Opinion
No. 1:01CV418-D-B
February 4, 2002
OPINION GRANTING MOTION TO REMAND
Presently before the court is the Plaintiff's motion to remand this matter to the Circuit Court of Prentiss County, Mississippi. Upon due consideration, the court finds that the motion should be granted and this cause remanded to state court for ultimate resolution.
A. Factual Background
The Plaintiff, a Mississippi resident, filed this action in the Circuit Court of Prentiss County, Mississippi, on September 7, 2001, alleging various state law causes of action arising out of his deceased wife's use of Vioxx and Celebrex, drugs used to treat arthritis. The drug Vioxx is manufactured, marketed, and sold by the Defendant Merck Company, Inc.; the drug Celebrex is manufactured, marketed, and sold by the Defendants G.D. Searle and Co., Pharmacia, Inc., Monsanto Company, and Pfizer, Inc. The Defendant Dr. Dwight Johnson prescribed Vioxx for the Plaintiff's wife in December of 1999; he subsequently prescribed Celebrex for her in February of 2000. The Decedent's prescriptions were filled by the Defendant Karen Holly, a pharmacist in Prentiss County. The Plaintiff's wife later died, allegedly as a result of taking Celebrex and Vioxx.
In the complaint, the Plaintiff alleges, inter alia, that the Defendants' conduct renders them liable under various causes of action including negligence, products liability, and medical malpractice. The Defendants removed the action to this court on November 8, 2001, on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. The Plaintiff subsequently motioned the court to remand this matter to state court.
B. Standard for Remand
The Judiciary Act of 1789 provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). After removal of the case, the plaintiff may move for remand, and "[if] it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." See 28 U.S.C. § 1447(c).
Original federal diversity jurisdiction exists "where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332(a); Sid Richardson Carbon Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 751 (5th Cir. 1996). In this case, there is no dispute that the amount in controversy exceeds $75,000.00. The Plaintiff, however, asserts that the court does not possess diversity jurisdiction because this action is not between citizens of different states, as is required by 28 U.S.C. § 1332.
The Plaintiff and the two individual Defendants, Dr. Dwight Johnson and Karen Holly, are indisputably resident citizens of Mississippi. This fact, however, will not destroy federal diversity jurisdiction if the Plaintiff fraudulently joined both Johnson and Holly in order to defeat diversity. Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir. 1997). But, if the court finds that either Johnson or Holly have not been fraudulently joined, then federal diversity jurisdiction is lacking, and the court must remand this matter to state court. See Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir. 1992) (federal diversity jurisdiction exists only if no plaintiff is a citizen of the same state as any defendant); Wright v. Combined Ins. Co. of America, 959 F. Supp. 356, 361 (N.D.Miss. 1997).
The party alleging fraudulent joinder bears the burden of persuasion, and that burden is quite stringent. See Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir. 2000) ("The burden of persuasion placed upon those who cry 'fraudulent joinder' is indeed a heavy one."). In order to prove that a non-diverse party has been fraudulently joined by a plaintiff hoping to defeat diversity, the removing party must demonstrate either "outright fraud in the plaintiff's recitation of jurisdictional facts," or that there is "absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant[s] in state court." Hart, 199 F.3d at 246.
The Defendants here do not allege outright fraud, so the court must determine whether there is absolutely no possibility that the Plaintiff will be able to establish a cause of action against Johnson or Holly in state court. In making this determination, the court evaluates all of the factual allegations in the Plaintiff's pleadings in the light most favorable to the Plaintiff, and the court examines relevant state law and resolves all uncertainties in favor of the Plaintiff. Hart, 199 F.3d at 246.
Further, in evaluating a claim of fraudulent joinder, the court does not focus on whether the Plaintiff will prevail on the merits of his claims. Instead, the court determines whether there is a possibility that the Plaintiff will be able to state a claim against either Johnson or Holly, the allegedly fraudulently joined individual Defendants. Rodriguez, 120 F.3d at 591; see also B., Inc. v. Miller Brewing Co., 663 F.2d 545, 550 (5th Cir. Unit A 1981) (holding that, to successfully move for remand, plaintiff's burden is "much lighter" than that required to survive motion for summary judgment; instead, there need only be "a reasonable basis for predicting that the state law might impose liability on the facts involved" in order for case to be remanded).
