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Feheley v. Forest Pharmaceuticals, Inc.

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

October 20, 2017

KEVIN J. FEHELEY, as Administrator and Personal Representative of the Estate of Sheila Clay Joubran, deceased, and as Guardian and Conservator of Kevin J. Feheley, Jr., an incapacitated person, Plaintiff,
v.
FOREST PHARMACEUTICALS, INC., FOREST LABORATORIES, INC., and MARY JOUBRAN, as Personal Representative of the Estate of Elias Joubran, deceased, Defendants.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS United States District Judge.

         This civil action was originally filed in the Circuit Court of Calhoun County, Alabama, by the Plaintiff, Kevin J. Feheley, in his capacity as both the administrator and personal representative of the Estate of Sheila Clay Joubran, who is deceased, and also as the guardian and conservator of Kevin J. Feheley, Jr., an incapacitated person. (Doc. 1-2 at 5). The suit names as defendants Forest Pharmaceuticals, Inc. (“Forest Pharm”) and Forest Laboratories, Inc. (“Forest Labs”) (hereinafter collectively referred to as “Forest”). It also names as a defendant Mary Joubran, the personal representative of the Estate of Elias Joubran, who is deceased. On August 18, 2017, Forest Labs alone, removed this case to this district and division, alleging that jurisdiction is proper pursuant to 28 U.S.C. § 1332. (Doc. 1). The remaining Defendants' consent to removal was not obtained.[1]

         Against Forest, the Complaint sets out the following claims: “Products Liability Under [the] AEMLD and Strict Liability Pursuant to §402A of the Restatement (Second) of Torts” (Count One); “Product Liability (Failure to Warn)” (Count Two); “Product Liability” (Count Three); “Negligence and Wantonness” (Count Four); “Breach of Express Warranty” (Count Five); “Breach of Implied Warranty” (Count Six); “Misrepresentation, Fraud, Suppression, and Deceit” (Count Seven); and “Civil Conspiracy” (Count Eight). Against all defendants the Plaintiff sets out a claim for “Wrongful Death” (Count Nine). All counts arise out of a tragic incident; on December 30, 2015, Elias Joubran shot Sheila Clay Joubran, his wife, and then shot and killed himself. As a result of her injuries, Sheila Joubran died shortly after Elias. At the time of those events, Elias Joubran had been prescribed, and was taking, a drug called “Lexapro.” Forest is the

marketer, promoter, seller, manufacturer, distributor, and entity which did manufacture, create, design, test, label, package, distribute, market, sell, advertise, fail to warn, and otherwise handle and distribute in commerce, the products, Lexapro 10mg tablets.

(Doc. 1-2 at 7).

         This case comes before the Court on the Motion To Remand for lack of jurisdiction filed by the Plaintiff (the “Motion”). (Doc. 11). Forest Labs requested oral argument on the motion. Accordingly, a hearing was held on October 13, 2017. For the reasons stated at the hearing, and in this memorandum opinion, the motion will be GRANTED and this case will be REMANDED to the Circuit Court of Calhoun County, Alabama.

         I. ANALYSIS

         A. General Principles

         “It is by now axiomatic that the inferior courts are courts of limited jurisdiction. They are empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution, and which have been entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of South Alabama v. The American Tobacco Co., et al., 168 F.3d 405, 409 (11th Cir. 1999) (internal citations omitted). “Accordingly, when a federal court acts outside its statutory subject-matter jurisdiction, it violates the fundamental constitutional precept of limited federal power.” Id. (internal citations omitted). “Simply put, once a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue.” Id. at 410 (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868)).

         “A necessary corollary to the concept that a federal court is powerless to act without jurisdiction is the equally unremarkable principle that a court should inquire into whether it has subject matter jurisdiction at the earliest possible stage in the proceedings.” Univ. of S. Ala., 168 F.3d at 410. “Indeed, it is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking.” Id. (citing Fitzgerald v. Seaboard Sys. R.R., 760 F.2d 1249, 1251 (11th Cir. 1985) (per curiam)).

