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McGee v. Fresenius Medical Care North America, Inc.

United States District Court, E.D. Missouri, Eastern Division

July 3, 2014

DEBORAH McGEE, individually and on behalf of the estate of ROBERT MCGEE, et al., Plaintiffs,
v.
FRESENIUS MEDICAL CARE NORTH AMERICA, INC., et al., Defendants.

MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH, Jr., District Judge.

This matter is before the Court on defendants' Motion to Sever (#13), defendants' Motion to Stay (#15), and plaintiffs' Motion to Remand (#18). The matters are fully briefed and ripe for disposition.

I. Factual Background

On March 28, 2014, 48 plaintiffs filed a complaint against defendants Fresenius USA, Inc., Fresenius Medical Care Holdings, Inc., Fresenius USA Manufacturing, Inc., Fresenius USA Marketing, Inc., and Fresenius USA Sales, Inc. (collectively "Fresenius"), for claims involving Granuflo®, an acid concentrate product used in dialysis treatments. Plaintiffs allege that they or their decedents suffered injuries and damages that were caused by or contributed to by Granuflo. Plaintiffs allege that their claims arise from the common facts that Granuflo is unreasoanbly dangerous and defective, that Fresenius was on notice and knew of the threat of bicarbonate overdose caused by Glanuflo, and that Fresenius failed to warn or otherwise amerliorate Granuflo's dangerous condition. Plaintiffs claim negligence, breaches of warranties, strict liability, negligent misrepresentation, fraud, wrongful death, and loss of consortium by surviving spouses.

Among the plaintiffs are three Missouri citizens. The other 45 defendants are citizens of 17 other states. Defendants point out that this lawsuit is one of more than 1, 600 cases related to Granuflo that are pending in federal court. The Judicial Panel on Multidistrict Litigation ("JPML") ordered that those case be coordinated as a Multidistrict Litigation , In re Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation, (MDL No. 2428) (the "MDL") on March 29, 2013. Defendants suggest that the plaintiffs brought this lawsuit in the St. Louis City court in order to avoid the MDL. Defendants removed this matter to federal court on May 23, 2014, citing diversity jurisdiction, and they have asked this Court to stay further proceedings pending transfer to the MDL (#15). Defendants have also filed a motion to sever. (#13.)

Plaintiffs have filed a motion to remand (#18), arguing that the Court lacks subject matter jurisdiction because incomplete diversity exists. Indeed, defendants' citizenship includes that of Massachusetts and New York. Four plaintiffs are citizens of New York, and two plaintiffs are citizens of Massachusetts.

II. Legal Standard

28 U.S.C. § 1332(a) provides that "district courts shall have original jurisdiction of all civil actions when a matter in controversy...is between (1) citizens of different states." The party seeking the federal forum, in this case Defendant, has the burden of pleading diversity of citizenship of the parties, Walker v. Norwest Corp., 108 F.3d 158, 161 (8th Cir. 1997), and the burden of establishing diversity jurisdiction by a preponderance of the evidence. Sheehan v. Gustafson, 967 F.2d 1214, 1215 (8th Cir. 1992); Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir. 1990); Russell v. New Amsterdam Cas. Co., 325 F.2d 996, 997 (8th Cir. 1964). The Court is mindful that removal statutes must be strictly construed because they impede upon states' rights to resolve controversies in their own courts. Nichols v. Harbor Venture, Inc., 284 F.3d 857, 861 (8th Cir.2002). The Court must resolve "all doubts about federal jurisdiction in favor of remand." Transit Cas. Co v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 625 (8th Cir. 1997). The court in Iowa Pub. Serv. Co. v. Med. Bow Coal, Co., held in regard to diversity where there are multiple plaintiffs and/or defendants:

[I]n a case where there are plural plaintiffs and plural defendants a federal court does not have diversity jurisdiction unless there is diversity between all plaintiffs and all defendants.... [I]f the "nondiverse" plaintiff is not a real party in interest, and is purely a formal or nominal party, his or its presence in the case may be ignored in determining jurisdiction.

556 F.2d 400, 403-404 (8th Cir. 1977) (internal citations omitted).

In addition, if a non-diverse party has been fraudulently joined, the case may be removed to federal court. Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983); BP Chemicals Ltd. v. Jiangsu Sopo Corp, 285 F.3d 677, 685 (8th Cir. 2002) (holding that a defendant's right of removal based on diversity of citizenship may not be defeated by fraudulently joining a non-diverse party). The Eighth Circuit further holds that "[j]oinder is fraudulent and removal is proper when there exists no reasonable basis in fact and law'" to support a claim against the defendant whose joinder would preclude removal. B.P. Chemicals Ltd., 285 F.3d at 685 (quoting Wiles v. Capitol Indem, Corp., 280 F.3d 868, 871 (8th Cir. 2002)). "Conversely, if there is a reasonable basis in fact and law supporting the claim, the joinder is not fraudulent." Filla v. Norfolk Southern Railroad Co., 336 F.3d 806, 810 (8th Cir. 2003).

III. Discussion

The JPML has advised this Court that it is "free to rule on any pending motions, " including "motions for remand to state court." (Dkt. Text Order Entered June 10, 2014, MDL No. 2428.) Defendants' motion to stay encourages this Court to allow the MDL judge to rule on the pending motions, but the practice of this Court has been to address these jurisdictional issues promptly in order to promote the efficient administration of justice. See Woodside v. Fresenius Med. Care N. Am., Inc., 4:13-CV-2463 CEJ, 2014 WL 169637, *1 (E.D. Mo. Jan. 15, 2014) ( A "putative transferor court need not automatically postpone rulings on pending motions, or in any way generally suspend proceedings, merely on grounds that an MDL transfer motion has been filed.") (quoting Spears v. Fresenius Med. Care N. Am., Inc., 4:13-CV-855 CEJ, 2013 WL 2643302, *1 (E.D. Mo. June 12, 2013)). The Motion to Stay will therefore be denied.

Removal of this case is premised on diversity jurisdiction pursuant to 28 U.S.C. § 1332. Such jurisdiction requires complete diversity of citizenship among the parties as well as an amount in controversy exceeding $75, 000. "Complete diversity of citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship." OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007). The parties here agree that at least one plaintiff is a citizen of the state as one of the ...


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