United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion to
Remand (ECF No. 10). The motion is fully briefed and ready
for disposition. For the reasons set forth below, the Court
will grant Plaintiffs' motion.
filed a Petition for Damages in the Circuity Court of the
City of St. Louis, Missouri on May 12, 2016. Defendant Wright
Medical Technology, Inc. ("WMT") removed the case
to federal court on June 16, 2016. On July 13, 2016, the
Plaintiffs filed a Motion to Remand and a Motion for Leave to
File Amended Petition, with a copy of the Amended Petition
attached. (ECF Nos. 10, 11) The Court granted leave to file
the Amended Petition on that same date in a docket text
order. (ECF No. 13) On July 29, 2016, Defendant WMT filed a
motion to reconsider, asserting that the joinder of a new
Defendant, Jason Kem, to the cause of action is improper
because it defeats subject matter jurisdiction. The Court
denied Defendant's Motion to Reconsider on the basis that
the amendment of the complaint was proper under Fed.R.Civ.P.
15. However, the Court granted Defendant the opportunity to
file a sur-reply to the Motion to Remand.
bring their First Amended Complaint against Defendants WMT,
John Doe, Jerry Amos ("Amos"), and Jason Kem
("Kem"). Plaintiffs state that both Defendants Amos
and Kem are residents of the State of Missouri. The causes of
action involve medical products referred to collectively as
"the Profenur® devices." Defendant WMT
manufactures, markets, sells, and designs the Profemur®
devices. Plaintiffs allege that Gary Chura sustained injury
when the allegedly defective Profemur® devices were
implanted into his right hip. Plaintiffs claim that Defendant
Amos was an authorized distributor of Defendant WMT at the
time of the implant and that Amos and/or Defendant Kem
delivered the products to the surgeon. In the First Amended
Complaint, Plaintiff Gary Chura alleges common law negligence
against Defendant WMT (Count I); strict liability against
Defendant WMT (Count II); strict products liability (design
defect) against Defendant WMT (Count III); strict products
liability (inadequate warning) against Defendant WMT (Count
IV); breach of express warranty against Defendant WMT (Count
V); breach of warranty of merchantability against Defendant
WMT (Count VI); negligent misrepresentation against all
Defendants (Count VII); violation of the Missouri
Merchandising Practices Act against all Defendants (Count
VIII); and negligence against Defendants Amos, Doe, and Kem
(Count IX). Plaintiff Nicole Chura also brings an action for
loss of consortium against all Defendants (Count X). All of
these claims are brought under Missouri law.
Motion to Remand and Reply Memorandum, Plaintiffs contend
that the case should be remanded to state court because
Defendant Amos was properly joined as a Defendant in this
case, and Defendant WMT has not objected to Defendant Kem on
the basis of fraudulent joinder. Defendant WMT argues that
Amos was fraudulently joined in this action. Additionally.
WMT concedes that Defendant Kern's joinder defeats
diversity jurisdiction and renews the arguments raised in the
Motion for Reconsideration that the Court should not have
allowed Plaintiffs to add Kem as a Defendant under the rules
Court previously found that leave to amend the complaint was
proper under Rule 15 of the Federal Rules of Civil Procedure.
As stated in its Memorandum and Order of September 7, 2016,
"Plaintiffs are the masters of their complaint, and at
the early stages of this case, amendment of the complaint was
warranted, and leave was not inadvertently granted.
Hoechstenback v. Accu-Pay APS, LLC, No. 4:15 CV 457
RWS, 2015 WL 3609088, at *2 (E.D. Mo. Apr. 15, 2015)."
(Mem. & Order of 9/7/16, ECF No. 31) While WMT continues
to assert that the Court erroneously granted leave under Rule
19, pertaining to joinder, such is simply not the case.
jurisdiction exists where a civil action is between citizens
of different states, and the amount in controversy exceeds
$75, 000. 28 U.S.C. § 1332(a). In removal cases, the
removing party has the burden of establishing that diversity
jurisdiction exists by a preponderance of the evidence.
In re Prempro Prod. Liab. Litig., 591 F.3d 613, 620
(8th Cir. 2010) (citation omitted). "All doubts about
federal jurisdiction should be resolved in favor of remand to
state court." Id. (citation omitted). "A
case must be remanded if, at any time, it appears that the
district court lacks subject matter jurisdiction."
Hrastich v. Advance Auto Parts, Inc., No.
4:14-CV-22-JAR, 2014 WL 3341121, at *1 (E.D. Mo. July 8,
2014) (citing 28 U.S.C. § 1447(c)).
the parties agree that diversity jurisdiction does not exist
because Kem is a citizen of Missouri. Thus, the Court finds
that it lacks subject matter jurisdiction, and the case will
be remanded to the state court. Id. at *2 (allowing
plaintiff to amend complaint to name non-diverse defendant
and remanding the case to state court); see also Gilmore
v. Lowe's Home Ctrs., Inc., No. 1.-12-CV-47 SNLJ,
2012 WL 535159, at *3 (E.D. Mo. Oct. 30, 2012) (remanding
action to state court where amended complaint added a
non-diverse defendant, and defendant argued fraudulent
IT IS HEREBY ORDERED that Plaintiffs Motion for Remand (ECF
No. 10) is GRANTED.
FURTHER ORDERED that the Clerk of the Court shall REMAND this
case to the Circuit Court of the City of St. Louis, Missouri,
from which it was removed. An Order of Remand accompanies