United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
In this removed action, Plaintiff Melissa Mayfield is seeking compensation for injuries she allegedly incurred during a pelvic mesh implant surgery on January 22, 2014. Her husband, Robert Mayfield, is suing for loss of consortium. Together, Plaintiffs bring multiple claims for products liability against the manufacturers of the implants, C.R. Bard, Inc. ("Bard"), and Johnson & Johnson, Ethicon LLC and Ethicon, Inc. (collectively "Ethicon"). They also allege medical malpractice against the physician who performed the operation, Dr. Thomas Mechas, as well as the clinic he practiced with, London Women's Care, PLLC (collectively the "Healthcare Defendants").
This matter is before the Court upon Ethicon's Motion to Sever and Plaintiffs' Motion to Remand. (Docs. #3 and 8). At issue is whether the Court can exercise diversity jurisdiction even though Plaintiffs and Healthcare Defendants are citizens of the same state. Ethicon submits that jurisdiction is proper so long as Healthcare Defendants are severed from this action, either because (1) they are dispensable parties, or (2) they were fraudulently misjoined. Plaintiffs oppose severance under either theory and move the Court to remand the entire case for lack of complete diversity. Both Motions have been fully briefed and the Court heard oral argument from the parties on May 26, 2015. (Docs. #9, 21, 22, 24, 28). Therefore, the motions are ripe for the Court's review.
I. Factual and Procedural Background
Dr. Thomas Mechas practices obstetrics and gynecology at London Women's Care, PLLC, in London, Kentucky. (Doc. #1-3 at 63, ¶ 3). On January 22, 2014, he performed surgery on Melissa Mayfield ("Mayfield"), attempting to repair multiple vaginal prolapses and treat her stress urinary incontinence. ( Id. at 84, ¶ 87). During the operation, Dr. Mechas placed two pelvic mesh implants inside of Mayfield in order to correct the prolapses. (Doc. #8-1 at 3, ¶ 1). One of the implants, an Alyte Y-Mesh, was manufactured by Bard. ( Id. ) The other, a TVT-O, was made by Ethicon. ( Id. )
Mayfield claims to have sustained various injuries as a result of the surgery, including, but not limited to, physical impairment and disfigurement, pain and suffering, chronic infection and severe emotional distress. (Doc. #1-3 at 84-85, ¶¶ 90-91). Despite having a revision surgery to alleviate some of these injuries, Mayfield still experiences "excruciating pain." ( Id. at 84, ¶ 88).
Plaintiffs filed the instant lawsuit on January 5, 2015 in the Laurel County Circuit Court. ( Id. at 6). They assert the following seven causes of action against Bard and Ethicon: (1) negligence; (2) strict liability-design defect; (3) strict liability-failure to warn; (4) strict liability-defective manufacture; (5) common law fraud; (6) fraudulent concealment; and (7) negligent misrepresentation. ( Id. at 88-110, ¶¶ 107-193). Plaintiffs also bring a medical malpractice claim against Healthcare Defendants. ( Id. at 111-114, ¶¶ 194-208). They allege that Dr. Mechas failed to warn Mayfield of the publicly-known dangers of mesh implants; failed to discuss the procedures he would use to implant them; performed the surgery without adequate training; and ignored safer alternatives. ( Id. ) They bring the same claim against London Women's Care, PLLC based on the doctrine of respondeat superior. ( Id. ) Finally, Plaintiffs are suing all defendants for Robert Mayfield's loss of consortium due to his wife's injuries. ( Id. at 114, ¶¶ 209-211).
On February 10, 2015, with Bard's consent, Ethicon removed this case to federal court pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. (Doc. #1 at 14, ¶ 36). In its Notice of Removal, Ethicon concedes that Plaintiffs and Healthcare Defendants are citizens of the same state. ( Id. at 6, ¶ 15). But because Healthcare Defendants should be severed from this action, Ethicon explains, the Court should ignore their citizenship for purposes of determining whether complete diversity exists. ( Id. )
Three days before this case was removed, the United States Judicial Panel on Multidistrict Litigation ("JPML") issued an order consolidating numerous similar actions and transferring them to the United States District Court for the Southern District of West Virginia (the "Ethicon MDL"). (Doc. #4-1 at 2). Upon removal, Ethicon filed a Notice of Tag-Along Action with the JPML, causing this case to be conditionally transferred to the Ethicon MDL. (Doc. #12 at 2). Plaintiffs filed a Notice of Opposition on March 2, 2015, and subsequently filed a Motion to Vacate the Conditional Transfer Order. ( Id. ) That motion will be considered at the JPML's next bimonthly hearing session, which is scheduled for May 28, 2015. ( Id. at 3, n.1).
A. Standard of Review
A defendant may remove any civil action "of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Once a case is removed, a plaintiff may bring a motion to remand under 28 U.S.C. § 1447©. Because "removal statutes are to be narrowly construed, " Long v. Bando Mfg. Of America, Inc., 201 F.3d 754, 757 (6th Cir. 2000), "all doubts as to the propriety of removal are resolved in favor of remand." Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999); see also Her Majesty The Queen In Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989) ("The removal petition is to be strictly construed, with all doubts resolved against removal.").
B. Diversity of Citizenship
As the party removing this action to federal court, Ethicon bears the burden of establishing diversity jurisdiction by a preponderance of the evidence. Everett v. Verison Wireless, Inc., 460 F.3d 818, 829 (6th Cir. 2006). Thus, Ethicon must show (1) that "all parties on one side of the litigation are of a different citizenship from all parties on the other side of the litigation", and (2) that the jurisdictional minimum amount in controversy is met. Coyne v. Am. Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999) (quoting SHR Ltd. P'ship v. Braun, 888 F.2d 455, 456 (6th Cir. 1989)); 28 U.S.C. § 1332 ...