Opinion
CIVIL ACTION 02-2540 SECTION "T"(2)
January 28, 2003
ORDER AND REASONS
I. BACKGROUND:
The Plaintiff, Rosalind Peychaud, filed this lawsuit in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana on June 18, 2002. The Petition for Damages seeks damages allegedly caused by Plaintiff's use of the diet drug Dexfenfluramine and for the Defendants' conduct in concealing the adverse effects of the diet drug. All of Plaintiff's claims are based on violations of Louisiana State Law. The Defendants, Wyeth Company, et al., had the matter removed to this Court on August 14, 2002. The Plaintiff is now seeking to have the matter remanded to the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana.
II ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments on Behalf of Harry H. Hoppen, II in Support of Motion to Remand:
The Plaintiff argues that the action should be remanded pursuant to 28 U.S.C. § 1447(c) because the Defendants' removal was improper. The Plaintiff argues that the case should be remanded to the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana because there is no diversity jurisdiction, according to 28 U.S.C. § 1332. Defendants' argument that the Doctor Defendant, Dr. Andonie, is fraudulently joined is without merit. The Plaintiff has successfully established a cause of action against the Doctor Defendant. The fact that the Plaintiff did not file a request with the medical review panel is immaterial to the issue of fraudulent joinder. Defendants have not asserted that Plaintiffs have fraudulently pled any jurisdictional fact and, therefore, have failed to carry their burden to prove fraudulent joinder.
The Plaintiff argues that the claims against the Doctor Defendant are not prescribed and that prescription is not a jurisdictional issue. Under Louisiana Law, the Court may not hear any issue that goes to the merits of the case, such as prescription, before jurisdiction is established. When prescription is raised as an affirmative defense, it raises a question of fact and law that must be answered in favor of the plaintiffs for purposes of deciding remand. Alternatively, the doctrine of contra non valentem interrupts or suspends the prescriptive period in certain situations. The discovery rule, in particular, suspends prescription until the plaintiff has actual or constructive knowledge of the tortious act, the damages, and the causal relationship between the tortious act and the damages. Furthermore, the scope of the Court's inquiry to determine removal jurisdiction, when prescription is raised as an affirmative defense is limited.
The Plaintiff also argues that the Doctor Defendant is a released party under the Nationwide Settlement Agreement and, according to the terms of the agreement, prescription has not run. The terms of the Nationwide Class Action Settlement Agreement defines the doctors as released parties and, under the terms, prescription may not be used as a defense or a basis of removal.
The Plaintiff argues that the case should be remanded to the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana because the Defendants' failed to obtain the consent of all served Defendants before filing the Notice of the Removal. The Rule of Unanimity requires the unambiguous consent of all Defendants to the removal. The rule of Unanimity must be observed because none of the Defendants were fraudulently joined. The case, therefore, must be remanded because all of the Defendants did not consent to the removal.
B. Arguments of Wyeth in Opposition to Motion to Remand:
The Defendants argue that the removal is proper because the Doctor Defendant was fraudulently joined. The joinder of a party is fraudulent when either the plaintiff has no reasonable prospect of recovery against him or the plaintiff has no good faith intent to pursue a claim against him but names the party in order to deprive the other defendants of their right to remove the case to federal court. The Plaintiff has no good faith intent to pursue a claim against the only non-diverse Defendant, the Doctor Defendant, and has only joined him in an attempt to deprive the other Defendants of their right to remove the case to federal court. The three-year limitation on medical malpractice claims applies regardless of when the patient's harm manifested itself or when the patient knew or should have known of his or her potential claim. The three-year limit applies to the Plaintiff's claims and the latest date that Plaintiff could have brought a timely suit was September of 2000 because the diet drugs were withdrawn from the market in September of 1997. Furthermore, there is no tolling or discovery rule for the three-year limitation period.
The Defendants also argue that the Nationwide Class Action Settlement Agreement does not affect the application of the three-year limit in this case. There is no provision in the Settlement Agreement precluding Dr. Lemaire from asserting the three-year statutory peremption period as a defense because Dr. Lemaire was not a party to the settlement agreement.
III. LAW AND ANALYSIS:
A. Law on Remand/Fraudlent Joinder:
A motion to remand a case to state court on the basis of any defect other than lack of subject matter jurisdiction must be made within thirty days after the filing of the notice of removal. 28 U.S.C. § 1447(c). In the case at hand, the defendant filed its notice of removal on August 14, 2002 and the plaintiff filed the motion to remand on September 13, 2002. As the plaintiffs motion was timely filed, the Court will address the issues presented therein.
"The burden of persuasion placed upon those who cry `fraudulent joinder' is indeed a heavy one." B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981); Ford. et al. v. Elsbury. et al., 32 F.3d 931, 935 (5th Cir. 1994). Where charges of fraudulent joinder are used to establish federal jurisdiction, the removing party has the burden of proving the claimed fraud. Dodson v. Spiliada Maritime Corp., et al., 951 F.2d 40, 42 (5th Cir. 1992). In order to establish that a plaintiff fraudulently joined an in-state defendant so as to preclude exercise by a federal court of diversity jurisdiction, the removing party must show that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiffs pleadings of jurisdictional facts. Dodson, 951 F.2d at 42; B., Inc., 663 F.2d at 549.
Claims of fraudulent joinder should be resolved in a summary judgment-like procedure whenever possible. Sid Richardson Carbon Gasoline Co. v. Interenergy Resources. Ltd., 99 F.3d 746 (5th Cir. 1996). Although the district court may "pierce the pleadings" to examine affidavits and other evidentiary material, it should not conduct a full evidentiary hearing on questions of fact, but rather should make a summary determination by resolving all disputed facts in favor of the plaintiff. Id. at 751; Ford, 32 F.3d at 935; Dodson, 951 F.2d at 42.
B. The Court's Analysis:
The Plaintiffs arguments cannot withstand the Defendants' opposition. The Plaintiff's argument that Dr. Andonie was not fraudulently joined fails because Plaintiff's claims against Dr. Andonie are prescribed according to La. R.S. § 9:5628. Accordingly, the Defendant proves that there is no possibility that Plaintiff could succeed against the same-state Defendant in state court. Additionally, the Court has recently held that a non-diverse medical center defendant was fraudulently joined in an analogous case. Case v. Merck Co., Civ. Action No. 02-1779, 2002 WL 1897048 (E.D. La. Aug. 15, 2002). The Court is bound by its decision in Case and, therefore, must rule that Dr. Lemaire has been fraudulently joined.
The Plaintiff's argument that the Rule of Unanimity, 28 U.S.C. § 1446 (a), is not satisfied also fails. The Plaintiff argues that the Phentermine Defendants did not join in the removal action and the removal was therefore improper. The consent of these Defendants, however, is unnecessary because they too have been fraudulently joined. The Phentermine Defendants were fraudulently joined because the Plaintiff had no real intent to pursue a claim against them. The Plaintiff could not have any real intent to pursue a claim against the Phentermine Defendants because there has been no reliable evidence to suggest phentermine causes VHD or PPH. ( See Anderson v. American Home Products Corporation, Civil Action 01-20182, Eastern District of Pennsylvania ("The Age Intervention"). The Plaintiff, therefore, could not have any real intent to pursue the Phentermine Defendants.
Accordingly,
IT IS ORDERED that the Motion to Remand of the Plaintiff, Rosalind Peychaud, be and the same is hereby DENIED.