Opinion
CIVIL ACTION No. 02-3778, SECTION: I/5
September 17, 2003
ORDER AND REASONS
Plaintiff, John Oiler, has filed a motion to remand this action to the state court from which it was removed. For the following reasons, plaintiffs motion to remand is DENIED.
Rec. Doc. No. 3.
BACKGROUND
On July 3, 2003, plaintiff, John Oiler, filed a petition in the Orleans Parish Civil District Court, State of Louisiana, alleging that plaintiff suffered personal injuries due to the death of his wife which was caused by the negligence of defendants Biomet Orthopedics ("Biomet") and Howmedica Osteonics Corp. ("Howmedica"). Plaintiff alleges that defendants were the manufacturer and/or producer and/or distributor of the hip replacement device received by Debra Ann Oiler and used in a hip replacement surgery. Plaintiff further alleges that his wife's death was caused by various infections arising from the materials and prosthesis manufactured, produced, or distributed by defendants. Specifically, the petition alleges that defendants were negligent in failing to properly screen, procure, process and distribute materials used in Ms. Oiler's hip replacement device. The petition states that the hip replacement surgery took place at Memorial Medical Center and that it was performed by Dr. Chad W. Millet, M.D. However, the petition contains no allegations of negligence or medical malpractice as to either Memorial Medical Center or Dr. Millet.Biomet was served with the petition on December 10, 2002. On December 20, 2002, Biomet, joined by Howmedica, timely removed the case to this Court alleging jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332. It is undisputed that Biomet and Howmedica are diverse from plaintiff. On January 9, 2003, plaintiff filed a motion to remand this action, contending that while no non-diverse parties were named in this lawsuit, remand is appropriate because he is procedurally barred under Louisiana law from joining non-diverse health care providers in this action prior to an administrative review of his medical malpractice claim by a medical review panel. Plaintiff further asserts that he intends to add non-diverse defendants to this action upon completion of the Medical Review Panel process. Because of the future destruction of diversity, plaintiff asserts, this Court should remand this action. Defendants oppose remand on the grounds that the only named defendants in this case are diverse from plaintiff and, moreover, plaintiff has not alleged any cause of action against any non-diverse defendant in his state court petition.
Rec. Doc. No. 1, Notice of Removal, ¶ 2.
Rec. Doc. No. 1, Notice of Removal, ¶¶ 4-6. Federal jurisdiction based on diversity requires complete diversity of citizenship and an amount in controversy exceeding $75,000.00 exclusive of interest and costs. 28 U.S.C. § 1332. The notice of removal alleges that plaintiff, individually and as a surviving spouse, is a citizen of Louisiana. Id. ¶ 4. Defendant Biomet is an Indiana corporation with its principle place of business in Indiana. Id. ¶ 5. Defendant Howmedica is a New Jersey corporation with its principle place of business in New Jersey. Id. ¶ 6. Biomet noted that "ABC Manufacturing Company" and "ABC Insurance Company," named as defendants in the state court petition, could not, for purposes of removal, be identified as Louisiana citizens. Id. Finally, Biomet alleged that due to the cause of action and nature of injuries alleged in the plaintiffs petition, it was facially apparent that the amount in controversy exceeds $75,000.00 exclusive of interest and costs. Id. ¶ 7.
Rec. Doc. No. 3, PL Mem in Support of Mot. to Remand, at 4.
Rec. Doc. No. 3, PL Mem. in Support of Mot. to Remand, at 8.
LA WAND ANALYSIS A.
Pursuant to 28 U.S.C. § 1441 (a), an action filed in state court may be removed to federal court if the action is one over which the federal court has subject matter jurisdiction. The burden of establishing federal jurisdiction is on the party seeking removal. Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993) (citing Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988)). However, removal jurisdiction is to be strictly construed as its application "deprives a state court of a case properly before it and thereby implicates important federalism concerns." Frank v. Bear Stearns Co., 128 F.3d 919, 922 (5th Cir. 1997). Accordingly, any doubts about removal must be construed against removal and in favor of remanding the case back to state court. See Vasquez v. Alto Bonito Gravel Plant Corp., 56 F.3d 689, 694 (5th Cir. 1995).
Section 1441(a) states:
"Except as otherwise expressly provided by Act of Congress, 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 place where such action is pending. . . .
