It is December 26, and all is quiet on the home front.  The Drug and Device Law Family exchanged gifts, took long walks, and ate the traditional herb-encrusted rib roast.  The year is nearly over, and having reached a certain age, we can say for sure that time flies when you are having fun.  We hope all our readers are enjoying the holiday season and have enjoyed our daily musings—posted every morning, almost always current, and sometimes even insightful.  Thanks for reading.

Time flew by for the plaintiffs in Miller v. Rush University Medical Center too, but the outcome for them was anything but fun.  In Miller, a federal judge in Illinois struck the plaintiffs’ Fourth Amended Complaint and denied their motion to remand, mainly on the basis that the plaintiffs were obviously trying to destroy diversity.  No. 23-cv-002210, 2025 U.S. Dist. LEXIS 258154 (N.D. Ill. Apr. 14, 2025).  In striking the amended complaint, the district court went so far as to question the plaintiffs’ motive and found that they had mischaracterized the record.

Here is what happened.  The plaintiffs sued several medical providers and medical device manufacturers and distributors following back surgery.  The plaintiffs amended their complaint three times, and the defendants moved to dismiss each time.  Before the court ruled on the last motion to dismiss, the plaintiffs sought leave to amend to file a Fourth Amended Complaint. 

This is where things started to go wrong for the plaintiffs.  To start, they represented that they had learned about new defendants, including an individual “who may share culpability with other named Defendants.”  The problem there is that the plaintiffs represented that this was a recent discovery, but in fact they had known about this individual for nearly a year.  In addition, the plaintiffs represented that the proposed amended complaint “should have no impact on the pending Motions to Dismiss” and urged the court to “freely give leave” to amend under Rule 15(a).  This was not altogether true either.  The plaintiffs disclosed, for the first time, in the Fourth Amended Complaint that the citizenship of the new defendants destroyed diversity.  This would very much “impact” the Motions to Dismiss, as it would divest the district court of jurisdiction to rule on them. 

The defendants thus moved to strike the Fourth Amended Complaint and opposed remand on the basis that, had the court known the proposed amendments would destroy diversity, it would not have granted leave to amend under Rule 15.  Instead, the court would have conducted an analysis under 28 U.S.C. § 1447(e), which governs diversity-destroying amendments.

When joinder of a nondiverse party would destroy subject matter jurisdiction, Section 1447(e) applies and gives the district court two options:  (1) deny joinder, or (2) permit joinder and remand the action to state court.  Miller, at *7.  To guide that discretion, the Seventh Circuit has adopted four factors:  (1) the plaintiff’s motive for seeking joinder, particularly whether the purpose is to defeat federal jurisdiction; (2) the timeliness of the request to amend; (3) whether the plaintiff will be significantly injured if joinder is not allowed: and (4) any other relevant equitable considerations.  Id. at *7-*8 (citing Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759 (7th Cir. 2009)). 

The plaintiffs’ attempt here to add nondiverse defendants failed on all counts.  First, their motive clearly was to destroy diversity.  They wrote that their recent discovery of the new defendants prompted their last motion for leave to amend, but that was not true.  They knew about the “new” defendants even before they filed their Third Amended Complaint.  Moreover, the court found that the plaintiffs were playing fast and loose with the facts.  Or, as the court put it, “Plaintiffs mischaracterize both the extent of discovery they received and the facts contained in the discovery.”  Id. at *8-*9.  Ouch.  Still further, the court found that the allegations against the new defendants were bogus, i.e., they lacked a “plausible factual basis” and a “reasonable basis in law.”  The only conclusion was that the plaintiffs’ motion was something other than a genuine desire to pursue these defendants.

Second, the timing of the motion to amend suggested a sideways motive, too.  “As a general rule, an extensive delay between removal and a motion to amend typically weighs against permitting joinder, though the rule may not apply when the plaintiff only recently learned about the non-diverse defendants’ roles.”  Id. at *16 (citing Schur, 577 F.3d at 767).  Here, the plaintiffs had the information that they relied on for almost a year.

Third, denying the joinder would not harm the plaintiffs because their claims against the diversity-destroying defendants were not viable anyway.  And fourth, equitable factors weighed against joinder because the plaintiffs’ amendments had caused delay and had deprived the defendants of a ruling on their Motion to Dismiss. 

The court therefore granted the defendants’ motion to strike the Fourth Amended Complaint, reinstated the Third Amended Complaint, and promised a ruling on the Motions to Dismiss in due course.  It is impossible to read this order and not get the sense that this court felt like it had been fooled.  The plaintiffs persuaded the court to grant them leave to file a Fourth Amended Complaint, thus disrupting the defendants’ pending motion to dismiss.  But in obtaining that dispensation, the plaintiffs were not entirely forthcoming with the court, which is putting it generously.  Their motive was evident, and the court set it right.