Opinion
CIVIL ACTION NO: 03-106 SECTION: "J" (3)
February 12, 2003
ORDER GRANTING MOTION TO REMAND
Before the Court is the Motion to Remand (Rec. Doc. 4) filed by plaintiff. Defendant Bristol-Myers Squibb ("BMS") opposes the motion. The motion was set for hearing with oral argument on February 19, 2003. However, having reviewed the record, the memoranda of counsel, and applicable law, the Court is satisfied that the motion may be disposed of on the briefs, without oral argument. Accordingly, for the reasons which follow, the Court finds that non-diverse defendant Dr. Jacquelyn A. Robinson was not fraudulently joined, and thus the Motion to Remand should be GRANTED. Oral argument on this motion is therefore CANCELLED.
BACKGROUND
Plaintiff filed suit in state court against BMS, her personal physician (Dr. Robinson), and DeBlanc Pharmacy, for injuries plaintiff sustained as a result of taking Serzone, a medication allegedly manufactured by BMS, prescribed for plaintiff by Dr. Robinson, and purchased by plaintiff at DeBlanc Pharmacy.
BMS then removed the matter to this Court asserting, inter alia, that Dr. Robinson was fraudulently joined, because "plaintiff has not instituted the requisite medical review panel proceeding before filing suit in district court." Notice of Removal, Rec. Doc. 1, ¶ 7. Notably, BMS does not argue that the claims against Dr. Robinson do not allege a reasonable basis for recovery against her; rather, the essence of BMS's position is that because any claims against Dr. Robinson are premature, she is fraudulently joined.
DISCUSSION
The burden of proving fraudulent joinder is a difficult one and lies with the removing party. Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir. 1995). The removing party must establish the alleged fraud by showing that there is no possibility that the plaintiff could establish a cause of action against the removing party in state court. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992). In evaluating claims of fraudulent joinder, a district court "must initially resolve all disputed questions of fact and all ambiguities in the controlling state law in favor of the non-removing party." Id. Next, the Court must "determine whether the party has any possibility of recovery against the party whose joinder is questioned." Id. If the Court concludes that such a possibility exists, there is no fraudulent joinder and the case is properly remanded. Id. Accordingly, in this case, BMS bears the burden of showing that there is no possibility that plaintiff can establish a cause of action against Dr. Robinson in state court.
Louisiana Revised Statute 40:1299.47(B)(1)(a)(i) provides: "No action against a health care provider . . . may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel. . . ." Accordingly, medical malpractice lawsuits which are filed in a court before presentation to a medical review panel are subject to a dilatory exception of prematurity, and a resulting dismissal without prejudice. Englande v. Smithkline, 206 F. Supp.2d 815, 817 (E.D. La. 2002), citing Brister v. Southwest Louisiana Hosp. Ass'n, 624 So.2d 970 (La.App. 3rd Cir. 1993) (medical malpractice suit was premature where suit was filed one day after request was made for panel review); Jarrell v. American Medical Intern. Inc., 552 So.2d 756 (La.App. 1st Cir. 1989), writ denied, 556 So.2d 1282 (plaintiff required to convene a medical review panel before filing suit); Johnson v. Scimed, Inc., 92 F. Supp.2d 587 (W.D. La. 2000) (Louisiana law requires the completion of the medical review process before a plaintiff may sue). In this case, plaintiff does not contest that her state court suit against Dr. Robinson was filed prior to any presentation to a medical review panel; it is therefore premature under Louisiana law.
Thus, the precise legal issue before the Court in this case is whether the fact that plaintiff's claims against Dr. Robinson in the state court petition are subject to a dilatory exception of prematurity means that there is no possibility that the plaintiff could establish a cause of action against Dr. Robinson in state court. See, Dodson, 951 F.2d at 42. As numerous courts considering this question have concluded, that is not the case. See, e.g., Englande v. Smithkline, 206 F. Supp.2d 815 (E.D. La. 2002) (Feldman, J.); Johnson v. Scimed, 92 F. Supp.2d 587 (W.D. La. 2000) (Payne, M.J.); Duffy v. Pendleton Memorial Methodists Hospital, 1998 WL 273114 (E.D. La., May 28, 1998) (Vance, J.); Doe v. Armour Pharmaceutical Co., 837 F. Supp. 178 (E.D. La. 1993) (Mentz, J.); Perry v. McNulty, 794 F. Supp. 606 (E.D. La. 1992) (Arceneaux, J.); Doe v. Cutter Biological, 774 F. Supp. 1001 (E.D. La. 1991) (Feldman, J.); Erdey v. American Honda Co., Inc., 96 F.R.D. 593 (M.D. La. 1983.) (Parker, J.). A procedural bar, especially one that may be waived, simply does not eliminate the possibility that plaintiff could state a viable cause of action against Dr. Robinson. To hold otherwise would "elevate form over substance," because it disregards the fact that the "key inquiry to a claim of fraudulent joinder is whether the facts as alleged support the plaintiff's substantive claims against the non-diverse defendants.Englande, 206 F. Supp.2d at 819 (emphasis added), citing B. Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir. 1981) (other citations omitted). Put another way, "[p]rematurity does not trump viability."Cutter Biological, 774 F. Supp. at 1004.
Accordingly, the Court finds that plaintiff has stated a viable claim against Dr. Robinson, a non-diverse defendant, and thus that her joinder was not fraudulent. Since the sole basis for removal of this action was diversity, and diversity must be complete, 28 U.S.C. § 1332;Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), the Court need not reach the question of whether DeBlanc Pharmacy was fraudulently joined. Instead, because in the absence of complete diversity no basis for federal subject matter jurisdiction exists, the Court finds that this matter should be remanded to state court. Therefore;
IT IS ORDERED that plaintiff's Motion to Remand (Rec. Doc. 4) should be and is hereby GRANTED, and this action is action is hereby REMANDED to the Civil District Court for the Parish of Orleans.