffs against a defendant, or as in the instant case, by misjoining unrelated claims of a plaintiff against non-diverse party defendants. In other words, "[w]ith fraudulent misjoinder, the charge is that the joined claims are unrelated and have been improperly joined in one action to destroy diversity." Asher, 2005 WL 1593941, at *4, 2005 U.S. Dist. LEXIS 42266, at *28 (citing Lyons v. Lutheran Hospital of Ind., No. 1:04-cv-0728-DFH-VSS, 2004 U.S. Dist. LEXIS 20255, 2004 WL 2272203, at *4 (S.D.Ind.2004)).

Notably, only one other Court of Appeals—the Fifth Circuit—has adopted the fraudulent misjoinder doctrine, see In re Benjamin Moore & Co., 309 F.3d 296 (5th Cir.2002), although "the endorsement given to the doctrine by the Fifth Circuit is somewhat open to question." Bir...