McDaniel v. Mylan Inc.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge.

         Before the Court is Plaintiff's motion to remand. (Doc. 4.) Defendants have timely filed their response. (Doc. 12.)^[1] 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.

         I. BACKGROUND

         Plaintiff 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 ¶ 6.)

         On 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 Court.

         On 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. 4.)

         II. STANDARD OF REVIEW

         This 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)).

         For 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).

         III. DISCUSSION

         To 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. § 1446(b)(3).

         The 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?

         Upon 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 lacking.

         Similarly, 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 ...