Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bavone v. Eli Lilly and Co.

April 24, 2006


The opinion of the court was delivered by: Murphy, Chief District Judge


This action is before the Court on the motion to remand brought by Plaintiffs Carl Bavone, Debbie Bernsley, Robert Goatee, Terrance Hause, Constance Morrow, Jessica Perry, and Roger Yon (Doc. 8). The Court set this motion for hearing in accordance with its normal practice, but a review of the pleadings reveals that a hearing on this issue is not necessary. For the following reasons, the motion is GRANTED.


Plaintiffs originally filed this action in the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, asserting claims based upon strict products liability, negligence, consumer fraud, common-law fraud, and breach of warranty for injuries allegedly caused by Zyprexa, a prescription medication for the treatment of schizophrenia in adults manufactured by Defendant Eli Lilly and Company ("Eli Lilly"). Eli Lilly subsequently removed the action to this Court, asserting that Plaintiff Debbie Bernsley, who is, like Eli Lilly, a citizen of Indiana, has been fraudulently misjoined to defeat federal diversity jurisdiction. Plaintiffs have requested remand of the action to Illinois state court for lack of subject matter jurisdiction.


A. Eli Lilly's Request for a Stay

In opposing Plaintiffs' request for remand, Eli Lilly urges the Court to stay proceedings in this action pending transfer of the action by the Judicial Panel on Multidistrict Litigation ("JPML") to a multidistrict litigation ("MDL") proceeding for coordinated or consolidated pretrial proceedings. See 28 U.S.C. § 1407. As Eli Lilly acknowledges, the Court retains full jurisdiction over this action until such time as a transfer order by the JPML is filed in the office of the clerk of the district court of the transferee district, in this instance the United States District Court for the Eastern District of New York. See Illinois Mun. Ret. Fund v. Citigroup, Inc., 391 F.3d 844, 850 (7th Cir. 2004). The decision to grant a stay rests within the Court's discretion. See Walker v. Merck & Co., No. 05-CV-360-DRH, 2005 WL 1565839, at *2 (S.D. Ill. June 22, 2005).

In Meyers v. Bayer AG, 143 F. Supp. 2d 1044 (E.D. Wis. 2001), the court established a framework for deciding whether to address a motion to remand or to defer consideration of the motion pending transfer of an action by the JPML. Under that framework, the court's "first step should be to make a preliminary assessment of the jurisdictional issue." Id. at 1048. If the preliminary assessment suggests that removal was improper, then the court should consider the motion to remand. See 1048-49. The framework set out in Meyers is consistent with the familiar principle that a district court's "first duty in every suit" is "to determine the existence of subject-matter jurisdiction." Johnson v. Wattenbarger, 361 F.3d 991, 992 (7th Cir. 2004).

The Court's initial assessment of Plaintiffs' motion for remand and the response thereto filed by Eli Lilly suggests that removal was improper. Therefore, the Court concludes that it should consider the jurisdictional issues raised by the motion for remand even though Eli Lilly is attempting to have this case transferred by the JPML. See Illinois Mun. Ret. Fund, 391 F.3d at 852 ("Though some district courts stay proceedings during the interim following a conditional transfer order, . this is not required where the court concludes that it lacks subject matter jurisdiction."); Wisconsin v. Abbott Labs., No. 04-C-447-C, 2004 WL 2055717, at *1 (W.D. Wis. Sept. 9, 2004) (applying the Meyers framework and lifting a stay of proceedings for the purpose of considering a motion to remand, since it appeared the removal was improper, despite the JPML's conditional transfer order transferring the case); Board of Trs. of Teachers' Ret. Sys. of State of Ill. v. Worldcom, Inc., 244 F. Supp. 2d 900, 903 (N.D. Ill. 2002) ("When the merits of a remand motion are easy, a decision requires little judicial time and a stay would merely postpone the inevitable," and the "threat of inconsistent judgments . . . is de minim[i]s").

B. Plaintiffs' Motion to Remand

1. Legal Standard

Removal based on diversity requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332; Id. § 1441. The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." Id. Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976).

In evaluating diversity of citizenship, a court must disregard a defendant that has been fraudulently joined. See Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999). A defendant is fraudulently joined when "there is no possibility that a plaintiff can state a cause of action against [the] nondiverse defendant[ ] in state court, or where there has been outright fraud in plaintiff's pleading of jurisdictional facts." Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993). A defendant seeking removal based on alleged fraudulent joinder has the "heavy" burden of proving that, after the court resolves all issues of law and fact in the plaintiff's favor, there is ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.