United States District Court, W.D. Washington, Tacoma
ORDER REMANDING CASE TO GRAYS HARBOR COUNTY SUPERIOR COURT
RONALD B. LEIGHTON, District Judge.
THIS MATTER is before the Court on Plaintiff Sherman's Motion to Remand [Dkt. #68]. Defendants removed the case based on diversity jurisdiction, disregarding the Washington citizenship of three defendants by claiming they were fraudulently joined for the sole purpose of destroying diversity. Sherman seeks to remand to Grays Harbor County Superior Court. The issue is whether the Washington defendants were properly named. Because Defendants cannot establish that at least one of the defendants- Silverman-was fraudulently joined, his presence in the case destroys this Court's diversity jurisdiction and the Motion to Remand is GRANTED.
Plaintiff Diana Sherman is Washington resident suffering from tardive dyskinesia, allegedly caused by her toxic cumulative overexposure to the prescription drug metoclopramide, commonly known under its brand name, Reglan. Sherman's treating physician, Dr. Bruce A. Silverman, prescribed this medication to address Sherman's chronic gastroesophageal reflux (heartburn). She took generic metoclopramide from 2004 until 2010.
Sherman's amended complaint was filed in Grays Harbor County Superior Court on January 8, 2010 against various defendants. The named defendants include the original producers of Reglan, several manufacturers of generic metoclopramide, Silverman, his employer, and the pharmacy and pharmacists that supplied the drug to Sherman. Sherman's malpractice claims are that Silverman was "dangerously misinformed and under informed" regarding metoclopramide and that he did not do proper research before prescribing the drug for an extended period of time. Sherman alleges that Silverman's practice fell below the standard of care. She also claims that he failed to inform her of the risks of prolonged use of the drug, and thus failed to obtain her informed consent to the treatment.
Defendants removed the suit on the basis of diversity jurisdiction under 28 U.S.C. §§ 1332 and 1441(b). Sherman seeks Remand, arguing that this court does not have jurisdiction because the parties are not diverse. Sherman claims that Silverman was properly named as a defendant, and that his presence in the suit destroys diversity jurisdiction.
The Defendants' Responses argue that Sherman fraudulently joined the Washington residents-Silverman and the pharmacists-to destroy diversity, and that their citizenship could be disregarded for purposes of removal. This argument is largely based on an email that Sherman's counsel sent to Defendants' attorneys discussing two new cases that were yet to be filed, admitting that he was going to name non-diverse defendants to keep cases in state court for strategic purposes:
William and Hank: I'm forwarding a link... for two unfiled cases... I was planning on filing new cases in state courts with physician defendants in order to get the Conte v. Foster question presented to a number of State Supreme Courts... Diana Sherman's prescribing doctor is Bruce Silverman... Cathy King's prescribing physician is Dr. Monty Scott... he knows that I believe that your clients are principally responsible for misleading physicians....
(Dkt. #78, Exh. 3). Defendants argue that this email proves that Sherman does not believe that colorable claims exist against Silverman and that even if claims do exist, that she does not intend to pursue them, making his presence fraudulent.
A. Removal Standard
An action is removable to a federal court only if it could have been brought there originally. 28 U.S.C. § 1441(a). Federal Courts have jurisdiction over lawsuits when each defendant is a citizen of a different state than each plaintiff and there is a sufficient amount in dispute. 28 U.S.C § 1332(a)(1) ("[T]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between... citizens of different States").
There is a strong presumption against removal jurisdiction, and federal jurisdiction "must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citation omitted). The defendant always bears the burden of establishing the propriety of removal. Id. If at any time before final judgment, the court determines that it ...