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Aaron v. SmithKline Beecham Corp.

April 28, 2010


The opinion of the court was delivered by: J. Phil Gilbert District Judge


This matter comes before the Court on Plaintiffs' Motion to Remand (Doc. 5). Specifically, Plaintiffs seek to remand this case to the Twentieth Judicial Circuit, St. Clair County, Illinois, for lack of subject matter jurisdiction. Defendant SmithKline Beecham Corporation ("SKB") filed a Response (Doc. 6) to Plaintiffs' motion, to which Plaintiffs filed a Reply (Doc. 7). In addition, SKB filed a Motion (Doc. 8) for a hearing that would permit oral argument on the issues currently before the Court. Lastly, Plaintiffs' filed a Motion (Doc. 11) to supplement their motion, to which SKB filed a Response (Doc. 12).

For the following reasons, the Court, inter alia, GRANTS Plaintiffs' Motion to Remand (Doc. 5).


In this case, some ninety-nine Plaintiffs seek damages for personal injuries allegedly caused by Avandia, a prescription medication manufactured and distributed by SKB. The Complaint (Doc. 2-1), which was originally filed on November 12, 2009, in St. Clair County, Illinois, asserts claims for strict products liability, intentional infliction of emotional distress, negligent infliction of emotional distress, common law fraud, negligence, negligent misrepresentation, fraudulent misrepresentation, breach of express warranty, breach of implied warranty, violation of the Illinois Survival Act and the Illinois Family Expenses Act, 755 ILCS 5/27-6 and 750 ILCS 65/15 respectively, and wrongful death. On December 28, GlaxoSmithKline, LLC ("GSK"), which claims to be the successor-in-interest to SKB,*fn1 removed the case to this Court on grounds of alleged diversity jurisdiction. See 28 U.S.C. § 1332 (2006).

Before delving into analysis of the instant motion, the Court notes that both Chief District Judge David R. Herndon and District Judge G. Patrick Murphy recently remanded cases that are very similar to that currently before the Court. See Alexander v. SmithKline Beecham Corp., No. 09-cv-1072-DRH, 2010 WL 750031, at *5 (S.D. Ill. Mar. 3, 2010); Colon v. SmithKline Beecham Corp., No. 09-v-1073-GPM, 2010 WL 46523, at *5 (S.D. Ill. Jan. 5, 2010). This is especially true with respect to Alexander, which contained nearly identical briefing on a motion to remand and other related motions.*fn2 While Chief Judge Herndon's order of remand in Alexander is not binding on this Court, the Court finds its reasoning to be both sound and persuasive. As such, the Court GRANTS Plaintiffs' Motion (Doc. 11) to supplement, and said order will largely be adopted throughout the Court's analysis herein.


I. Removal and Remand Generally

As an initial matter the Court notes the standard under which it must evaluate the instant motion for remand. Pursuant to 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a) (2006). See also Rubel v. Pfizer Inc., 361 F.3d 1016, 1017 (7th Cir. 2004); Jones v. Gen. Tire & Rubber Co., 541 F.2d 660, 664 n.5 (7th Cir. 1976); Potter v. Janus Inv. Fund, 483 F. Supp. 2d 692, 694-95 (S.D. Ill. 2007). The party seeking removal, as the proponent of federal subject matter jurisdiction, has the burden of proof as to the existence of such jurisdiction. See Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540 (7th Cir. 2006); In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997). "'Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.' Put another way, there is a strong presumption in favor of remand." Fuller v. BNSF Ry. Co., 472 F. Supp. 2d 1088, 1091 (S.D. Ill. 2007) (quoting Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)). Finally, "[a]ll doubts about the propriety of removal are to be resolved in favor of remand." Sabo v. Dennis Techs., LLC, No. 07-cv-283-DRH, 2007 WL 1958591, at *2 (S.D. Ill. July 2, 2007).

