A recent pelvic mesh case in the District of Maryland, Sullivan v. Calvert Memorial Hospital, No. PJM 14-118, Memorandum Opinion (D. Md. July 30, 2015), offers an interesting and useful take on federal jurisdiction when plaintiffs name local doctors as co-defendants.  You know the drill.  In order to manipulate the forum and avoid removal jurisdiction in a case against an out-of-state product manufacturer, plaintiffs will sometimes join a local doctor as a co-defendant.  One response could be to remove the case to federal court on the basis that the local doctor was fraudulently joined, a strategy that is legally sound and often successful when dealing with intermediaries in the chain of distribution, such as distributors and pharmacies.  Those kinds of defendants do not owe independent duties to plaintiffs and have zero involvement in the design, manufacturing, and labeling of drugs and medical devices (setting aside the potentially vexing issues presented by 3D-printed medical devices, but that is a topic for another day.)  Their citizenship therefore should be disregarded.

Fraudulent joinder with doctors is more complicated because doctors obviously do owe duties of care to their patients, so we tend to approach cases involving doctors also from the point of view of fraudulent misjoinder.  Under fraudulent misjoinder, the defendant argues that the federal court should disregard the citizenship of the local or non-diverse co-defendant because the claims against that defendant are distinct from the product liability claims against product manufacturer.  The case most often cited as the landmark for fraudulent misjoinder is Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996)), and as the argument goes, product liability claims on the one hand are based on facts and law different from medical malpractice claims on the other hand.  It is as though two different lawsuits were improperly joined under one caption, which gives the district court discretion to disregard the citizenship of the non-diverse or local doctors and retain federal diversity jurisdiction.  (We discussed severance of malpractice claims from product liability claims here, although not in the context of federal jurisdiction.)

Some courts have been slow to adopt fraudulent misjoinder, sometimes citing Tapscott as a minority rule and often ignoring Tapscott altogether.  And that is where Sullivan v. Calvert comes in.  In Sullivan, the plaintiff’s surgical team allegedly left a piece of a catheter in the plaintiff’s bladder during a procedure to insert a transvaginal sling.  Op. at 2.  The Maryland plaintiff therefore sued multiple Maryland healthcare providers alleging medical malpractice for leaving the catheter behind, but she also separately pleaded product liability claims against the transvaginal sling manufacturer.  Id. at 3.


Continue Reading Using Severance Under Rule 21 To Preserve Removal Jurisdiction

We’re not law professors.  We don’t typically read opinions with an eye to where they fit (or don’t) in some grand jurisprudential scheme.  We’re litigators, so we read opinions with an eye to whether they can help our clients win.

Thus, when Johnson v. American Towers, LLC,___ F.3d ___, 2015 WL 1321535 (4th Cir. March 25, 2015), popped up in one of our automatic searches (due to a stray citation to Riegel v. Medtronic, Inc., 552 U.S. 312 (2008)), we were inclined to pass it by, since preemption under the Federal Communications Act is not exactly something that arises in our sandbox very often.  If you have an FCC tort preemption issue, you’ll want to read Johnson for that reason, but our discussion here won’t interest you much.


Continue Reading “Common” Defense No Bar to Removal in Preemption Case

This just happened yesterday down in Texas.  The defendant in this 77-plaintiff action raised fraudulent joinder/misjoinder and lack of personal jurisdiction in removing the case. Locke v. Ethicon, C.A. No. 4:14-CV-2648, slip op. (S.D. Tex. Nov. 10, 2014).  The defendant won, as the out-of-state (and non-diverse) plaintiffs were dismissed due to lack of personal jurisdiction under Daimler AG v. Bauman, 134 S. Ct. 746 (2014).  No other remand-related grounds (such as fraudulent (mis)joinder) had to be reached.

Of even greater importance is the “how to” aspect of Locke.  Can a court determining a remand petition decide a question of personal jurisdiction (the Bauman issue) prior to a question of subject matter jurisdiction (fraudulent (mis)joinder)?  The Locke court said “yes,” relying on Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 586-87 (1999).  Slip op. at 3-4 & n.3.  That’s critical, because unless a court can reach the Bauman issue first, it would have to find some basis to dismiss the non-diverse plaintiffs under fraudulent (mis)joinder standards – and those standards are much more difficult to satisfy.  The Supreme Court, however, had resolved this issue in Ruhrgas.