In determining whether this Court has jurisdiction over the removal, the Court looks to the claims in the state court petition as it exists at the time of removal. Cavallini v. State Farm Mu. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995); Englande v. SmithKline, 206 F. Supp.2d 815, 816 (E.D.La. 2002) (Feldman, J.); Maquar v. Synthes, 1992 WL 111199, *1 (E.D. La.) (Mentz, J.); Doe v. Cutter Biological, 774 F. Supp. 1001, 1004 (E.D.La. 1991) (Feldman, J.) ("In deciding jurisdictional issues, the Court examines the petition at the time the removal petition was filed.") (citing In re Carter, 618 F.2d 1093, 1101 (5th Cir. 1980)). Accordingly, a post-removal amendment that attempts to alter the causes of action alleged in the state petition will not defeat jurisdiction of a case that is properly removed. See Cavallini, 44 F.3d at 264 (noting that [w]ithout such a rule, disposition of the [jurisdictional] issue would never be final"). However, if a court permits a post-removal amendment which joins a non-diverse party, such joinder will divest the court of jurisdiction and remand is required. 28 U.S.C. § 1447(e); Owen Equip. Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978); Cobb v. Delta Exports, Inc., 186 F.3d 675, 677 (5th Cir. 1999) (affirming Hensgens); Hensgens v. Deere Co., 833 F.2d 1179, 1181 (5th Cir. 1987) (noting that "most post-removal developments . . . will not divest the court of jurisdiction but an addition of a nondiverse defendant will do so") (citing IMFC v. Prof I Services of Florida v. Latin Am. Home Health, 676 F.2d 152, 157-58 (5th Cir. 1982)).
Louisiana law requires that medical malpractice claims be administratively reviewed by a medical review panel prior to commencement of a lawsuit against a Louisiana health care provider:
No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section.
La. R.S. 40:1299.47 B(1)(a)(i). If a plaintiff files a lawsuit in a Louisiana state court prior to submitting a medical malpractice claim to the review panel, the medical malpractice claim is subject to the dilatory exception of prematurity which, if sustained, results in a dismissal of that claim without prejudice. See Englande, 206 F. Supp.2d at 817 (citing Brister v. Southwest Louisiana Hosp. Ass'n, 624 So.2d 970 (La.App. 3d Cir. 1993)); Johnson v. Scimed, 92 F. Supp.2d 587, 590 (W.D.La. 2000) (Payne, J.) (citing Yokem v. Sisters of Charity of the Incarnate Word, 742 So.2d 906, 909 (La.App. 2d Cir. 1999); Dunn v. Bryant, 701 So.2d 696, 699 (La.App. 1st Cir. 1997)); Cutter Biological, 774 F. Supp. at 1004 (citation omitted). In such a case, if a health-care-provider-defendant does not timely raise the exception of prematurity in response to such a lawsuit, the defendant's right to have the medical malpractice claim administratively reviewed prior to a lawsuit is waived. Barraza v. Scheppegrell, 525 So.2d 1187, 1188 (La.App. 5th Cir. 1988).
B.
Since the filing of the instant motion to remand, plaintiff has attempted to amend her petition to allege that, pursuant to Louisiana R.S. § 40:1299 et seq., a medical review panel has been convened and at the conclusion of those proceedings, plaintiff "will add all Louisiana qualified health care providers to this action." Additionally, plaintiff has submitted to this Court a copy-of a letter addressed to the Louisiana Commissioner of Administration requesting that a medical review panel be convened to investigate allegations of medical malpractice against various Louisiana health care providers arising from Ms. Oiler's hip replacement procedure. Therefore, at the outset, this Court must determine whether a proposed amendment to plaintiffs state petition or other documentary evidence beyond plaintiffs state court petition may be considered in determining whether diversity jurisdiction existed at the time this action was removed.
Rec. Doc. No. 12. Mot. for Leave to Amend Pet. for Damages, Amended Pet., ¶ I.
Rec. Doc. No. 3, PL Mem. in Support of Mot. to Remand, Ex. A, Letter to Commissioner of Administration dated July, 3.
