United States District Court, N.D. Alabama, Western Division
RENE MCDANIEL, as personal representative of the Estate of Earnest McDaniel, Plaintiff,
MYLAN INC., et al., Defendants.
MEMORANDUM OF OPINION
Scott Coogler United States District Judge.
the Court is Plaintiff's motion to remand. (Doc. 4.)
Defendants have timely filed their response. (Doc.
The motion has been fully briefed and is ripe for review. For
the reasons stated below, Plaintiff's motion to remand
(doc. 4) is due to be denied, Plaintiff's motion for
leave to file a second amended complaint (doc. 7) is due to
be granted, and Defendants' motions to dismiss (docs. 1-3
at 219 & 9) are due to be terminated as moot with leave
to re-file after review of Plaintiff's amended complaint.
Rene McDaniel, as personal representative of the Estate of
Earnest McDaniel, brings suit against Mylan Inc, Mylan
Pharmaceuticals Inc, Mylan Technologies Inc., and CVS
Pharmacy LLC (collectively “Defendants”) for the
death of her husband due to a fentanyl overdose. Plaintiff
initially filed suit in the Circuit Court of Pickens County,
Alabama on July 27, 2018. (Doc. 1-1.) Plaintiff's initial
complaint named as a Defendant Dr. Diana Waldrep Warren
(“Dr. Warren”). Both Dr. Warren and the Decedent
were alleged to be citizens of Alabama. (Doc. 1-1 at 3 ¶
September 4, 2018, Dr. Warren filed an unopposed motion for
extension of time seeking an additional ninety days to file a
response to Plaintiff's complaint. (Doc. 1-3 at 60.) In
this request, Dr. Warren asserted that due to her employment
at Whatley Health Services Inc. (“Whatley”),
“the exclusive remedy for the plaintiff against Dr.
Warren, and/or Whatley Health Services is a claim against the
United States under the Federal Tort Claims Act.”
(Id. at 61.) Dr. Warren stated that the Office of
General Counsel for the Department of Health and Human
Services was “reviewing this matter to determine its
obligations to accept this matter for defense.”
(Id. at 62.) On September 5, 2018, the Circuit Court
granted Dr. Warren's motion. (Id. at 71.) On
November 20, 2018, Dr. Warren filed a second unopposed motion
for extension of time. (Id. at 359.) This request
asked for another extension to file a response to the
complaint and reiterated the grounds asserted in Dr.
Warren's prior motion. (Id.) Specifically, Dr.
Warren stated that the Office of General Counsel was still
reviewing the matter and whether a United States Attorney
would be assigned for defense of the claim. (Id. at
360.) The Circuit Court granted Dr. Warren another extension.
(Id. at 369.) Neither the Attorney General nor his
representative ever made an appearance before the Circuit
January 8, 2019, Plaintiff filed a voluntary dismissal as to
Dr. Warren. (Id. at 497.) Accordingly, the Circuit
Court dismissed Dr. Warren on January 9, 2019. (Id.
at 506.) Defendants removed the action to federal court on
February 4, 2019 asserting diversity jurisdiction. (Doc. 1.)
Plaintiff filed a Motion to Remand on March 4, 2019,
asserting that Defendants' removal was untimely. (Doc.
STANDARD OF REVIEW
Court, like all federal courts, is a court of “limited
jurisdiction.” Jackson-Platts v. Gen. Elec. Capital
Corp., 727 F.3d 1127, 1134 (11th Cir. 2013). It is
authorized to hear only those cases falling within “one
of three types of subject matter jurisdiction: (1)
jurisdiction under a specific statutory grant; (2) federal
question jurisdiction pursuant to 28 U.S.C. § 1331; or
(3) diversity jurisdiction pursuant to 28 U.S.C. §
1332(a).” PTA-FLA, Inc. v. ZTE USA, Inc., 844
F.3d 1299, 1305 (11th Cir. 2016) (quoting Baltin v.
Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir.
