United States District Court, N.D. Alabama, Southern Division
BOBBY G. PLUMMER, JR., et al., Plaintiffs,
BIOMET, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER 
G. CORNELIUS, U.S. MAGISTRATE JUDGE
lawsuit was originally filed in the Circuit Court of
Jefferson County by Plaintiffs, Bobby G. Plummer, Jr., and
Cary Y. Plummer. (Doc. 1-1). This matter arises from a 2015
hip surgery performed on Mr. Plummer, and originally named
six defendants. (Id.). On March 2, 2016,
Defendants Biomet, Inc., and Biomet Orthopedics, LLC (the
"Biomet Defendants"), removed to this court on the
basis of diversity jurisdiction. (Doc. 1). The Biomet
Defendants contend the remaining defendants, Jazz Medical,
Inc., and Ray Flournoy, were fraudulently joined, meaning:
(1) their citizenship can be ignored for purposes of
diversity jurisdiction: and (2) their consent to removal was
not required. (Id. at 3).
pending is Plaintiffs' motion to remand. (Doc. 7). The
Biomet Defendants have responded (Doc. 13), and Plaintiffs
have replied (Doc. 14). Accordingly, the motion is ripe for
adjudication. As explained below, Plaintiffs' motion to
remand is due to be granted.
BACKGROUND AND PROCEDURAL HISTORY
Plummer underwent surgery at St. Vincent's Hospital in
2006, during which Dr. David S. Buggay replaced his left hip
with a metal-on-metal hip arthroplasty. (Doc. 1-1 at 5). On
June 23, 2015, Dr. Buggay performed a revision of the hip
arthroplasty to replace the original metal-on-metal implant
with a new femoral implant. (Id.). The complaint
alleges the replacement implant was designed, manufactured,
marketed, promoted, and sold by the Biomet Defendants.
(Id. at 4). The complaint further alleges Jazz
Medical served as the sales and marketing arm of the Biomet
Defendants. (Id.). Plaintiffs contend Ray Flournoy
was an agent, servant, or employee of Jazz Medical.
(Id. at 4-5). Specifically, the complaint alleges
Flournoy served as a sales representative who provided
information to doctors about the proper Biomet implants to be
used in surgeries. (Id. at 5). Plaintiffs allege
this information included the selection and sizing of
implants and that Flournoy regularly was present and provided
technical assistance to doctors during surgeries.
complaint alleges Flournoy was present in the operating room
during Mr. Plummer's 2015 revision surgery.
(Id.). During the surgery, Dr. Buggay noticed the
"femoral head or ball of the proposed implant appeared
to be too large . . . ." (Id. at 5-6). Dr.
Buggay allegedly asked Flournoy whether the implant was the
appropriate size. (Id. at 6). After consulting via
telephone with the engineering department of the Biomet
Defendants, Flournoy told Dr. Buggay the implant was indeed
the correct size. (Id.). Dr. Buggay then proceeded
with the surgery and implanted the new prosthesis.
(Id.). Following the surgery, Plummer noticed his
left leg was longer than his right leg. (Id.).
X-rays confirmed that the new implant was too large, and on
July 17, 2015, Dr. Buggay performed another operation to
remove the over-sized implant and replace it with the correct
implant. (Id. at 6).
these facts, Mr. Plummer asserts claims for negligence,
wantonness, breach of implied warranties, and
misrepresentation. (Id. at 6-9). Plaintiffs also
assert a claim for loss of consortium. (Id. at 9).
Notice of Removal
their notice of removal, the Biomet Defendants agree
Plaintiffs are citizens of Alabama; they further state that
both Biomet Orthopedics, LLC, and Biomet, Inc., are Indiana
citizens for purposes of diversity jurisdiction. (Doc. 1 at
8). Additionally, the notice of removal
does not contest the complaint's allegations that both
Flournoy and Jazz Medical are Alabama citizens. (See
Doc. 1-1 at 4-5; see generally Doc. 1). However, as
noted above, the Biomet Defendants contend Flournoy and Jazz
Medical are fraudulently joined because there is no
possibility Plaintiffs can establish any of the claims
asserted against the non-diverse defendants. (Doc. 1 at
10-15). As discussed in more detail below, the
Biomet Defendants contend Plaintiffs cannot maintain claims
against Flournoy or Jazz Medical: (1) for negligence,
wantonness, or breach of implied warranties because, as
defined under Alabama law regarding product liability claims,
neither of these named defendants was a "seller" of
the over-sized implant; (2) for misrepresentation because the
allegations that Flournoy merely relayed information from
Biomet engineers regarding the over-sized implant do not
state a claim for misrepresentation, much less a claim
against Jazz Medical based on vicarious liability; and (3)
for loss of consortium because, due to the alleged
insufficiency of Plaintiffs' primary claims, there is no
claim to which derivative liability may attach. (Id.
action filed in state court may be removed to federal court
if the federal courts have original subject matter
jurisdiction. 28 U.S.C. § 1441(a). Generally, this means
a federal court must be able to exercise diversity
jurisdiction pursuant to 28 U.S.C. § 1332 or federal
question jurisdiction pursuant to 28 U.S.C. § 1331.
Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332
(11th Cir. 2011). Diversity jurisdiction requires every
plaintiff be of diverse citizenship from every defendant.
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284,
1287 (11th Cir. 1998). Furthermore, the amount in controversy
must exceed $75, 000, exclusive of interest and costs. 28
U.S.C. § 1332(a). "[T]he party invoking the
court's jurisdiction bears the burden of proving, by a
preponderance of the evidence, facts supporting the existence
of federal jurisdiction." McCormick v.
Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002).
case is removed on the basis of diversity jurisdiction, a
court must remand the case to state court if there is not
complete diversity or one of the defendants is a citizen of
the state in which the case was filed. Stillwell,
663 F.3d at 1332 (citing Strawbridge v. Curtiss, 7
U.S. (3 Cranch) 267, 267 (1806); 28 U.S.C. § 1441(b)).
However, if a plaintiff has fraudulently joined a non-diverse
defendant by naming that defendant solely to defeat diversity
jurisdiction, a district court must ignore the presence of
the non-diverse defendant for purposes of determining
diversity jurisdiction. Henderson v. Washington Nat'l
Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006).
motion to remand, the removing party bears the burden of
demonstrating federal jurisdiction, Pacheco de Perez v.
AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998),
which in a case removed on the basis of diversity
jurisdiction means establishing the parties' citizenship,
see Rolling Greens MHP, LP v. Comcast SCH Holdings,
LLC, 374 F.3d 1020, 1022 (11th Cir. 2004). "Federal
courts are courts of limited jurisdiction, and there is a
presumption against the exercise of federal jurisdiction,
such that all uncertainties as to removal ...