In Cavallini v. State Farm Mu. Auto Ins. Co., 44 F.3d 256 (5th Cir. 1995), the Fifth Circuit addressed the issue of whether a district court erred in refusing to consider the plaintiffs' affidavits and a proposed amended complaint to determine whether jurisdiction existed at the time of removal. The plaintiffs' original state complaint asserted claims against both diverse and non-diverse parties. Id. at 258. The defendants claimed that the non-diverse defendant was fraudulently joined. See id. at 259. Under the "fraudulent joinder" doctrine, the removing party "must prove that there is no possibility that the plaintiff will 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 pleading of jurisdictional facts." Id. (citation omitted). The district court held that the non-diverse defendant was fraudulently joined because, at the time of removal, the plaintiffs state complaint did not allege facts sufficient to support a cause of action against the non-diverse defendant under state law. Id. at 259 n. 8. Accordingly, the district court dismissed the claims against the non-diverse defendant and retained jurisdiction over the action. Id.
The plaintiffs argued, inter alia, that the district court erred when it refused to consider their affidavits and a proposed amended complaint in ruling on the fraudulent joinder/remand issue. Id. at 260. First addressing the issue of affidavits, the Fifth Circuit stated:
While we have frequently cautioned the district courts against pretrying a case to determine removal jurisdiction, we have also endorsed a summary judgment-like procedure for disposing of fraudulent joinder.Id. at 263. Accordingly, the Court acknowledged that a fraudulent joinder claim may be resolved by "piercing the pleadings" and considering affidavits and deposition testimony. Id. (citation omitted); see also Badon v. R J R Nabisco, 224 F.3d 382, 389-90 (5th Cir. 2000) (citing Fifth Circuit cases that consistently recognize that evidence outside the pleadings maybe considered to establish the viability of causes of action alleged in a state complaint when confronting claims of fraudulent joinder).
However, the Court rejected such an approach when the issue was whether, in the first instance, a cause of action against a non-diverse defendant was present in a state court petition:
[T]he Cavallinis did not cite, nor have we found, any case in which such evidence has been considered to determine whether a claim has been stated against the nondiverse defendant under a legal theory not alleged in the state court complaint. In short, the Cavellinis cannot rely on their affidavits to state a . . . claim against [the non-diverse defendant].Id. at 263. Similarly, the Court held that the district court did not err by denying the plaintiffs' motion to amend their state complaint "because a complaint amended post-removal cannot divest a federal court of jurisdiction." Id. at 264 ( citing Pullman Co. v. Jenkins, 305 U.S. 534, 537 59 S.Ct. 347, 348-49, 83 L.Ed. 334 (1939)). The Court elaborated:
The rationale for determining removal jurisdiction on the basis of claims in the state court complaint as it exists at the time of removal is obvious. Without such a rule, disposition of the issue would never be final, but would instead have to be revisited every time the plaintiff sought to amend the complaint to assert a new cause of action against the nondiverse defendant, all at considerable expense and delay to the parties and the state and federal courts involved. Limiting the removal jurisdiction question to the claims in the state court complaint avoids that unacceptable result, and permits early resolution of which court has jurisdiction, so that the parties and the court can proceed with, and expeditiously conclude, the litigation.Id.
Although the instant case differs factually from Cavellini in that defendants do not advance a fraudulent joinder claim (because plaintiffs state petition alleges claims against diverse defendants only), the Court finds that under the particular facts of this case, the reasoning of Cavellini controls the scope of this Court's inquiry with respect to whether subject matter jurisdiction exists. Accordingly, the Court declines to consider plaintiffs post-removal motion to amend his state petition and letter to the Commissioner of Administration to the extent that plaintiff relies on such evidence to add a legal theory or cause of action not originally alleged in his state petition.
The Court is aware that a post-removal amendment joining a non-diverse party, if permitted under the test announced in Hensgens v. Deere Co., 833 F.2d 1179 (5th Cir. 1987), would divest this Court of jurisdiction. See 28 U.S.C. § 1447(e); Cobb, 186 F.3d at 681 (holding that where a district court permits post-removal joinder of a non-diverse, disposable party, remand is required). In the instant case, plaintiffs proposed amended petition for damages does not seek to join the Louisiana health care providers. It merely reiterates the assertions made in support of his motion to remand, i.e., that he intends to join non-diverse defendants at the conclusion of the medical panel review proceedings. See Rec. Doc. No. 12, Amended Petition for Damages, ¶ I. Therefore, this case does not implicate either section 1447(e) or the rule announced in Cobb.
C.
