Opinion
CASE NO. 1:15 CV 1116
09-24-2015
David S. Aramouni, Plaintiff, v. Cook Medical, et al., Defendants.
Memorandum of Opinion and Order
INTRODUCTION
This matter is before the Court upon Defendant Maquet Cardiovascular LLC's Motion to Sever (Doc. 3). Also pending is Plaintiff's Motion to Remand to Cuyahoga County Court of Common Pleas (Doc. 55). This is a wrongful death action. For the reasons that follow, the motion to sever is DENIED and the motion to remand is GRANTED.
FACTS
Plaintiff, David S. Aramouni, brings this action as the Administrator of the Estate of Michael Tabanji against a number of defendants alleging misconduct in connection with the treatment of an aneurysm. Although not specifically alleged in the complaint, it appears from the medical records that during surgery at the Cleveland Clinic, the surgeon was unable to "deploy the [fenestrated stent graft]," and was then unable to remove it from Tabanji's body. Ultimately, Tabanji died. Thereafter, plaintiff filed this lawsuit in state court on behalf of Tabanji's estate. The complaint contains a number of claims, including products liability claims asserted against manufacturers of the fenestrated stent graft and other medical products. In addition, plaintiff filed a medical malpractice claim against the Cleveland Clinic.
Defendant Maquet Cardiovascular, LLC ("Maquet") filed a notice of removal on the grounds that diversity jurisdiction exists over this matter. All served defendants consented to removal. According to the removal notice, the Court should sever the medical malpractice claim filed against the Cleveland Clinic and remand that part of the case to state court. Because complete diversity exists between plaintiff and the remaining products liability defendants, this Court should retrain diversity jurisdiction over that aspect of the lawsuit.
After removal, Maquet filed a motion to sever, in which the served defendants joined. A number of defendants also filed motions to dismiss challenging the sufficiency of the allegations in the complaint. Plaintiff filed a brief opposing severance and also filed a motion to remand. Defendants oppose the motion to remand.
ANALYSIS
Defendants argue that the Court should disregard the citizenship of the Cleveland Clinic because plaintiff fraudulently joined this defendant in order to defeat the Court's diversity jurisdiction. In the alternative, defendants claim that because the Cleveland Clinic is not a necessary or indispensible party, the Court should sever plaintiff's claims against this defendant and remand them to state court. According to plaintiff, it has a viable medical malpractice claim against the Cleveland Clinic. Plaintiff also argues that the events giving rise to this lawsuit arose out of the same transaction or occurrence and share common questions of law and fact. As such, severance is not warranted.
Under 28 U.S.C. § 1447(c), cases originally filed in a state court must be remanded if, at any time before trial, it appears that the federal district court to which they were removed lacks subject matter jurisdiction. Coyne v. The American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) ("[I]n a removed action, upon determination that a federal court lacks jurisdiction, remand to state court is mandatory."). In order for this Court to have subject matter jurisdiction based on diversity, complete diversity must exist at the time of removal. Id. at 492. However, the "fraudulent joinder of non-diverse defendants will not defeat removal on diversity grounds." Id. at 493. The party seeking removal bears the burden of establishing diversity jurisdiction. In order to establish fraudulent joinder, the "removing party must present sufficient evidence that a plaintiff could not have established a cause of action against non-diverse defendants under state law." Id. The relevant inquiry is whether there is a "colorable basis for predicting that a plaintiff may recover against [a defendant]." Id. Any doubt as to whether removal is proper must be resolved in favor of remand. Id.
"When deciding a motion to remand, including fraudulent joinder allegations, [courts] apply a test similar to, but more lenient than, the analysis applicable to a Rule 12(b)(6) motion to dismiss." Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 433 (6th Cir. 2012)(citing Walker v. Philip Morris USA, Inc., 443 Fed.Appx. 946, 952-54 (6th Cir. 2011)). Further, a court may "pierce the pleading" and consider evidence "such as affidavits presented by the parties." Id. "The court may look to material outside the pleadings for the limited purpose of determining whether there are undisputed facts that negate the claim." Id. (quotations omitted).
