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In re Yasmin and Yaz Marketing

February 26, 2010


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

MDL No. 2100



This matter is before the Court on the motion for remand brought by Plaintiff, Cathy M. Walton (09-cv-10217 Doc. 11). Plaintiff asserts claims against Bayer Corporation, Bayer Healthcare LLC, Bayer HealthCare Pharmaceuticals, Inc. (collectively, "the Bayer Defendants")*fn1, and Niemann Foods, Inc.*fn2 Plaintiff's claims arise from personal injuries she allegedly suffered as a result of using Yasmin, an oral contraceptive prescription medication. Plaintiff asserts claims for strict products liability, negligence, failure to warn, breach of implied warranty, and fraudulent misrepresentation against all of the Defendants (09-cv-10217 Doc. 2-1 pp. 2-4). Plaintiff alleges that the Bayer Defendants are liable for her alleged injuries because they were "engaged in the business of developing, designing, licensing, manufacturing, distributing, selling, marketing, and/or introducing [Yasmin and Yaz] into interstate commerce." Plaintiff asserts that Niemann Foods is subject to liability for her alleged injuries because it was "in the business of selling, distributing, labeling, marketing, and/or placing...pharmaceutical drugs including Yasmin and Yaz into interstate commerce" (09-cv-10217 Doc. 2-1 p. 4).

This case was originally filed in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, and has been removed from state court to this Court by the Bayer Defendants on the basis of federal diversity jurisdiction. Plaintiff in turn has moved for remand of this case to state court (09-cv-10217 Doc. 11). Plaintiff challenges the removal on four bases: (1) defective removal for failure to attach copy of the summonses to the notice of removal; (2) lack of complete diversity between the parties; (3) insufficient evidence of damages in excess of $75,000; and (4) removal was improper because Niemann Foods is a citizen of Illinois, the State where the action was originally brought.

The Bayer Defendants have responded in opposition, contending that Niemann Foods was fraudulently joined in this suit in an attempt to destroy diversity jurisdiction, as both the Plaintiff and Nieman Foods are Illinois citizens (09-cv-10217 Doc. 24; MDL 2100 Doc. 499). The Bayer Defendants, on the other hand, are not Illinois citizens (See Doc. 2 pp. 5-6). Also pending is Niemann Foods' Motion to Dismiss (09-cv-10217 Doc. 9; MDL 2100 Doc. 349), which Plaintiff has opposed (09-cv-10217 Doc. 23).

The Court must first consider Plaintiff's Motion to Remand, as if it finds diversity jurisdiction did not exist at the time of removal, it will not have jurisdiction to consider Niemann Foods' Motion to Dismiss. However, because the resolution of Plaintiff's Motion to Remand depends on whether Niemann Foods was fraudulently joined, the Court's decision will, in essence, determine the issues pending in Niemann Foods' Motion to Dismiss. For reasons stated herein, the Court finds that Niemann Foods has been fraudulently joined and Plaintiff's Motion for Remand is therefore denied.


A. Preliminary Matters

1. Failure to Attach Requisite State Papers to the Notice of Removal

Plaintiff contends that this case should be remanded because a copy of the summons was not attached to the notice of removal (09-cv-10217 Doc. 11 p. 5), thus making the removal defective under 28 U.S.C. § 1446(a). Under 28 U.S.C. § 1446(a), a defendant desiring to remove a case to federal court must file a notice of removal together with "all process, pleadings, and orders served upon such defendant or defendants." 28 U.S.C. § 1446(a).

In this case, it is undisputed that the Bayer Defendants failed to follow the required procedure by failing to attach a copy of the summons to the notice of removal. Shortly after expiration of the thirty-day removal period, the Bayer Defendants supplemented their original, timely notice of removal to include the summons.*fn3 (09-cv-10217 Doc. 12; MDL 2100 Doc. 346). Plaintiff then filed a motion to strike the supplement (09-cv-10217 Doc. 15), which the Court denied. (09-cv-10217 Doc. 21; MDL 2100 Doc 376). Plaintiff contends that the defect was procedural and therefore, cannot be cured after expiration of the thirty-day period within which Defendants were required to file a proper notice of removal. (09-cv-10217 Doc. 11 p. 5).

