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Simrell v. Teva Pharmaceutical USA, Inc.

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

August 2, 2018

DANA DIXON SIMRELL, as Administratrix of the Estate of Frank Dixon, Plaintiff,



         This matter is before the court on Plaintiff's Motion to Remand this case to the Circuit Court of Jefferson County, Alabama. (Doc. 11). On March 27, 2018, Defendants Eon Labs, Inc. and Teva Pharmaceuticals USA, Inc., removed this case based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 1). The removing Defendants concede the parties are not completely diverse, but argue that Plaintiff fraudulently joined and/or misjoined the non-diverse Defendants and the court should dismiss them from the action.

         As explained below, this court concludes that the removing Defendants failed to meet their burden of showing by clear and convincing evidence that no Alabama State court could find that Plaintiff's Complaint states a valid cause of action against the resident Defendants. Therefore, the removing Defendants failed to establish fraudulent joinder, and Plaintiff's motion to remand is due to be GRANTED.


         On February 16, 2018, Plaintiff filed this action against Defendants Eon Labs, Inc.; Teva Pharmaceuticals USA, Inc.; CVS Health Corporation; Wyeth Pharmaceuticals, Inc.; Dr. William Maclean; and Dr. Adeeb Thomas in the Circuit Court of Jefferson County, Alabama. (Doc. 1-1).[1] Plaintiff sued the Defendants for their respective roles in allegedly causing Mr. Dixon's death. (Doc. 1-1). The parties agree that the Defendant physicians are the only named Defendants who are Alabama citizens.

         According to the Complaint, Mr. Dixon died on February 18, 2016, of “amiodarone toxicity and amiodarone induced interstitial lung disease.” (Doc. 1-1 at 2). The Complaint alleges the Defendant physicians prescribed Mr. Dixon's amiodarone, but never informed him of the risks associated with the drug or that he was taking the drug for an off-label use. (Id. at 5, 13). Plaintiff also claims the doctors “overprescribed” the drug and continued prescribing it even after Mr. Dixon began suffering severe side effects. (Id. at 8).

         Aside from the facts described above, the Complaint contains no further allegations or details regarding the Defendant physicians' treatment of Mr. Dixon or the basis for their potential liability.


         A defendant may remove a case from state court if the plaintiff could have originally filed the action in federal court. See 28 U.S.C. § 1441(a). Generally, federal courts have jurisdiction over civil cases where the amount in controversy exceeds $75, 000 and complete diversity between the parties exists. See 28 U.S.C § 1332; Triggs v. John Crump Toyota, 154 F.3d 1284, 1287 (11th Cir. 1998) (“every plaintiff must be diverse from every defendant”).

         Even if complete diversity is not present, an action may still be removable if the plaintiff fraudulently joined the non-diverse parties to avoid federal jurisdiction. See Triggs, 154 F.3d at 1287. Joinder is fraudulent in two circumstances: 1) where no possibility exists that the plaintiff can prove a cause of action against the resident defendant; or 2) where the complaint contains outright fraud in the pleading of jurisdictional facts. See id. The Eleventh Circuit has also recognized a related theory-fraudulent misjoinder. Fraudulent misjoinder occurs when a plaintiff joins claims against a non-diverse defendant to the claims against a diverse defendant even though the claims share “no real connection.” See id. at 1289.

         The court determines whether a party has been fraudulently joined “based upon the plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties.” Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). To avoid remand, the removing party must demonstrate by clear and convincing evidence that a plaintiff fraudulently joined a resident defendant. See Florence v. Crescent Res., LLC, 484 F.3d 1293, 1297 n.2 (11th Cir. 2007). To do so, the removing party must show that the plaintiff could not possibly state a claim against the resident defendant in state court. Triggs, 154 F.3d at 1287. See also Tillman v. R.J. Reynolds Tobacco, 340 F.3d 1277, 1279 (11th Cir. 2003) (“[If] there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand the case to state court.”).


         Fraudulent Joinder

         Plaintiff ‘s Complaint asserts two counts against the Defendant physicians- the only two non-diverse Defendants in this case. The first count against them (Count Three of the Complaint) claims that the doctors acted negligently and/or wantonly to cause or allow Mr. Dixon's injuries. The second count against the doctors (Count Four) alleges they violated the Alabama Medical Liability Act by breaching their legal duty of reasonable care, skill, and diligence in treating Mr. Dixon.

         To support these claims, Plaintiff alleges the Defendant physicians negligently cared for and treated Mr. Dixon; negligently prescribed him amiodarone; negligently prescribed him amiodarone for off-label uses not approved by the FDA and in violation of state law; negligently continued prescribing amiodarone to him after he began suffering adverse side effects; and negligently prescribed amiodarone to him for long-term use. (Doc. 1-1 at 25-26). While the Complaint does not provide specific dates on which the doctors treated Mr. Dixon or prescribed ...

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