Opinion
CIVIL ACTION No. 03-0198, SECTION I/1.
May 7, 2003.
ORDER AND REASONS
Before the Court are the following motions:
1) The motion of plaintiff, Marsha Danos, to remand (Rec. Doc. No. 3);
2) The motion of defendant, Bristol-Myers Squibb Company, for temporary stay of all proceedings pending a final ruling by the Judicial Panel on Multidistrict Litigation on transfer of this case to MDL-1477 (Rec. Doc. No. 2);
3) The motion of plaintiff, Marsha Danos, to stay transfer to the MDL (Rec. Doc. No. 4).
Background
On December 5, 2002, plaintiff, Marsha Danos ("Danos"), filed a petition in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, alleging that she sustained injuries, including serious liver conditions, as a result of ingestion of Serzone, a prescription medication. Alleging state law claims in her petition, plaintiff sued Bristol-Myers Squibb Company ("BMS"), the manufacturer, marketer, and seller of Serzone, Dr. D.C. Mohnot, the physician who prescribed Serzone, for the plaintiff, and Majoria Family Enterprises, Inc. d/b/a Majoria Drugs, the pharmacy which filled plaintiff's Serzone prescription.On January 21, 2003, BMS filed a notice of removal, alleging that diversity of citizenship exists. The defendant contends that Dr. Mohnot, a non-diverse defendant, was fraudulently joined because plaintiff has failed to show any basis for a claim for relief or right of recovery against him. The defendant also argues that any medical malpractice claim against Dr. Mohnot, a health care provider, is premature.
Rec. Doc. No. 1, notice of removal, p. 2.
BMS also argues that Majoria Drugs, the pharmacy defendant, was also fraudulently joined because plaintiff has no viable cause of action against it. The Court need not address the alleged fraudulent joinder of the pharmacy because its decision with respect to the fraudulent joinder of the non-diverse health care provider disposes of the question of whether there is complete diversity for purposes of diversity of citizenship jurisdiction.
The plaintiff filed the instant motion to remand. In this motion, plaintiff argues that Dr. Mohnot was not fraudulently joined and, therefore, the Court lacks subject matter jurisdiction.
Rec. Doc. No. 3.
Fraudulent Joinder
In B, Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir. 1981), the Fifth Circuit described the burden placed upon parties who remove based upon a fraudulent joinder theory:
The burden of persuasion placed upon those who cry `fraudulent joinder' is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either 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 plaintiff's pleadings of jurisdictional facts.
663 F.3d at 549 (emphasis added) (citations omitted). This Court need not decide whether the plaintiff will actually or even probably prevail on the merits. It must only determine whether there is a possibility that the plaintiff may do so.Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992) (other citations omitted). "[I]f there is even a possibility that a state court would find a cause of action stated against any one of the named in-state defendants on the facts alleged by the plaintiff, then the federal court must find that the in-state defendant(s) have been properly joined, that there is incomplete diversity, and that the case must be remanded to the state courts." B, Inc., 663 F.2d at 550 (citations omitted).
See also Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984); Cavillini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 259 (5th Cir. 1995).
For the reasons stated by U.S. District Judge Carl J. Barbier in Williams v. Bristol-Myers Squibb Co., Civil Action No. 03-106 (E.D. La. 2003), by U.S. Senior Judge Livaudais in Ochoa v. Bristol-Myers Squibb Co., Civil Action No. 03-105 (E.D. La. 2003), and by U.S. District Judge G. Thomas Porteous inChaisson v. Bristol-Myers Squibb Co., Civil Action 03-0191 (E.D. La. 2003), the Court finds that Dr. Mohnot, a non-diverse defendant, was not fraudulently joined. This Court, therefore, lacks subject matter jurisdiction. Accordingly,
See also Wager v. Bristol-Myers Squibb Co., Civil Action No. 03-188 (Barbier, J.) (E.D. La. 2003); Murray v. Bristol-Myers Squibb Co., Civil Action No. 03-102 (Zainey, J.) (E.D. La. 2003); Geraci v. Bristol-Myers Squibb Co., Civil Action No. 03-189 (Barbier, J.) (E.D. La. 2003); Bonds v. Bristol-Myers Squibb Co., Civil Action No. 03-197 (Porteous, J.) (E.D. La. 2003); Nix v. Bristol-Myers Squibb Co., Civil Action No. 03-150 (Berrigan, J.) (E.D. La. 2003).
IT IS ORDERED that the motion of plaintiff, Marsha Danos, to remand is hereby GRANTED; IT IS FURTHER ORDERED that this action is hereby REMANDED to the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana;
IT IS FURTHER ORDERED the motion of defendant, Bristol-Myers Squibb Company, for temporary stay of all proceedings pending a final ruling by the Judicial Panel on Multidistrict Litigation on transfer of this case to MDL-1477 is DENIED AS MOOT; IT IS FURTHER ORDERED that the motion of plaintiff, Marsha Danos, to stay transfer to the MDL is DENIED AS MOOT.