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Plummer v. Biomet, Inc.

United States District Court, N.D. Alabama, Southern Division

January 30, 2017

BOBBY G. PLUMMER, JR., et al., Plaintiffs,
BIOMET, INC., et al., Defendants.



         This 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.).[2] 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).

         Presently 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.


         A. Complaint

         Mr. 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. (Id.).

         The 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).

         On 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).

         B. Notice of Removal

         In 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).[3] 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).[4] 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. at 12-15).

         II. Discussion

         An 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).

         When a 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).

         On a 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 ...

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