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Mahler v. Biomet, Inc.

United States District Court, N.D. Indiana, South Bend Division

July 31, 2017

JOANNE MAHLER, et al., Plaintiffs,
BIOMET, INC., et al., Defendants.


          Robert L. Miller, Jr. United States District Judge.

         Joanne 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.

         I. Background

         The 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.

         The 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 Orthopedics, LLC.

         The 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.

         The 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.

         II. Standard of Review

         “Federal 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).

         The Mahlers and Mr. Weible are Missouri citizens. The various Biomet entities are Indiana citizens.[1] 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.

         III. Discussion

         To 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.

         Missouri's “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 products ...

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