Removal-rama continues.  Art (if that is what you can call blogposting) mimics life. We have not just been blogging about removal cases lately, we’ve also been removing cases to federal court with startling frequency. And it’s been working. Twice, even with a removal basis that might be characterized as a jump ball, plaintiffs have not even bothered to file for remand to state court. That outcome almost certainly redounds to the benefit of our client. The lesson? Be brave.  It also helps to be right. 

But sometimes even being right might not be enough. In Brown v. Johnson & Johnson, 2025 U.S. Dist. LEXIS 231014, 2025 WL 3268408 (N.D. Cal. Nov. 24, 2025), the federal court incorrectly entered a remand order based on rejection of a “fraudulent joinder” argument. The plaintiff sued one of many related entities to defeat diversity and evidently picked the wrong one.  But the court was not sure it was the wrong entity, and, in any event, it looked like some other unsued entities might not be wrong. The plaintiff might be able to add those nondiverse parties, and somehow that concatenation of mights resulted in the case getting remanded. If that concatenation sounds a little sloppy, maybe even crazy, come sit right down beside us. 

The plaintiffs in Brown brought a lawsuit in a notoriously plaintiff-friendly jurisdiction, Alameda County, California, alleging that certain medications caused them to develop breast cancer.  The defendants included several drug maker defendants, all non-California citizens. To defeat diversity, the plaintiffs also sued Kaiser Permanente International. Kaiser is a California citizen, and its presence was the plaintiffs’ basis for avoiding federal court.  The defendants did not buy that basis, and removed the case to the Northern Disrict of California.  The defendants argued that Kaiser was solely a pharmacy, and relevant state law (California) seemed pretty clear that a pharmacy has a duty only to accurately fill prescriptions, and not to warn about the general risks of drugs.  Thus, Kaiser had been fraudulently joined, it should be dropped from the case, and the result would be complete diversity and federal jurisdiction. 

The plaintiffs disagreed. They filed a motion to remand the case to Alameda County. The plaintiffs argued that Kaiser insured them, treated them, and distributed the offending medications. Therefore, according to the plaintiffs, they had valid (or at least colorable) claims against Kaiser for strict liability failure to warn, general negligence, and negligent failure to warn. 

By now, we all know that the test for fraudulent joinder is tough, but that did not stop the Brown court from reminding us that “the question Is whether defendants have demonstrated that plaintiff could not possibly prevail on her claims against the allegedly fraudulently joined defendant.”  The burden is on the defense, and it is a heavy burden.

That being said, even if Kaiser is a large entity that does many things, it does not seem to have done the things that would make it liable for the claims alleged.  The plaintiffs seem to have been mistaken when they invited this partial Kaiser entity to the party. It is an understandable mistake, as there are several Kaiser entities. 

Did the Brown court decide that there might be a valid cause of action against the Kaiser entity that was actually sued?  Not really. The court did not even suggest that the failure to warn claims might apply to Kaiser.  But it hinted that a general negligence claim might stick. How?  Why?  We do not know. Instead, the court was won over by the plaintiffs’ that “even if” they cannot recover against that particular Kaiser entity, “they intend to amend their complaints to add other” similarly named entities.  Somehow, that possible amendment made the joinder of the Kaiser pharmacy non-fraudulent. Huh? Or to put things in rarefied legalese, so what? Isn’t the rule for removal purposes that the date of removal freezes the pleadings? That should mean that a promise or threat or idle speculation about filing an amended complaint in the future against some other defendant shouldn’t be enough to support remand.  Granted, the recent SCOTUS case of Royal Canin helped federal-fearing plaintiffs considerably by holding that post-removal amendments by plaintiffs could make diversity go away.  But at least in Royal Canin the plaintiff actually did the thing that obliterated diversity. In Brown, all we get is wish-casting. Mind you, we hate the holding in Royal Calin.  And now we hate the ruling in Brown. Even if plaintiffs are allowed to amend to defeat diversity in some circumstances, they had not done that in the Brown case.  It was the district court that did all the work — for bad reasons and in service of a bad result.  

(It’s almost as bad as a prosecutor getting an indictment by promising the grand jury that more and better evidence would be presented at trial. But that could never happen in our fair-minded republic — could it?)