[T]he Court notes that the two motions present the Court with a procedural dilemma.  If the Court addresses the question of subject matter jurisdiction first, then [one of the plaintiffs’] New Jersey citizenship destroys diversity, thereby justifying remand for the Texas state court to resolve the personal jurisdiction issue.  Alternatively, if the Court addresses the question of personal jurisdiction first and finds for the defendants, dismissal would simultaneously reduce the number of plaintiffs to one and permit the Court to retain jurisdiction over the case.  It is well settled that a district court has discretion to dispose of jurisdictional questions in a manner that promotes judicial economy.

Locke, slip op. at 3 (citing Ruhrgas and other cases following it).  This is the first time (we ran a search) that Ruhrgas has been invoked in a fraudulent (mis)joinder remand where the basis for fraudulent joinder is inability of nondiverse plaintiffs to obtain personal jurisdiction over the defendant under Bauman.


Continue Reading Breaking News: Win On Post-Bauman Personal Jurisdiction Avoids Fraudulent (Mis)Joinder Pitfalls

Like pharmaceutical and medical device manufacturers, it is not surprising that compounding pharmacies facing personal injury/products liability litigation prefer the typically more defense-friendly federal arena over the often more challenging (to put it mildly) state court system.  But as today’s case demonstrates, that may not be the easiest path for compounders to follow.

The case

Some plaintiff lawyers seem horrified at the prospect of showing up in federal court.  How else to explain the machinations to prevent diversity jurisdiction?  What is it about federal courts that they dislike so much?  The assignment of one judge who will stick with the case and thereby come to learn its frailties?  The proclivity

This post is from the non-Reed Smith side of the blog only.

We often struggle for a clever title or catchy phrase on which to hang our posts.  Hence, the frequent sidebars into pop culture, sports, history, and music.  But today, the court handed us our opening on a silver platter – permitted gamesmanship v.

Things are often done differently down in Louisiana.  For one thing, Louisiana is the nation’s only civil law state.  It’s also the only state not to have enacted the Uniform Commercial Code.  We blogged about one such difference before – the state’s unique claim for “redhibition.”  Today we’re examining another Louisiana legal peculiarity.  This peculiarity

We have reported before on defendants’ efforts to remove cases from the Philadelphia County Court of Common Pleas to federal court.  We don’t spend a lot of time examining their motives, other than to express our wholehearted approval of the strategy and noting at times that the Philadelphia CCP has taken its share of criticism. 

(This post is from the Cozen side of the blog only.)

Whenever you remove a complaint that is an obvious case of fraudulent joinder, you think to yourself, “Why don’t they just admit it?”  “They” being the plaintiffs’ lawyers, and the admission being that they joined the hometown doctor or pharmacy or sales rep solely 

A while ago, when we posted primarily about TwIqbal and removed complaints, we commented briefly on a different, but related question – whether TwIqbal (that is to say the Supreme Court’s landmark pleading decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal) also applied to a fraudulent joinder evaluation of a plaintiff’s allegations for purposes of remand.  We said that we didn’t think so, but that there wasn’t much law, and left it at that.  We recently returned to this same issue after being tapped for some in-firm (this is the Reed Smith side) continuing legal education on removal issues.

It turns out that, while we’d still say application of TwIqbal is a minority position in the remand/fraudulent joinder context, it’s better backed precedentially than we had previously thought.  In a couple of circuits it is backed (at least arguably) by pre-TwIqbal appellate precedent authorizing use of Rule 12 standards in fraudulent joinder cases.  See Simpson v. Thomure, 484 F.3d 1081, 1084 (8th Cir. 2007); Smallwood v. Illinois Central Railroad Co., 385 F.3d 568, 573 (5th Cir. 2003).


Continue Reading TwIqbal In The Remand Context?