There are two different viewpoints on this issue. "The predominant view is that the removing party's failure to file the required state court papers is 'curable in the federal courts if there is a motion to remand.' " See Yellow Transp., Inc. v. Apex Digital, Inc. 406 F.Supp.2d 1213, 1214 -1216 (D. Kan.,2005) quoting 14C Charles Alan Wright et al., Federal Practice & Procedure § 3733, at 350-51 (3d ed.1998). See e.g. Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285 (11th Cir. 1985) (failure to file state court papers required by removal statute can be remedied); Covington v. Indemnity Insurance Co. of North America, 251 F.2d 930, 933 (5th Cir.1958) (failure to attach copies of state court papers to removal petition was a "mere modal or procedural defect" which could later be cured and did not require remand); Riggs v. Fling Irr., Inc., 535 F. Supp. 2d 572 (W.D. N.C. 2008) (failure to attach summonses and other state court papers was curable); Boyce v. St. Paul Fire & Marine Ins. Co., Case No. 92-6525, 1993 WL 21210, at *3 (E.D. Pa. Jan.28, 1993) (noting procedural defect was remedied when the court received a copy of the state court records); Dri Mark Prods., Inc. v. Meyercord Co., 194 F.Supp. 536, 538 (S.D.N.Y.1961) (noting defect cured where defendant filed the required exhibits along with its opposition to the motion to remand).

This viewpoint has also been adopted by the Seventh Circuit. See Riehl v. National Mutual Insurance Co., 374 F.2d 739 (7th Cir.1967). In Riehl, the Seventh Circuit rejected the argument that it did not acquire jurisdiction over the case because the state court complaint was not filed in the federal district court. Id. at 741. The court explained that the omission did not frustrate the basic purpose of Rule 1446(a) and was "a minor irregularity of no consequence." Id.In the instant case, failure to attach a copy of the summons is a minor defect which did not prejudice the plaintiff. Accordingly, the Court concludes that the defect was curable and does not warrant removal.

2. The Forum Defendant Rule

Plaintiff invokes the "forum defendant rule" in support of her motion for remand. (09-cv-10217, Doc. 11 pp. 3 n.2, 4-5). Pursuant to the forum defendant rule, a diversity case may not be removed to federal court if any properly joined defendant is a citizen of the state in which the case was filed. See 28 U.S.C. § 1441(b) (providing that a diversity case "shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."); LaMotte v. Roundy's, Inc., 27 F.3d 314, 315 (7th Cir. 1994). Where a case is removed in violation of the forum defendant rule, the removal is procedurally defective. See Hurley v. Motor Coach Indus., Inc., 222 F.3d 377, 378-80 (7th Cir.2000); Yount v. Shashek, 472 F.Supp.2d 1055, 1058 (S.D.Ill.2006).

Plaintiff contends that because Niemann Foods is an Illinois corporation, the case was not properly removed. (09-cv-10217, Doc. 11 p. 3 n.2, 4-5). There is, however, an exception to the forum defendant rule. The forum defendant rule is not applicable to defendants that have been fraudulently joined to defeat diversity. See Yount v. Shashek, 472 F. Supp. 2d 1055, 1059 (S.D. Ill. 2006) citing Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 931 (S.D. Ill. 2006); accord Stephens v. Burns & Wilcox, Ltd., No. 09-860-GPM, 2009 WL 3756444, at *3 (S.D. Ill. Nov. 7, 2009) ("Because the forum defendant rule applies only to defendants that have been properly joined and served at the time of removal within the meaning of Section 1441(b), the rule does not apply where a forum defendant has been fraudulently joined to defeat diversity jurisdiction."). For the reasons set forth below, the Court finds that Niemann Foods has been fraudulently joined. Accordingly, the forum defendant rule is inapplicable in the instant case.

B. Legal ...

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