Here, as noted, the source of the Court's jurisdiction alleged by GSK is diversity jurisdiction. In general, of course, the exercise of federal subject matter jurisdiction in diversity requires that the parties to a case be of completely diverse state citizenship, that is, no plaintiff may be a citizen of the same state as any defendant, and that an amount in excess of $75,000, exclusive of interest and costs, be in controversy. See 28 U.S.C. § 1332(a)(1) (2006); LM Ins. Corp. v. Spaulding Enters. Inc., 533 F.3d 542, 547 (7th Cir. 2008); Vogel v. Merck & Co., 476 F. Supp. 2d 996, 998 (S.D. Ill. 2007). For purposes of federal diversity jurisdiction, a natural person is a citizen of the state where he or she is domiciled, which is to say, the state where the person is physically present with an intent to remain there indefinitely. See Dakuras v. Edwards, 312 F.3d 256, 258 (7th Cir. 2002); Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir. 1996); Cassens v. Cassens, 430 F. Supp. 2d 830, 833-34 (S.D. Ill. 2006). A person who sues in a representative capacity on behalf of a decedent shares the citizenship, which is to say, the domicile, of the decedent. 28 U.S.C. § 1332(c)(2) (2006).*fn3 For diversity purposes, a corporation is a citizen of both the state where it is incorporated and the state where it maintains its principal place of business, with the corporation's principal place of business being determined by the state where the corporation has its headquarters or nerve center. See Id. § 1332(c)(1); Hertz Corp. v. Friend, 130 S.Ct. 1181, 1192-93 (2010); Nuclear Eng'g Co. v. Scott, 660 F.2d 241, 250 (7th Cir. 1981); Lyerla v. Amco Ins. Co., 461 F. Supp. 2d 834, 836 (S.D. Ill. 2006). Finally, a limited liability company ("LLC") is deemed to share the citizenship of each of the LLC's members for purposes of federal diversity jurisdiction. See Camico Mut. Ins. Co. v. Citizens Bank, 474 F.3d 989, 992 (7th Cir. 2007); Wise v. Wachovia Sec., LLC, 450 F.3d 265, 267 (7th Cir. 2006); LaRoe v. Cassens & Sons, Inc., 472 F. Supp. 2d 1039, 1040 (S.D. Ill. 2006).

In this instance, there appears to be no dispute that Plaintiffs' claims are each worth in excess of $75,000, exclusive of interest and costs, given the severe and permanent physical injuries Plaintiffs allege that they have suffered as a result of using Avandia, together with allegations of aggravated misconduct by SKB, including fraud and deliberate infliction of emotional distress, potentially warranting an award of punitive damages. See Andrews v. E.I. Du Pont De Nemours & Co., 447 F.3d 510, 514-15 (7th Cir. 2006) (addressing sua sponte on appeal the issue of subject matter jurisdiction in a case removed in diversity, and holding that jurisdiction was proper where the plaintiff's complaint sought damages "in excess of $50,000" and alleged "severe and permanent" injuries, and where discussion between the parties' counsel led the removing defendant to believe the plaintiff's medical and rehabilitation expenses alone would exceed $75,000, and the plaintiff did not challenge the removing defendant's estimate of his potential damage); Rising-Moore v. Red Roof Inns, Inc., 435 F.3d 813, 815 (7th Cir. 2006) (in a removed case arising from a slip-and-fall incident at a motel, holding that the minimum amount in controversy for purposes of federal diversity jurisdiction was satisfied where the plaintiff's medical expenses and lost earnings amounted to $45,000, so that "[a] modest allowance for pain, suffering, and future losses (either income foregone or medical expenses incurred) brings the total over the threshold."); Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 428-29 (7th Cir. 1997) (holding the amount in controversy for diversity purposes was satisfied where the plaintiff's medical expenses amounted to $4,400 and the plaintiff sought damages for "future medical treatment and disability care, future pain and suffering, future mental anguish, loss of past wages and impairment of future earning capacity"); Anthony v. Sec. Pac. Fin. Servs., Inc., 75 F.3d 311, 317-18 (7th Cir. 1996) (punitive damages in a ratio of two or three times a plaintiff's actual damages properly can be reckoned into the amount in controversy)

However, the Court's analysis is incomplete because the record discloses the following defect: Plaintiffs Nicholas Berkich, Richard Earl Churchel, and Theodore Leshen are citizens of Pennsylvania, as is SKB, which was incorporated under Pennsylvania law with its principal place of business in Pennsylvania and thus, for reasons discussed supra, is a citizen of Pennsylvania for diversity purposes.

II. Fraudulent Joinder Generally

GSK, which, as noted, is the entity that actually removed this case, contends that diversity of citizenship is complete because SKB no longer exists. GSK asserts that it is the successor entity to SKB, which has been dissolved and reconstituted as an LLC. The sole member of GSK is GlaxoSmithKline Holdings (Americas), Inc., a corporation incorporated under Delaware law with its principal place of business in Delaware; therefore, GSK would be a citizen of Delaware for diversity purposes. Thomas v. Guardsmark, LLC, 487 F.3d 531, 534 (7th Cir. 2007) (the citizenship of a limited liability company for diversity purposes is the ...

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