As set forth below, the court finds that the Defendants have not established that there is no possibility that the Plaintiff will be able to state a claim against the individual Defendant Dr. Dwight Johnson. Accordingly, federal jurisdiction is not present, and this cause shall be remanded to state court pursuant to 28 U.S.C. § 1447(c).
C. Discussion
Whether a case states a cognizable claim against a defendant is determined by reference to the allegations made in the plaintiff's original pleadings, although the court may "pierce" those pleadings in making its determination. B., Inc., 663 F.2d at 549; Wheeler v. Frito Lay, Inc., 743 F. Supp. 483, 485 (S.D.Miss. 1990). In the case at bar, the Plaintiff alleges, inter alia, that Dr. Johnson was negligent and committed medical malpractice in prescribing the drugs Vioxx and Celebrex to the Plaintiff's wife.
The Plaintiff has alleged that Dr. Johnson, as the Plaintiff's wife's physician, knew or should have known of the dangerous side effects of Vioxx and Celebrex. See Complaint pp. 13, ¶ 69. The Plaintiff further alleges that Dr. Johnson's prescribing of these medications to the Plaintiff's wife represents a deviation from the standard of care generally exercised by physicians under like or similar circumstances, and rises to the level of medical negligence. See Complaint pp. 13-14, ¶¶ 69-70.
Upon careful review of the parties' submissions, the court finds that the scenario set forth in the Plaintiff's pleadings, if true, could possibly result in liability being imposed on Dr. Johnson for his alleged tortious acts. The Plaintiff has sufficiently set forth specific allegations, in paragraphs 69 and 70 of the complaint, demonstrating that Dr. Johnson may have committed medical malpractice. See, e.g., Miles v. Catchings Clinic, 601 So.2d 47 (Miss. 1992) (recognizing cause of action for medical malpractice under Mississippi law based on physician's negligence in prescribing medication); Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss. 1987) (setting forth elements of claim for medical malpractice under Mississippi law); Boyd v. Lynch, 493 So.2d 1315, 1318 (Miss. 1986) (holding that plaintiff has duty, at trial, to present expert medical testimony identifying requisite standard of care, and that defendant physician failed to conform to that standard).
In addition, the Defendants assert that the Plaintiff cannot plead both that the drug company Defendants withheld information concerning these drugs and their potential side effects, and also plead that Dr. Johnson knew or should have known of the dangerous side effects of the drugs. It is axiomatic and long-established, however, that "[a] party may . . . state as many separate claims or defenses as the party has regardless of consistency . . ." Fed.R.Civ.P. 8(e); see Guy James Constr. Co. v. Trinity Indus., Inc., 644 F.2d 525, 530 (5th Cir. Unit A 1981) ("[a] party may plead alternative and inconsistent facts or remedies against several parties without being barred."). As for the Defendants' argument that caselaw from other federal circuits and districts disallow pleading in the alternative under certain circumstances, the court reminds the parties that it is bound by the Fifth Circuit's pronouncements on this issue, which are succinctly stated in Guy James Construction Company.
As such, the court finds that Dr. Johnson faces potential liability for his actions because the Defendants have not demonstrated that there is absolutely no possibility that the Plaintiff will be able to establish a cause of action against Johnson in state court.
D. Conclusion
In sum, the Plaintiff's complaint, taking all allegations set forth as true, at least raises the possibility that he could succeed in establishing a tort claim against the Defendant Dr. Johnson under Mississippi law. Accordingly, Johnson's citizenship cannot be ignored for the purposes of determining subject matter jurisdiction. His presence in this civil action means that the complete diversity of citizenship necessary to maintain federal jurisdiction over this case is absent. As such, this cause shall be remanded to the Circuit Court of Prentiss County for ultimate resolution. A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING MOTION TO REMAND
Pursuant to an opinion issued this day, it is hereby ORDERED that
(1) the Plaintiff's motion to remand (docket entry 7) is GRANTED; and
(2) this cause is hereby REMANDED to the Circuit Court of Prentiss County, Mississippi.
SO ORDERED.