In support of remand, plaintiff relies on cases from the Eastern and Western Districts of Louisiana addressing the issue of whether anon-diverse health care provider is "fraudulently joined" when a lawsuit, filed in a Louisiana state court prior to the completion of the medical review panel proceedings, raises medical malpractice claims. See Englande v. SmithKline, 206 F. Supp.2d 815 (E.D.La. 2002) (Feldman, J.) (finding no fraudulent joinder and granting remand where non-diverse health care provider named in state lawsuit was dismissed by plaintiff pending completion of medical review panel); Johnson v. Scimed, Inc., 92 F. Supp.2d 587 (W.D.La. 2000) (Payne, J.) (granting remand and finding no fraudulent joinder in products liability/medical malpractice case where state petition alleged medical malpractice claims against non-diverse health care providers prior to completion of a medical review panel); Kelly v. Danek Medical, Inc., 1994 WL 321074 (E.D.La.) (Beer, J.) (granting remand although non-diverse defendants were not named in state lawsuit in deference to medical review panel process because plaintiff had alleged a cause of action against the non-diverse defendants).In Ohler v. Purdue, 2002 WL 88945 (E.D.La.) (Engelhardt, J), the Court exhaustively discussed the "long unbroken line of cases" in the Eastern District of Louisiana refusing to find fraudulent joinder in cases where a state lawsuit named both a Louisiana health-care-provider-defendant and an out-of-state drug or medical device manufacturer or where the plaintiff alleged a medical malpractice claim in the state petition prior to completion of medical review panel proceedings. Id. at **5-7. The Court explained that in such cases, the medical defendants are merely subject to involuntary dismissal without prejudice, not a dismissal with prejudice, and, therefore, it could not be said that the original petition did not state a cause of action. Id. at *5 (discussing Erdey v. Am. Honda Co., Inc., 96 F.R.D. 593, 596 (M.D.La.) (Parker, J.)); see also Englande, 206 F. Supp.2d at 819 ("The key inquiry to a claim of fraudulent joinder is whether the facts as alleged support the plaintiffs substantive claims against the non-diverse defendants."). Because the state petitions in those cases alleged viable claims against the non-diverse defendants, the defendants could not show that there was "no possibility of recovery under state law or that there is no reasonable basis for predicting recovery." Id. at *7 (citations and internal quotations omitted). This line of cases stands for the proposition that complete diversity does not exist in a products liability/medical malpractice lawsuit where a cause of action is alleged in the state petition against diverse and non-diverse defendants, albeit prematurely, because the non-diverse medical defendants are not fraudulently joined. Therefore, in such a case, remand is appropriate.
See e.g., Englande, 206 F. Supp.2d at 819; Ohler, 2002 WL 88945 at *6; Alexis v. GlaxoSmithKline Corp., 2002 WL 1022261, *2 (E.D.La.) ("Generally, federal courts in this district have held that even if plaintiffs' suit against the defendant doctors is premature, it nevertheless states a potentially viable claim against those defendants in state court [and], thus survives defendants' allegation of fraudulent joinder."); Johnson, 92 F. Supp.2d at 591 (noting that a prematurity defense may be waived or, if exercised, only delays litigation of a stated cause of action); Kelly, 1994 WL 321074 at *2 ("Notwithstanding that the non-diverse defendants have not actually been named as parties yet, the court will not assume diversity jurisdiction because plaintiff has stated a cause of action [against the non-diverse defendants]."); Perry v. McNulty, 794 F. Supp. 606, 608 (E.D.La. 1992) ("While plaintiff may be procedurally barred at this time from proceeding against the non-diverse defendants, [plaintiff] certainly has stated a cause of action that could impose liability on the Louisiana defendants.").
Plaintiffs reliance on these cases is misplaced. It is clear that Biomet and Howmedica are diverse from plaintiff. Moreover, plaintiff has neither joined non-diverse defendants in this action nor alleged facts sufficient to support a medical malpractice cause of action against any non-diverse defendant in his state petition. As noted above, "fraudulent joinder" is not at issue in this case. Nevertheless, plaintiff presses the argument that the "fraudulent joinder" cases support remand because he intends to amend his complaint and join non-diverse health care providers at the conclusion of the medical review panel proceedings.
