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McKenzie v. Janssen Biotech, Inc.

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

June 21, 2017

TIM McKENZIE, et al., Plaintiffs,
v.
JANSSEN BIOTECH, INC., et al., Defendants.

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiffs' Motion for Remand (doc. 34). The Motion has been briefed and is now ripe for disposition.

         I. Background.

         On October 22, 2016, plaintiffs, Tim and Sherrie McKenzie, by and through counsel, filed an unsigned Complaint (doc. 1-1, at 1) against defendants, Janssen Biotech, Inc. and Dr. William Sullivan, in the Circuit Court of Monroe County, Alabama. On February 14, 2017, plaintiffs filed an Amended Complaint (doc. 1-1, at 25) against the same defendants in the same court.[1] The Amended Complaint alleged that plaintiff Tim McKenzie took Remicade to treat his psoriatic arthritis, and that “[t]he drug was prescribed by Dr. William Sullivan.” (Amended Complaint, ¶ 2.) Plaintiffs' pleading further alleged that McKenzie “experienced complications from severe and significant neuropathy” while taking Remicade, and that he suffered injuries. (Id., ¶ 3.) According to the Amended Complaint, McKenzie “and his prescribing health care providers were unaware of the full nature and degree of increased risks associated with the use of Remicade, ” and would have used “other treatments” had they known. (Id., ¶ 4.) In December 2015, McKenzie “was diagnosed with demyelinating polyneuropathy resulting from the administration of the drug, Remicade.” (Id., ¶ 5.)

         The Amended Complaint described the McKenzies as Alabama residents, indicated that Janssen is a Pennsylvania corporation with its principal place of business in Pennsylvania, and identified Dr. Sullivan as “a practicing physician with his principal offices in Fairhope, AL.” (Id., ¶¶ 6-8.) With regard to the timing of filing suit, plaintiffs pleaded that, despite their diligence, they did not and could not have discovered the connection between McKenzie's injuries and Remicade “until a date within the applicable statute of limitations, ” and that defendants had fraudulently concealed “the true risks associated with ingesting Remicade.” (Id., ¶¶ 20-21.) Plaintiffs raised seven state-law causes of action against defendants in their Amended Complaint, to-wit: strict liability (failure to warn), negligence, breach of implied warranty, breach of express warranty, fraud, loss of consortium, and punitive damages. In large part, these claims were pleaded against “defendants” generically, without separating out which factual allegations go with defendant Janssen (the maker of the drug) and which with defendant Dr. Sullivan (the prescribing physician). Nonetheless, plaintiffs now identify four subparagraphs in the negligence claim (Count II) that purportedly relate to Dr. Sullivan, including the following:

“e. Failure to advise that consumption of the drug Remicade could result in severe and disabling side effects, including but not limited to complications arising from serious and significant infection and death;
* * *
“g. Failure to provide timely and/or adequate warnings about the increased potential health risks associated with use of the drug Remicade;
* * *
“i. Failure to provide adequate instructions to doctors and patients to manage and mitigate known risks associated with the use of Remicade; and
“j. Any and all other acts of negligence with respect to the drug Remicade which may be shown at trial.”

(Amended Complaint, ¶ 59.)

         On March 15, 2017, defendant Janssen filed a Notice of Removal (doc. 1) removing this action to this District Court. Federal jurisdiction was predicated on the diversity provisions of 28 U.S.C. § 1332. In the Notice, Janssen conceded that “Dr. Sullivan is a non-diverse defendant” (doc. 1, ¶ 5), whose presence would ordinarily destroy complete diversity and prevent subject matter jurisdiction from attaching pursuant to § 1332.[2] Nonetheless, in the context of this case, Janssen maintained that Dr. Sullivan's “citizenship is not relevant to the removal analysis because he was fraudulently joined solely in an attempt to defeat diversity.” (Doc. 1, ¶ 5.) Now the McKenzies have filed a Motion for Remand (doc. 34) in which they maintain that diversity jurisdiction is lacking because Dr. Sullivan was not fraudulently joined, such that his non-diverse status precludes § 1332 jurisdiction and compels remand to state court. The sole jurisdictional issue presented by the Motion to Remand (and the sole issue on which that Motion turns) is whether Dr. Sullivan was or was not fraudulently joined as a defendant in this action.[3]

         II. Analysis.

         A. Removal Jurisdiction and Burden of Proof.

         A removing defendant must establish the propriety of removal under 28 U.S.C. § 1441 and, therefore, must demonstrate the existence of federal jurisdiction. See, e.g., Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013) (“the burden of establishing removal jurisdiction rests with the defendant seeking removal”); City of Vestavia Hills v. General Fidelity Ins. Co., 676 F.3d 1310, 1313 n.1 (11th Cir. 2012) (“The removing party bears the burden of proof regarding the existence of federal subject matter jurisdiction.”). This burden applies with equal force in the context of a motion to remand. See Connecticut State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009) (“On a motion to remand, the removing party bears the burden of showing the existence of federal subject matter jurisdiction.”). Because removal infringes upon state sovereignty and implicates central concepts of federalism, removal statutes must be construed narrowly, with all jurisdictional doubts resolved in favor of remanding the action to state court. See, ...


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