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We’ve started thinking that it might be fun to run for a seat on our county’s (elected) trial court bench, when we retire from our law firm.  (Our current campaign is for our township’s school board.  If we succeed, our term will take us just about to the point at which we plan to retire).  Cases like today’s strengthen our resolve.  In a world filled with COVID, mass shootings, melting glaciers, and MAGA rumblings, a touch of the absurd goes a long way to pass the time.  We confess that we looked to see if the plaintiff in today’s case was proceeding pro se – that’s how little sense any of it made.  And we kept thinking how much fun we would have had writing the opinion. 

In Atoe v. Orthopediatric United States Distrib. Corp., 2023 U.S. Dist. LEXIS 26983 (W.D. La. Jan. 26, 2023), the plaintiff filed suit in state court, alleging claims on behalf of her minor child for injuries she alleged the child sustained as a result of an orthopedic surgical procedure she underwent.  The plaintiff claimed that the child’s injuries were caused by a defective medical device and by medical malpractice, and she sued the hospital and a doctor along with defendants in the device’s supply chain.  At about the same time, she went before a medical review panel that considered her medical malpractice claims against the medical defendants named in her suit along with one other doctor.  Once the panel was convened, the plaintiff dismissed the medical defendants from the lawsuit, “presumably,” according to the court, “to allow for exhaustion of the claims against those malpractice defendants through the medical review panel process.”  Atoe, 2023 U.S. Dist. Lexis 26983 at *1-2.  That’s how medical malpractice works in Louisiana.  The remaining defendants removed the case to federal court, asserting diversity jurisdiction.  The defendants filed their answer in federal court, and the court entered a scheduling order that included a trial date. 

Meanwhile, the medical review panel rendered its decision, so the plaintiff was able to file suit on her previously-dismissed malpractice claims against the hospital and the doctors.  But she did not amend her complaint to add those defendants; instead, she filed a separate suit in state court against them.  Once that suit was filed, the plaintiff moved to remand the federal proceeding (against the product liability defendants), arguing that the court no longer had diversity jurisdiction because of the separate lawsuit.  We kid you not. 

The court commented: 

Plaintiffs in cases that involve products liability and medical malpractice often file suit against the products defendants first.  Those defendants are usually from out of state, so the case is filed in or removed to federal court based on diversity jurisdiction.  After the medical review process is completed, the plaintiff will seek leave to amend the complaint and add the malpractice defendants to the case.  That often results in the destruction of diversity because the plaintiff/patient and physician/hospital are typically citizens of the same state.  But that is not the case here. 

Id. at *4.  In this case, even joinder would not have destroyed diversity, because complete diversity existed between the plaintiff and the medical defendants.  But that is neither here nor there.  Obviously, the malpractice defendants, in their own state court proceeding, could not destroy diversity jurisdiction in the federal lawsuit, because IT WASN’T THE SAME CASE.  The court postulated that, given the diversity between the plaintiff and the malpractice defendants, the plaintiff was likely thinking of the forum defendant rule.  One of the malpractice defendants was a Louisiana resident, so the case would not have been removable while that “forum defendant” remained joined.  But that individual’s citizenship in the forum state was not relevant BECAUSE HE WAS NOT A PARTY TO THE FEDERAL LAWSUIT.  Nor did the court credit the plaintiff’s argument that it would be more efficient for the court to remand the federal case so both cases could be litigated together in state court.  As the court emphasized, concerns of judicial efficiency “do not allow for remand,” as “[f]ederal courts have a virtually unflagging obligation to exercise their jurisdiction.”  Id. at *6 (internal punctuation and citations omitted.).  Finally, the plaintiff could not take advantage of “abstention” to seek a stay the federal case, because that doctrine applies only to cases involving the same parties and the same issues.  Here, the state and federal complaints named different parties and asserted different legal theories.

To this point, the court was fairly restrained, though we could imagine the inevitable eye rolling and chuckling.  To wit, the court stated, “Plaintiff can file all the additional lawsuits she wants in state court and it will never destroy diversity in this case.”  Id. at *7.  Why?  BECAUSE THEY WILL NOT BE THIS CASE – THEY WILL BE SEPARATE LAWSUITS.  The court continued, “If plaintiff believed that it was more efficient to try the products liability and medical malpractice claims in a single forum, she should have attempted to join the medical malpractice defendants in this case.”  Id, BUT SHE DIDN’T!!

Concluding that “none of the arguments made by Plaintiff require[s] or allow[s] for remand,” the court (obviously) denied the motion.  We got a little lift from reading Atoe – not sure what that says about us.  But we’ll take it.  Stay safe out there.