ORDER REASONS

ELDON FALLON, District Judge

Before the Court is the plaintiffs Motion for Reconsideration or, alternatively, for Leave to Add Dr. Bradley Bartholomew as a Defendant and to Remand the Case (Rec. Doc. No. 19). For the foregoing reasons, the plaintiffs motion is hereby GRANTED.

I. FACTS

The underlying facts giving rise to this litigation began on January 14, 2002 when plaintiff Sharron Donaldson ("Donaldson") underwent surgery at St. Charles General Hospital in New Orleans, Louisiana to correct a C6-7 disc herniation. The surgeon was Dr. Bradley Bartholomew. During the course of the surgery, Dr. Bartholomew implanted a cervical plate and screws into the plaintiffs spine. These devices were manufactured by defendant Spinal Concepts, Inc.

In April, 2002, the plaintiff learned that some of the screws had fractured, causing plaintiffs condition to worsen. Thereafter, on April 11, 2003, the plaintiff filed suit in Civil District Court for Orleans Parish against Spinal Concepts, Inc. for damages resulting from the defective nature of the screws. On the same day, the plaintiff also filed a complaint against Dr. Bartholomew with a medical review panel in compliance with Louisiana law, which provides that a patient alleging a physician's malpractice may not commence a lawsuit until such time as the matter has been considered by a medical review panel. See La. Rev. Stat. Ann. 40:1299.47(B)(1)(a)(i).

Thereafter, on May 28, 2003, Spinal Concepts removed the action to this Court, asserting the parties' diversity of jurisdiction and the presence of an amount in controversy exceeding 575,000. Plaintiff moved the Court to remand the matter to state court for lack of subject matter jurisdiction. Plaintiff argued that the Court lacked subject matter jurisdiction because the facts in plaintiffs petition included facts sufficient to allege a cause of action against Dr. Bartholomew, a non-diverse defendant. This Court denied the motion by Order Reasons dated August 6, 2003, because it was not persuaded that a federal court can decline to exercise its subject matter jurisdiction simply because the plaintiff may decide to add a non-diverse party at some unspecified time in the future.

Plaintiff now moves this Court to reconsider its denial to remand or, alternatively, for leave to add Dr. Bartholomew, a non-diverse defendant, which would require remand to state court.

II. ANALYSIS

The Court declines to reconsider its denial of plaintiff s motion to remand based on the same reasoning as outlined in its Order Reasons dated August 6, 2003.

However, the Court GRANTS leave for the plaintiff to add Dr. Bradley Bartholomew as a defendant and hereby REMANDS the case pursuant to 28 U.S.C. § 1447(e). The Court finds that but for the unique procedural impediment created by Louisiana medical malpractice law, Dr. Bartholomew would have been named as a defendant in the original complaint, and the matter would have remained in state court. The Court further finds it appropriate to add Dr. Bartholomew at this juncture.

The Court notes that Dr. Bartholomew may file an exception of prematurity in state court and be dismissed thereby again creating diversity jurisdiction. Should dismissal of Dr. Bartholomew occur, defendant Spinal Concepts indicated in its opposition to plaintiffs motion (Rec. Doc. No. 23), that it could again move to remove the matter back to federal court. Notwithstanding defendant's contention, however, the case law indicates that such a dismissal from state court would not create diversity jurisdiction because the dismissal is not considered voluntary. Ohler v. Purdue Pharma, L.P., 2003 WL 943643 (E.D. La. March 7, 2003); Englande v. Smithkline, 206 F. Supp.2d 815 (E.D. La. 2002). Removal, therefore, would not be appropriate under such circumstances.

III. CONCLUSION

For the foregoing reasons, IT IS ORDERED that the plaintiffs Motion for Leave to Add Dr. Bradley Bartholomew as a Defendant and to Remand is hereby GRANTED and the matter is REMANDED to Civil District Court for the Parish of Orleans, State of Louisiana.