Opinion
Civil Action No. 01-2304-CM
July 13, 2001
MEMORANDUM AND ORDER
This matter is before the court on plaintiffs' motion to remand (Doc. 6). On June 6, 2001, plaintiffs filed a Petition for Perpetuation of Testimony in the District Court of Johnson County, Kansas. Plaintiffs named Wyeth-Ayerst Laboratories, Division of American Home Products Corporation (WAL), American Home Products Corporation (AHPC), and A.H. Robins Company, Inc. as respondents. The petition asserted that plaintiff Carol Jochim sustained serious physical injuries due to her alleged ingestion of dexfenfluramine capsules. Plaintiffs stated that they anticipated asserting claims for strict liability — product defect, strict liability — failure to warn, negligence, fraud, negligent misrepresentation, breach of expressed warranties, breach of implied warranties of fitness for consumption and merchantability, and civil conspiracy.
On June 18, 2001, WAL and AHPC removed the action to federal court based on diversity jurisdiction. Plaintiffs are resident of the state of Kansas, while AHPC is a Delaware corporation with its principal place of business located in New Jersey, and WAL is an unincorporated division of AHPC. Three days later, plaintiffs filed an amended complaint, adding as defendants Nancy Forlenza and Dr. William Walters, both of whom are citizens of the state of Kansas. Plaintiffs allege that Dr. Walters prescribed the drug to Carol Jochim and that Ms. Forlenza was a sales representative for the drug's manufacturer who made sales calls upon Dr. Walters.
A.H. Robins Company, Inc. merged into AHPC on August 3, 1998 and, therefore, no longer exists as a separate entity.
Plaintiffs argue that this case should be remanded because the court lacks subject matter jurisdiction under 28 U.S.C. § 1332. Specifically, plaintiffs contend that complete diversity is lacking because Ms. Forlenza and Dr. Walters are citizens of the same state as them. Plaintiffs also assert that, because no monetary damages are being sought, the amount in controversy requirement is not met.
A civil action is removable only if a plaintiff could have originally brought the action in federal court. 42 U.S.C. § 1441(a). In general, there is a presumption against federal jurisdiction because the courts of the United States are courts of limited jurisdiction. Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Accordingly, courts must resolve any doubts concerning removability in favor of remanding the case to state court. Henderson v. Holmes, 920 F. Supp. 1184, 1186 (D.Kan. 1996). Defendants WALD and AHPC argue that the court should deny joinder of Ms. Forlenza and Dr. Walters to this lawsuit. When a plaintiff seeks to join a nondiverse party after the case has been removed, the court is provided with two options:
If 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.28 U.S.C. § 1447(e). Defendants contend that plaintiffs' sole reason for adding M. Forlenza and Dr. Walters was to defeat diversity jurisdiction and that any claims against Ms. Forlenza and Dr. Walters "are merely hollow pretenses designed to deprive this Court of jurisdiction." Defendants argue that, on this basis, the court should deny joinder and deny plaintiffs' motion to remand.
Joinder of a resident defendant against whom there is in fact no cause of action will not defeat removal. Roe v. Gen. Am. Life Ins. Co., 712 F.2d 450, 452 (10th Cir. 1983) (citing Dodd v. Fawcett Publ'n, Inc., 329 F.2d 82 (10th Cir. 1964)). To prove fraudulent joinder, defendants must demonstrate that there is no possibility that plaintiffs would be able to establish a cause of action against the joined parties in state court. In evaluating such claims, the court must initially resolve all disputed questions of fact and all ambiguities in the controlling law in favor of the non-removing party and then determine whether that party has any possibility of recovery against the party whose joinder is questioned. Montano v. Allstate Indemnity, No. 99-2225, 2000 WL 525592, at *1 (10th Cir. April 14, 2000) (unpublished). Defendants argue that plaintiffs have failed to allege in their amended complaint any specific wrongdoing by Ms. Forlenza or Dr. Walters and that, in any event, any claims against these defendants have no chance of success.
Plaintiffs allege in their amended complaint that Dr. Walters prescribed the drug to Carol Jochim and that Ms. Forlenza was a sales representative for the drug's manufacturer who made sales calls upon Dr. Walters. Plaintiffs then state that they anticipate asserting claims against "the Respondents," which include Ms. Forlenza and Dr. Walters, for strict liability — product defect, strict liability — failure to warn, negligence, fraud, negligent misrepresentation, breach of expressed warranties, breach of implied warranties of fitness for consumption and merchantability, and civil conspiracy. Resolving all disputed questions of fact and all ambiguities in the controlling law in favor of plaintiffs, the court cannot find, at this point in the litigation, that plaintiffs have failed to state a cause of action against Ms. Forlenza and Dr. Walters. And while the claims against Ms. Forlenza may indeed be more tenuous than those asserted against Dr. Walters, the court is not prepared to rule at this early juncture that such claims have no chance of success. Moreover, the court finds that a claim against the prescribing physician may in fact be appropriate, thereby destroying diversity jurisdiction.
The court concludes that defendants have failed to show that joinder of Ms. Forlenza and Dr. Walters is improper at this stage of the litigation. Accordingly, the court finds that complete diversity does not exist, and the case should be remanded to state court. Because the court has determined that diversity is lacking, it need not decide whether the amount in controversy requirement has been met.
IT IS THEREFORE ORDERED that plaintiffs' motion to remand (Doc. 6) is granted. The court directs the clerk of the court to remand this case to the District Court of Johnson County, Kansas.