         Furthermore, “[t]he jurisdiction of a court over the subject matter of a claim involves the court's competency to consider a given type of case, and cannot be waived or otherwise conferred upon the court by the parties. Otherwise, a party could ‘work a wrongful extension of federal jurisdiction and give district courts power the Congress denied them.'” Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 1000-01 (11th Cir. 1982) (quoting American Fire & Cas. Co. v. Finn, 341 U.S. 6, 18 (1951)) (internal footnotes and citations omitted). Moreover, “[b]ecause removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly.” Univ. of S. Ala., 168 F.3d at 411 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941)).

         Lastly, Congress has decreed, and the Supreme Court has confirmed, that - with the express exception of civil rights cases that have been removed - orders of remand by district courts based upon certain grounds, including in particular those premised upon lack of subject matter jurisdiction, are entirely insulated from review. More specifically, § 1447(d) provides:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.

28 U.S.C. § 1447(d) (emphasis added); see also Kirchner v. Putnam Funds Trust, 547 U.S. 633, 642 (2006) (recognizing that “‘[w]here the [remand] order is based on one of the grounds enumerated in 28 U.S.C. § 1447(c), review is unavailable no matter how plain the legal error in ordering the remand'”) (citing Briscoe v. Bell, 432 U.S. 404, 413 n.13 (1977)); Milton I. Shadur, Traps for the Unwary in Removal and Remand, 33 no. 3 Litigation 43 (2007); Powerex Corp. v. Reliant Energy Servs., Inc., 127 S.Ct. 2411, 2418 (2007) (holding that when “the District Court relied upon a ground that is colorably characterized as subject-matter jurisdiction, appellate review is barred by § 1447(d)”).

         B. Diversity Jurisdiction

         Forest Labs premises its removal upon this court's diversity jurisdiction. “Diversity jurisdiction exists where the suit is between citizens of different states and the amount in controversy exceeds the statutorily prescribed amount, in this case $75, 000.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001) (citing 28 U.S.C. § 1332(a)). Therefore, removal jurisdiction based upon diversity requires: (1) complete diversity of citizenship between the plaintiff(s) and the defendant(s); and (2) satisfaction of the amount in controversy requirement. The only issue raised in the pending motion is whether there is “complete diversity.”

         1. The Citizenship of the Personal Representatives Is Unclear

         Diversity jurisdiction “requires complete diversity-every plaintiff must be diverse from every defendant.” Palmer v. Hosp. Auth., 22 F.3d 1559, 1564 (11th Cir. 1994). “Citizenship, not residence, is the key fact that must be alleged in the complaint to establish diversity for a natural person.” Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).

         The parties seem to agree[2] that the Plaintiff, and Mary Joubran, in her representative capacity, are both citizens of the state of Alabama-a circumstance which would destroy complete diversity. Accordingly, the dispute requires this Court to determine whether the Plaintiff “fraudulently joined” Mary Joubran. However, because the Complaint is not clear as to citizenship, a word or two on that issue is appropriate.

         For purposes of determining diversity of citizenship, a decedent's personal representative is deemed a citizen of the same state as the decedent. 28 U.S.C. § 1332(c)(2). However, the Complaint fails to allege the citizenship of Mary Joubran. Instead, it states:

Defendant Mary Joubran as Personal Representative of the Estate of Elias Joubran, deceased, resides in Tuscaloosa County in the State of Alabama, and her decedent, Elias Joubran, at the time of his death resided in Calhoun County, Alabama, where he shot Sheila Clay Joubran, and then shot himself. The estate administered by Defendant Mary Joubran as Personal Representative of the Estate of Elias Joubran, deceased, is in Calhoun County.

(Doc. 1-2 at 6, ¶2). Thus, the Complaint focuses on the “residence” of both Mary Joubran and Elias Joubran. However, as the Eleventh Circuit has noted: “Residence alone is not enough. Citizenship is equivalent to ‘domicile' for purposes of diversity jurisdiction. And domicile requires both residence in a state and an intention to remain there indefinitely.” Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1269 (11th Cir. 2013) (internal quotations and citations omitted). ...


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