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Estate of Brockel v. Purdue Pharma L.P.

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

January 18, 2018

THE ESTATE OF BRUCE BROCKEL, Deceased, by and through DONNA BROCKEL, as personal representative, Plaintiff,
v.
PURDUE PHARMA L.P., et al., Defendants.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion to Remand this action to the Circuit Court of Mobile County, Alabama (Doc. 20), Defendant Purdue Pharma L.P.'s Opposition to Plaintiff's Motion to Remand as to the Manufacturer Defendants (Doc. 29), and Plaintiff's Reply to Defendant Purdue Pharma LP's Opposition to Plaintiff's Motion to Remand (Doc. 46). For the reasons set forth herein, the undersigned Magistrate Judge recommends that Plaintiff's motion be granted and that this action be remanded to the Circuit Court of Mobile County, Alabama.

         I. PROCEEDINGS

         On October 25, 2017, Plaintiff filed a wrongful death action against Defendants in the Circuit Court of Mobile County, Alabama, which was docketed as Civil Action Number 2107-CV-902787. Plaintiff alleges that Brockel, the decedent, committed suicide on August 7, 2017, as the result of the actions of the various Defendants in manufacturing, marketing, selling, distributing, and/or prescribing harmful and addictive opioids and drugs to him to treat chronic pain. (Doc. 1-1). The defendants are two physicians who treated Brockel, their practices, a pharmacy that filled prescriptions for pain medication prescribed to Brockel, and six companies that manufacture, market, sell, and distribute the pain medications that Brockel took. (Doc. 1-1). Plaintiff has asserted claims of negligence, wantonness, product liability, fraud, misrepresentation, suppression, concealment, deceit, unjust enrichment, and civil conspiracy against all Defendants and a medical malpractice claim against the physician defendants only. (Id).

         Defendant Purdue Pharma L.P. (“Purdue”) filed a notice of removal, pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, removing the action to this Court on November 27, 2017. (Doc. 1). In its notice of removal, Purdue alleged that removal was proper pursuant to 28 U.S.C. § 1332(a) because there is complete diversity of citizenship between Plaintiff and all properly joined defendants and the amount in controversy exceeds the sum of $75, 000. (Id. at p. 4). Plaintiff has moved to remand this case on the ground that Purdue has failed to meet its burden of proving that there is complete diversity of citizenship because it claims the physicians, their practices, and the pharmacy, who are indisputably residents of the same state as Plaintiff, were not fraudulently joined or otherwise misjoined. (Doc. 20 at pp. 2-10).

         II. DISCUSSION

         Because Purdue removed this case to federal court, it has the burden of proving that federal jurisdiction exists. See Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998); Brown v. Endo Pharmaceuticals, Inc., 38 F.Supp.3d 1312, 1321 (S.D. Ala. 2014). “Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly, ” and “all doubts about jurisdiction should be resolved in favor of remand to state court.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (emphasis added); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) (holding that any questions or doubts are to be resolved in favor of returning the case to state court). Generally, federal diversity jurisdiction requires complete diversity between the plaintiffs and the defendants; however, the doctrine of fraudulent joinder “provides an exception to the requirement of complete diversity.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998), quoted in Brown, 38 F.Supp.3d at 1321. Purdue claims that the physicians, their practices, and the pharmacy, all of whom are Alabama residents, were fraudulently joined or misjoined, and therefore, federal jurisdiction is proper in this case based on diversity of citizenship. (Doc. 1 at pp. 13-14). Purdue also argues that this Court should sever the claims against the providers from the claims against the manufacturers thereby creating complete diversity between Plaintiff and the manufacturer defendants. (Id. at pp. 7-12).

         A. Fraudulent Joinder

         The legal standard to establish fraudulent joinder in this district was recently succinctly set forth in McKenzie v. Janssen Biotech, Inc., Civ. A. 17-0111-WS-B, 2017 WL 2670738, at *3-4 (S.D. Ala. June 21, 2017):

“In a removal case alleging fraudulent joinder, the removing party has the burden of proving that ... there is no possibility the plaintiff can establish a cause of action against the resident defendant.” Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1380 (11th Cir. 1998) (citation omitted); see also Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011) (“To establish fraudulent joinder, the removing party has the burden of proving by clear and convincing evidence that ... there is no possibility the plaintiff can establish a cause of action against the resident defendant”) (citation and internal marks omitted).
“The burden of establishing fraudulent joinder is a heavy one.” Pacheco de Perez, 139 F.3d at 1380; see also Stillwell, 663 F.3d at 1332 (similar). “If there is even a possibility that a state court would find that the complaint states a cause of action against ... the resident defendant [ ], the federal court must find that the joinder was proper and remand the case to the state court.” Stillwell, 663 F.3d at 1333 (citations omitted); see also Pacheco de Perez, 139 F.3d at 1380 (“Where a plaintiff states even a colorable claim against the resident defendant, joinder is proper and the case should be remanded to state court.”). Thus, the plaintiff “need only have a possibility of stating a valid cause of action in order for the joinder to be legitimate.” Stillwell, 663 F.3d at 1333 (citation omitted); see also Ullah v. BAC Home Loans Servicing LP, 538 F. App'x 844, 846 (11th Cir. 2013) (adopting the “even a possibility” formulation and explaining that “[t]he standard for evaluating whether the plaintiff can establish a cause of action against the resident defendant is very lenient”).
Significantly, the fraudulent joinder standard differs from, and is less stringent than, the Twombly/Iqbal “plausibility” test that governs motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Kimball v. Better Business Bureau of West Florida, 613 F. App'x 821, 823 (11th Cir. 2015) (“Notably, the standard for assessing fraudulent joinder differs from the one used for Rule 12(b)(6) motions to dismiss [.]”). Whereas the Twombly test “asks for more than a sheer possibility that a defendant has acted unlawfully, ... all that is required to defeat a fraudulent joinder claim is a possibility of stating a valid cause of action.” Stillwell, 663 F.3d at 1333 (citations omitted). Unlike the plausibility test that governs Rule 12(b)(6) motions in federal court, the Eleventh Circuit utilizes a possibility test for fraudulent joinder that incorporates pleading standards applicable in state court.
Under Alabama law, “dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief.” Stovall v. Universal Const. Co., 893 So.2d 1090, 1101 (Ala. 2004) (citations omitted); see also Ex parte Austal USA, LLC, __ So.3d __, 2017 WL 836567, *5 (Ala. Mar. 3, 2017) (“a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief”) (citation and internal quotation marks omitted); Mooneyham v. State Bd. of Chiropractic Examiners, 802 So.2d 200, 203 (Ala. 2001) (“[m]otions to dismiss under Rule 12(b)(6) should be granted sparingly”) (citation omitted). Thus, Alabama law provides that “[t]he dismissal of a complaint is not proper if the pleading contains even a generalized statement of facts which ...

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