Opinion
Civil Action No. 3:04-CV-0616-B.
October 25, 2004
MEMORANDUM ORDER
Before the Court is Plaintiff's Motion to Remand, filed April 23, 2004. Finding that Plaintiff did not improperly join a non-diverse defendant, the Court GRANTS the Motion to Remand and ORDERS that the case be remanded to 298th Judicial District Court of Dallas County, Texas.
I. BACKGROUND
After allegedly suffering injuries from her use of Vioxx, Plaintiff Teresa Brannon Ward ("Ward") filed suit in the 298th Judicial District Court of Dallas County, Texas on May 29, 2003, naming Merck Co., Inc. ("Merck") and Charles Richard Everett, M.D. ("Everett") as defendants. Ward and Everett are both citizens of Texas, and Merck is incorporated and has its principal place of business in New Jersey. Ward brought medical malpractice claims against Everett, stemming from his decision to prescribe Vioxx to her.
On February 26, 2004, Everett filed a Motion to Dismiss, Motion for Sanctions and Motion for Severance, arguing that Ward's claims against him should be dismissed for Ward's failure to provide him with an expert report within 180 days of filing suit, pursuant to the Texas Medical Malpractice Liability and Insurance Improvement Act ("TMLIIA"). TEX. REV. CIV. STAT. ANN. art 4590i § 13.01(d). Under the TMLIIA, a plaintiff in a medical malpractice suit must provide an expert report to the defendant detailing the alleged malpractice within 180 days of filing suit, else the court must dismiss the suit. Id. According to Everett, Ward's report was due on November 29, 2003. Because Ward had not provided the expert report, Everett argued her claims against him must be dismissed.
The TMLIIA was recently repealed and reenacted in Texas Civil Practice and Remedies Code § 74.001 et seq. Because this cause of action arose before the TMLIIA was repealed, the Court will refer to the older version of the statute.
On March 24, 2004, Ward filed a motion in state court requesting thirty (30) days to comply with the expert report deadline pursuant to TMLIIA § 13.01(g), asserting that her failure to meet the 180-day deadline was due to negligence. On that same day, Merck removed the case to federal court on the basis of diversity jurisdiction. Merck claimed that because recovery against Everett was now impossible, Everett was improperly joined to prevent removal. Ward filed the instant Motion to Remand on April 23, 2004. The Court now turns to the merits of the parties' arguments.
It is unclear whether Ward's motion for an extra 30 days was filed before or after Merck's removal; however, the Court does not need to decide which was first filed in order to reach its decision.
II. ANALYSIS
Because Merck is the party who removed the case, Merck bears the burden of demonstrating federal subject matter jurisdiction by proving improper joinder. McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 333-34 (5th Cir. 2004). Improper joinder is typically proved in one of two ways: (1) by demonstrating actual fraud in the pleading of jurisdictional facts or (2) by showing the inability of the plaintiff to establish a cause of action against the non-diverse party in state court. Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003). Merck's argument focuses only on the second method; therefore, Merck must show there is no reasonable basis for this Court to predict that Ward might be able to recover against Everett. Travis, 326 F.3d at 647.
The Fifth Circuit has recently adopted the term "improper joinder" instead of "fraudulent joinder." Smallwood v. Ill. Cent. R.R. Co., ___ F.3d ___, 2004 WL 2047314, at *1 n. 1 (5th Cir. Sept. 10, 2004). This Court will, thus, use the term improper joinder throughout this Order.
Merck asserts that there is no possibility of recovery against Everett because Ward failed to meet the 180-day deadline for providing expert reports, and the court must dismiss her claims against Everett. (Merck's Response in Opposition to Plaintiffs' Memorandum in Support of Motion to Remand ("Merck's Response"), pp. 4-5) Ward responds by noting that she filed a motion for 30 days to comply with the expert report deadline and that her failure to meet the deadline was due to negligence. (Plaintiffs' Memorandum in Support of Motion to Remand, p. 4) Texas courts have granted plaintiffs extra time to comply with the 180-day deadline, even if the request for extra time was filed outside the 180-day deadline. Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 403-04 (Tex.App.-Texarkana 1999, pet. denied) (finding abuse of discretion in not permitting 30 day extension to file expert report, even though request for extension was not made within 180-day deadline); see also Horsley-Layman v. Angeles, 968 S.W.2d 533, 536 (Tex.App.-Texarkana 1998, no pet.). Therefore, at the time the removal was filed, it was still possible that the state court could grant Ward another 30 days to provide her expert report, and her claims against Everett would remain in the suit.
Regardless of whether Ward's motion for an extra 30 days will ultimately be granted by the court, removal would be improper because the dismissal of Everett, who was initially properly joined, would be involuntary. A case may not be removed if the non-diverse defendant is involuntarily dismissed from the suit. Weems. v. Louis Dreyfus Corp., 380 F.2d 545, 548-49 (5th Cir. 1967); Ratcliff v. Fibreboard Corp., 819 F. Supp. 584, 586 (W.D. Tex. 1992) (holding a case that is not removable on its initial pleadings can become removable only by a voluntary act of the plaintiff).
Finally, Merck argues that Ward's actions demonstrate she had no intention of pursuing her claims against Everett and simply joined him to avoid removal. (Merck's Response, p. 7) Here, Ward has demonstrated an attempt to bring suit against Everett by filing a motion for an extra 30 days to comply with the TMLIIA and keep Everett in the suit. Further, in the Joint Motion for Continuance and Entry of Docket Control Order filed in state court on March 5, 2004, and signed by attorneys for all the parties, the parties stated that they had exchanged written discovery and obtained medical and other records. Presumably, Everett was involved in this process. Given the evidence that Ward is trying to pursue her claims against Everett, Merck has simply not met its burden of demonstrating that Ward had no intention of prosecuting suit against Everett.
III. CONCLUSION
In sum, Merck has not demonstrated that there is no reasonable basis for this Court to predict a recovery against Everett, the non-diverse defendant. Because Merck has not met its burden of proving improper joinder, this Court has no subject matter jurisdiction. Therefore, the Court GRANTS Ward's Motion for Remand and ORDERS that this case be remanded to the 298th Judicial District Court for Dallas County, Texas.
SO ORDERED.