United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. United States District Judge.
and Dave Mahler sued in state court for damages associated
with Ms. Mahler's Biomet M2a-Magnum hip implant. They
sued various Biomet entities and sales representative Jake
Weible. Mr. Weible and the Mahlers are Missouri citizens. The
Biomet entities removed. The Mahlers ask for a remand.
Mahlers allege that Ms. Mahler's Biomet M2a-Magnum hip
implant caused her pain and a buildup of metal ions and
debris in her body, which resulted in, among other things,
metallosis, osteolysis, and a need for revision surgery. She
sued various Biomet entities based on strict liability and
negligence theories, alleging defects in the design,
manufacture, research, and testing of the hip implant, and
failure to warn about the implant's harmful effects.
Mahlers also sued Jake Weible, who they allege was a
representative of the Biomet companies. They say he was
present during Ms. Mahler's implant surgery and advised
Ms. Mahler's surgeon as to the implant's safety and
efficacy. They claim Mr. Weible didn't use ordinary care
in warning Ms. Mahler's surgeon of the risk of harm from
the hip implant. The Biomet entities add that Mr. Weible was
a sales representative for a Biomet distributor, Select
Mahlers sued in the Circuit Court of the County of St. Louis.
The Biomet defendants then removed the case to the United
States District Court for the Eastern District of Missouri.
28 U.S.C. § 1441. They did so without Mr. Weible's
consent on the basis that Mr. Weible wasn't
“properly joined and served.” §
1446(b)(2)(A). The case was then transferred to this court as
part of the MDL.
Mahlers move to remand. They argue that because Mr. Weible
and the Mahlers are all Missouri citizens, the federal courts
lacks diversity jurisdiction. § 1332(a)(1). The Biomet
entities argue that the Mahlers fraudulently joined Mr.
Weible, so his citizenship must be ignored.
Standard of Review
courts are courts of limited jurisdiction and may only
exercise jurisdiction where it is specifically authorized by
federal statute.” Evers v. Astrue, 536 F.3d
651, 657 (7th Cir. 2008). Defendants in a state court case
can remove the case to federal court if the federal court
would have original jurisdiction over it. 28 U.S.C. §
1441(a). One route for original jurisdiction is
“complete diversity between all named plaintiffs and
all named defendants, and no defendant is a citizen of the
forum state.” Lincoln Prop. Co. v. Roche, 546
U.S. 81, 84 (2005); see § 1332(a). “The
party asserting federal jurisdiction . . . has the burden of
establishing that” the jurisdictional requirements are
met. Hartridge v. Aetna Cas. & Sur. Co., 415
F.2d 809, 814 (8th Cir. 1969). A court must remand a case to
state court if it doesn't have subject matter
jurisdiction over the case. § 1447(c).
Mahlers and Mr. Weible are Missouri citizens. The various
Biomet entities are Indiana citizens. The Biomet entities removed
a case with a non-diverse party, in this case Mr. Weible.
They can avoid remand “only be demonstrating that the
non-diverse party was fraudulently joined.” Filla
v. Norfolk S. Ry. Co., 336 F.3d 806, 809 (8th Cir.
2003); Gottlieb v. Westin Hotel Co., 990 F.2d 323,
327 (7th Cir. 1993). “Fraudulent joinder” is
oddly named, because it doesn't involve fraud. The basic
question in fraudulent joinder review is “the
reasonableness of the basis underlying the state claim. Where
applicable state precedent precludes the existence of a cause
of action against a defendant, joinder is fraudulent.”
Filla v. Norfolk S., 336 F.3d at 810. The district
court's “task is limited to determining whether
there is arguably a reasonable basis for predicting that the
state law might impose liability based upon the facts
involved.” Id. at 811. Joinder of a defendant
isn't fraudulent if there's a “colorable”
cause of action against that defendant. Id. at 810.
remove, the defendants filed a “notice of removal . . .
containing a short and plain statement of the grounds for
removal.” § 1446(a). In their notice of removal,
the Biomet entities argued that the Mahlers have no possible
claim against Mr. Weible, so he was fraudulently joined.
“innocent seller” statute provides:
1. A defendant whose liability is based solely on his status
as a seller in the stream of commerce may be dismissed from a