Order and Reasons

HELEN BERRIGAN, Chief Judge, District

This matter comes before the Court on Plaintiff's' Motion to Stay, and Defendant's Motion to Dismiss, or Alternatively, to Strike Amended Petition of Plaintiff's. For the following reasons, Defendant's motion is hereby DENIED, Plaintiff's' Motion to Stay is DISMISSED without prejudice, and the matter is REMANDED to Civil District Court for the Parish of Orleans, State of Louisiana.

I. BACKGROUND

The underlying facts giving rise to this litigation began on April 22, 2002, when Plaintiff Juanita Turner, wife of Earl Turner (collectively referred to as "Plaintiff's"), underwent a "Nissen fundoplication" procedure at Pendleton Memorial Methodist Hospital ("Hospital") performed by Dr. Thomas Brown ("Physician"). After the procedure, a foreign object was discovered in Mrs. Turner's abdomen Which was retrieved and determined to be a piece of an automated suturing device manufactured by Ethicon Endo-Surgery ("Ethicon"), an Ohio corporation with its principal place of business in Ohio. The device had been used by Physician in the first procedure.

On April 15, 2003, Plaintiffs brought a medical malpractice claim before the Louisiana Medical Review Panel against Physician and Hospital 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 presented to a medical review panel. See La. Rev. Stat. § 40:1299.47(B)(1)(a)(i). On April 22, 2003, Plaintiffs brought a products liability claim against Ethicon in Civil District Court for the Parish of Orleans. On August 7, 2003, Ethicon filed a Notice of Removal pursuant to 28 U.S.C. § 1441, removing Plaintiffs' action to this Court based on diversity jurisdiction. On August 27, 2003, prior to answer being filed, Plaintiffs amended their petition, adding Physician and Hospital as co-defendants and destroying diversity.

In its motion, Ethicon argues that the amendment is improper under Hensgens v. Deere Co., 833 F.2d 1179 (5th Cir. 1987) and because the claims against Physician and Hospital are premature. The plaintiffs argue that the amendment is proper, jurisdiction is lacking and that a stay is appropriate until such time as the Medical Review Panel has ruled on the claims before it.

II. LAW AND ANALYSIS

A. Propriety of Joinder

Under Fed.R.Civ.P. 15(a), "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . ." Since the plaintiffs' challenged amendment was filed prior to a responsive pleading, leave of court was not required under the rule. Although not specifically discussed by the parties, this rule and the resulting diversity mandates remand on its own.

Instead, Ethicon argues that Physician and Hospital can not be properly joined in the instant action and since the remaining parties are of diverse citizenship, subject matter jurisdiction exists and removal was proper. The Court disagrees. Under Fed.R.Civ.P. 20(a), defendants may be joined as defendants in one action "if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." Under this rule, "the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged." United Mine Workers of America v. Gibbs, 383 U.S. 715, 724 (1966).

Applying these broad principles, the Court finds that the joinder of Physician and Hospital to this action is permitted under Rule 20(a). See e.g. Donaldson v. Spinal Concepts, Inc., 2003 WL 22175986 (E. D. La.) (allowing joinder of products liability claim against spinal device manufacturer and medical malpractice claim against doctor). Initially, the Court finds that the Plaintiffs' claims against Physician and Hospital arise out of the same series of transactions or occurrences as their claims against Ethicon. Specifically, Plaintiffs' claims arise out of a single procedure involving Endicon's suturing device, Physician and Hospital.

The Court also finds that questions of law and fact common to Ethicon, Physician and Hospital exist hi this action. There are overlapping issues with regard to the cause and extent of the Plaintiffs' injuries. Common issues will also arise with regard to the relative liability of these three parties under different legal theories. The fact that different legal theories are asserted does not preclude joinder under Rule 20(a). See Rodriguez by Rodriguez v. Abbott Laboratories, 151 F.R.D. 529, 533 (S.D.N.Y. 1993) (". . . the presence of two different legal claims does not prevent joinder where the claims arise from a single source."). Most telling, perhaps, is the fact that Ethicon points to the fault of Physician and Hospital hi its Answer. (Rec. Doc. 10). The Court finds that the Physician and Hospital can be properly joined hi this action under Rule 20(a).

Assuming the Court's analysis was governed by Hensgens, the result would be the same. Under 28 U.S.C. § 1447(e), "[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." In making this determination, Hensgens teaches that "[t]he court should consider the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether plaintiff has been dilatory hi asking for amendment, whether plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equities." None of these factors weigh hi favor of Ethicon's argument; all support joinder.

Louisiana's medical malpractice law requires that Plaintiffs' claims against Physician and Hospital be first "presented" to the medical review panel under La. Rev. Stat. § 40:1299.47(B)(1)(a)(I). See Donaldson, supra. Had the Physician and Hospital been originally named as defendants hi the original petition, the matter would have remained hi state court. Again, the plaintiffs amended the petition as of right; no leave of court was required. Under these circumstances, the Court does not view Plaintiffs' attempt to add these two defendants as an attempt to forum shop but, rather, as an attempt to promote judicial economy and prevent duplicative litigation. hi addition, there was no significant delay in filing the amendment. Id.

In its Motion to Dismiss, Ethicon argues that the non-diverse Defendants are most likely not joint tortfeasors and that different legal theories are being pursued against the various defendants. As previously discussed, this reasoning fails. The Court finds that the plaintiffs have stated a valid claim against the defendants for purposes of Fed.R.Civ.P. 12(b)(6). Similarly, a Motion to Strike under Fed.R.Civ.P. 12(f) is viewed with disfavor and infrequently granted. FDIC v. Niblo, 821 F. Supp. 441 (N.D.Tex. 1993). The court's exercise of discretion is guided by a "standard of materiality . . . [that is] a loose one: defendants must show that the challenged allegations can have no possible bearing upon the subject matter of the litigation." Sadler v. Benson Motors Corp., 197 WL 266735 (E.D.La.). The Court finds that Defendants have failed to show that the amended petition has "no possible bearing upon the subject mater of the litigation." Id. The theories of fault hi the amended petition pertain directly to the overlapping issues hi the claims with respect to the relative liabilities of each defendant.

B. Prematurity

The Court recognizes that Physician and Hospital may file an exception of prematurity hi state court and may be subject to either dismissal or a stay. However, the case law indicates that any dismissal would not create diversity jurisdiction because the dismissal is not considered voluntary. Ohler v. Purdue Phama, L.P., 2003 WL 943643 (E.D.La.); 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 Motion to Dismiss or Alternatively to Strike Amended Petition of Plaintiffs is DENIED and the matter is REMANDED to Civil District Court for the Parish of Orleans, State of Louisiana, under 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction. Because of the remand, the plaintiffs' Motion to Stay is DISMISSED without prejudice,

New Orleans, Louisiana,