1997)). A defendant may remove an action initially filed in
state court to federal court if the action is one over which
the federal court has original jurisdiction. 28 U.S.C. §
1441(a). “[A] defendant seeking to remove a case to a
federal court must file in the federal forum a notice of
removal ‘containing a short and plain statement of the
grounds for removal.' ” Dart Cherokee Basin
Operating Co. v. Owens, 135 S.Ct. 547, 553 (2014)
(quoting 28 U.S.C. § 1446(a)).
removal to be proper, the court must have subject-matter
jurisdiction in the case. See Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). Because Defendants
removed this action, they have the burden of establishing
that the case was properly removed. See Wilson v.
Republic Iron & Steel Co., 257 U.S. 92, 97 (1921).
Any doubt about the existence of federal jurisdiction
“should be resolved in favor of remand to state
court.” City of Vestavia Hills v. Gen. Fid. Ins.
Co., 676 F.3d 1310, 1313 (11th Cir. 2012) (internal
citation and quotation marks omitted).
remove an action filed in state court, the defendant must
file notice of removal with the district court within 30 days
of receiving a copy of the initial pleading. 28 U.S.C. §
1446(a)-(b). Where multiple defendants are involved,
“the limitations period for removal expires upon thirty
days from service on the. . . last- served defendant.”
Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d
1202, 1203 (11th Cir. 2008). “Only state-court actions
that originally could have been filed in federal court may be
removed to federal court by the defendant.”
Caterpillar Inc., 482 U.S. at 392. However, if the
case is not removable based on its initial pleadings,
“a notice of removal may be filed within 30 days after
receipt by the defendant, through service or otherwise, of a
copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one
which is or has become removable.” 28 U.S.C. §
crux of Plaintiff's motion is that Defendants should have
known that this Court had jurisdiction over the case based on
her initial pleading under § 1446(b)(1) or, in the
alternative, that Defendants' should have removed the
action within thirty days of receipt of Dr. Warren's
unopposed motions for extension of time under §
1446(b)(3). Essentially, Plaintiff's motion to remand
asks this Court to determine at what point Defendants should
have removed the case to comply with 28 U.S.C. § 1446.
At times Plaintiff's argument, and Defendants'
response in opposition, asks this Court to speculate as to
the ultimate decision the Court would have made if faced with
a hypothetical fraudulent removal scenario. The Court will
not offer the parties an advisory opinion by speculating as
to how it would have ruled had it been faced with a removal
based on an assertion of fraudulent joinder. Instead, the
Court will answer the relevant questions before it under
§ 1446: (1) Did the Court have original jurisdiction
based on the initial pleading and (2) Did Dr. Warren's
motions render the case removable?
review, the complaint was not removable upon its face. Before
this Court can exercise diversity jurisdiction, complete
diversity of citizenship must exist. “Diversity
jurisdiction requires complete diversity; every plaintiff
must be diverse from every defendant.” Triggs v.
John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.
1998). Both Dr. Warren and the Decedent were alleged to be
citizens of Alabama. Accordingly, the parties were not
diverse at the time of filing and diversity jurisdiction was
Federal Question jurisdiction was lacking from the face of
Plaintiff's complaint. Federal question jurisdiction
requires that the “action aris[e] under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. The analysis of federal question
jurisdiction begins with the principle that the plaintiff
“is master to decide what law he will rely upon.”
The Fair v. Kohler Die & Specialty Co., 228 U.S.
22, 25 (1913). Plaintiff can choose to rely solely on state
law even if federal law provides a cause of action as well.
Campbell v. Gen. Motors Corp., 19 F.Supp.2d 1260,
1271 (N.D. Ala. 1998). “The presence or absence of
federal-question jurisdiction is governed by the
‘well-pleaded complaint rule,' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint.” Caterpillar, 482 U.S. at 392.
“Thus, it is now settled law that a case may
not be removed to federal court on the basis of a
federal defense, including the defense of preemption, even if
the defense is anticipated in the plaintiff's complaint,
and even if both parties concede that the federal defense is
the only question truly at ...