United States District Court, N.D. Alabama, Southern Division
DANA DIXON SIMRELL, as Administratrix of the Estate of Frank Dixon, Plaintiff,
TEVA PHARMACEUTICALS USA, INC., et al., Defendants.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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). 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.
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).
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
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
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.
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.”).
‘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.
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 ...