Here, defendants argue that plaintiff has no "colorable basis" for recovery because the complaint fails to allege sufficient facts to satisfy notice pleading requirements. According to defendants, plaintiff lumps all "defendants" together and does not articulate what actions give rise to the medical malpractice claim it lodges against the Cleveland Clinic. In response, plaintiff provides the Court with an affidavit of merit as required under the Ohio rules of civil procedure.
Upon review, the Court finds that defendants fail to establish that plaintiff fraudulently joined the Cleveland Clinic. Defendants' primary argument is that the complaint fails to sufficiently state a particular claim for medical malpractice. Defendants, however, point to no evidence or law suggesting that no colorable basis exists for plaintiff's medical malpractice claim. In response to defendants' argument, plaintiff presents an affidavit of merit as required by the Ohio Rules of Civil Procedure. In that affidavit, a physician opines that the Cleveland Clinic breached the standard of care applicable to Tabanji's treatment and that these actions caused damages to Tabanji. And, although the Court agrees that the allegations in the complaint are general, for purposes of analyzing fraudulent joinder, the Sixth Circuit applies a standard even more deferential than that applied to motions to dismiss filed under Rule 12(b)(6). Moreover, although not dispositive, the Cleveland Clinic did not file a motion to dismiss and, instead, was able to formulate an answer to the complaint. The Court finds that with regard to this case in particular, inartful pleading does not equate to fraudulent joinder. Given that any doubt must be resolved in favor of remand, the Court finds that defendants fail to establish that plaintiff fraudulently joined the Cleveland Clinic.
Defendants also argue that by failing to specifically name the physician that engaged in the malpractice, plaintiff fails to state a claim for relief under Ohio law. Defendants claim that under Ohio law, vicarious liability is unavailable. Upon review, the Court finds that defendants' argument is not well-taken. Defendants rely on Schura v. Marymount Hospital, 2010 WL 4307691 (Oh. Ct. App. 2010). In that case, however, the court determined that the failure to name an independent contractor rendered a vicarious liability claim against the hospital unavailable. The court went on, however, to address whether sufficient evidence existed with regard to unnamed hospital employees. Although the court found the evidence lacking, it did not determine that the failure to name the employee negated the claim. Here, defendants fail to produce any evidence or argument suggesting that the individuals providing care to Tabanji were independent contractors. Thus, defendants fail to establish that no colorable basis exists for plaintiff's medical malpractice claim.
Defendants also ask that the Court sever the medical malpractice claim in order to obtain diversity jurisdiction over the products liability claims. Rule 21 of the Federal Rules of Civil Procedure provides as follows:
Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.
This rule permits a district court to drop a party or sever a claim in order to preserve diversity jurisdiction, provided the party is not a necessary party under Rule 19. See, Safeco Ins. Co. v. City of White House Tennessee, 36 F.3d 540, 545 (6th Cir. 1994). And, although Rule 21 is directed at the "misjoinder" of parties, misjoinder need not be demonstrated in order for a court to invoke Rule 21. Id.
Assuming arguendo that the Cleveland Clinic is not a necessary party under Rule 19, the Court declines to sever the medical malpractice claim from the products liability claims on the facts of this case. As an initial matter, the Court finds that misjoinder did not occur. Federal Rule 20 allows a party to join multiple defendants when the plaintiff seeks relief "jointly, severally, or in the alternative" for events "arising out of the same transaction, occurrence, or series of transactions occurrence" and where "any question of law or fact common to all defendants will arise in the action." Here, this case involves surgery to repair Tabanji's aneurysm. During the course of the surgery, it appears that difficulties arose with the deployment of a fenestrated stent graft. Thus, at issue in this case is whether the product was defective or whether, as suggested by the affidavit of merit, the Cleveland Clinic engaged in medical malpractice during the procedure. The Court finds that these allegations arise out of the same "transaction or occurrence," i.e., plaintiff's surgery. And, they involve at least one common question of law or fact, i.e., causation.