Plaintiff argues that because a medical review panel has been convened, this case is similar to Kelly v. Danek, 1994 WL 321074 (E.D.La.). In Kelly, the plaintiffs state petition did not name the non-diverse health care providers as defendants. Id. at *1. Nevertheless, the Court held that remand was appropriate because the plaintiff had alleged in the state petition that Louisiana health care providers were joint tortfeasors and that a medical review panel had been convened. Id. at *2. The Court concluded that such allegations were sufficient, in the face of a fraudulent joinder claim, to state a cause of action against the non-diverse defendants. Id.
In the present case, plaintiff argues that in light of the ongoing administrative review and his intention to add Louisiana defendants at the conclusion of the medical review panel proceedings, this Court should remand this action although it was filed against diverse defendants only. When such joinder occurs, plaintiff contends, this Court will no longer have subject matter jurisdiction and remand will be required. Defendants counter that any number of circumstances may affect plaintiffs present intention to join such defendants and if, for whatever reason, plaintiff fails to join non-diverse parties to this lawsuit, defendants' right to a federal forum will be permanently lost. Further, defendants correctly argue that plaintiff has not taken any steps to join non-diverse parties to this lawsuit.
On the record presented, the Court expresses no opinion on the merits of plaintiff s apparent belief that at the conclusion of the medical review panel, the joinder of non-diverse defendants would be automatic.
The Court agrees with other Courts in this district holding that, "[a] possible future destruction of diversity, even by the addition of an indispensable party, is not a proper ground for remand." Lillie v. Wyeth-Ayerst Laboratories, 1994 WL 532091, at *1 (E.D.La.) (Clement, J.); Maquar, 1992 WL 11199, at * 1 (holding that remand is inappropriate where non-diverse defendants are merely contemplated and have not been made parties to the lawsuit). As Judge Clement noted in Lillie, "[t]he fact that plaintiffs would like to have added the non-diverse defendant already, but are barred for procedural reasons from doing so, is simply not enough to justify remand." Lillie, 1994 WL 532091 at * 1. Kelly is not to the contrary. In that case, the Court determined subject matter jurisdiction by reference to allegations made in the state petition at the time of removal. Therefore, plaintiffs reliance on Kelly is unavailing. Plaintiffs state petition is devoid of allegations of liability for Ms. Oiler's death with respect to any non-diverse health care provider. Although the petition does state that Ms. Oiler's surgery was performed by Dr. Chad Millet at Memorial Medical Center, the sole legal theory-of recovery alleged relates only to the negligence of Biomet and Howmedica. Plaintiff has not alleged that non-diverse health care providers are liable, jointly or otherwise, with the named defendants. Moreover, there is no mention of a medical review panel in the state petition. Therefore, this Court cannot find that a cause of action has been alleged as to any defendant other than the defendants named in this action.
Moreover, the Court notes that while plaintiff alleges the citizenship of Biomet and Howmedica in his state petition, the petition is silent as to the citizenship of Dr. Millet. Therefore, this Court will not presume that Dr. Millet is a Louisiana citizen. However, for purposes of the present motion, the Court assumes that Memorial Medical Center, located in New Orleans, is a Louisiana health care provider. See PL Pet. ¶¶ III, IV.
Finally, plaintiff contends that this Court should remand this case in the interest of judicial economy because litigating his asserted claim against the present defendants in federal court is wasteful in light of the future joinder of the Louisiana health care providers. The Court declines plaintiffs invitation to determine its subject matter jurisdiction on the basis of judicial expediency. As Judge Clement succinctly stated in Lillie:
This Court may not remand a case simply because it believes that doing so would be a good idea. The Fifth Circuit has recently reaffirmed that "a district court exceeds its authority if it remands a case on grounds not expressly permitted by controlling statute." Only three such grounds have been recognized: predominance of pendent state claims; lack of subject of matter jurisdiction; and defects in removal procedure. If a case has been properly removed, and the motion for remand is not based on one of these three grounds, the court must retain the caseLillie, 1994 WL 532091 at *1 (quoting Buchner v. F.D.I.C., 981 F.2d 816, 820 (5th Cir. 1993) and citing Thermtron Products, Inc., 423 U.S. 336, 351, 96 S.Ct. 584, 593, 46 L.Ed.2d 542 (1976) ("[W]e are not convinced that Congress ever intended to extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling statute")); see also Johnson, 92 F. Supp.2d at 592 (noting that an interest in judicial economy does not permit a district court to change the rules regarding its jurisdiction).
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of plaintiff, John Oiler, to remand is DENIED.