The Court understands that misjoinder need not be demonstrated in order to invoke Rule 21. The rule, however, is discretionary. The Court finds that whether misjoinder occurred is one factor to consider in deciding whether to exercise its discretion. Other than pointing out that the Cleveland Clinic is not a necessary party under Rule 19, defendants offer no addition reasons supporting their request for severance. On the other hand, plaintiff argues that it will be prejudiced if severance is ordered. According to plaintiff, it will be forced to prosecute this case in two forums. Discovery will be duplicated and defendants may attempt to shift the blame to the absent defendants in each case. The Court agrees with plaintiff that these concerns weigh against severing the malpractice claim in order to achieve diversity jurisdiction over this matter.
Defendants rely on a number of cases supporting their position that severance and remand are appropriate. See, Doc. 3-1 at fn. 2. The overwhelming majority of these cases, as well as the cases uncovered by this Court's research, involved multidistrict litigation ("MDL"). See, Kelly v. Aultman Physician Center, 2013 WL 2358583 (N.D. Ohio May 29, 2013)(severing malpractice claim in MDL action); Joseph v. Baxter International, Inc., 614 F.Supp.2d 868 (N.D. Ohio 2009)(same); Williams v. Knoll Pharm. Co., No. 03-8030, Doc. 5 (N.D. Ohio 2003)(same). MDL cases involve both judicial and economic efficiency issues not present in the instant case. As plaintiff notes, plaintiffs participating in MDL litigation obtain a benefit in that plaintiffs typically proceed collectively in the MDL and each particular plaintiff need not conduct his own discovery or expend extensive resources pursuing the case. As such, severing the medical malpractice claim does not cause undue prejudice to the plaintiff. On the other hand, to deny severance for MDL cases would effectively deny a defendant the ability to expeditiously defend against a large volume of actions asserting the same wrongdoing. Here, defendants offer no substantive reason why the Court should exercise its discretion and sever the malpractice action. Thus, even if this Court is permitted to sever the medical malpractice claim, the Court concludes that defendant's preferred choice of forum does not outweigh the prejudice plaintiff will suffer by litigating this action in two different forums. See, Esber Beverage Co. v. The Wine Group, Inc., 2010 WL 3430704 (N.D. Ohio Aug. 30, 2010)(declining to exercise discretionary authority where all claims against all defendants were grounded in the same basic operative facts). Stone v. Zimmer, Inc., 2009 WL 1809990 (S.D Fla. June 25, 2009)(granting remand only after determining that medical malpractice claim and products liability claim did not arise out of the same transaction or occurrence and thus distinguishing case from those in which the malpractice and the products liability claim arose during surgery).
Many courts limit the analysis to whether the party is necessary and indispensable. This Court declines to hold that a showing under Rule 19 is always sufficient to warrant severance under Rule 21. This is especially so in the context of assessing diversity jurisdiction upon removal. Federal courts are courts of limited jurisdiction and are routinely admonished to strictly construe removal jurisdiction. Shamrock Oil & Gas Corp v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 872 (1941). Where a plaintiff properly joins a party or claim (as expressly permitted under both state and federal procedure rules), this Court will not automatically sever claims in order to obtain jurisdiction.
The Court is aware of its decision in White v. Goel, 14 CV 2236, Doc. 13 (November 19, 2014), wherein the Court granted defendants' request to sever. In that case, however, plaintiff did not respond in any fashion to defendants' request to sever. Accordingly, the request was in essence unopposed. --------
CONCLUSION
For the foregoing reasons, Defendant Maquet Cardiovascular LLC's Motion to Sever (Doc. 3) is DENIED and Plaintiff's Motion to Remand to Cuyahoga County Court of Common Pleas (Doc. 55) is GRANTED.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 9/24/15