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In re Yasmin and Yaz Marketing

November 24, 2010

IN RE YASMIN AND YAZ (DROSPIRENONE) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION
THIS DOCUMENT RELATES TO: EVANGELINE SEMARK LEMOINE, PLAINTIFF,
v.
TEVA PHARMACEUTICAL INDUSTRIES, LTD., TEVA PHARMACEUTICALS USA, INC., BAYER CORPORATION, BAYER HEALTHCARE PHARMACEUTICALS, INC., BAYER HEALTHCARE, LLC, BAYER SCHERING PHARMA AG, BAYER HEALTHCARE AG AND WALGREEN CO. DEFENDANTS



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

MDL No. 2100

ORDER

I. INTRODUCTION

This matter is presently before the Court on Plaintiff's motion to remand to state court (Doc. 30). Plaintiff, an Illinois citizen, asserts claims for personal injuries suffered as an alleged result of the prescription pharmaceutical product Ocella, a generic version of Yasmin (Doc. 1 pp. 30-32 ¶¶ 61-68; Doc. 5 ¶ 33). Plaintiff asserts claims against TEVA Pharmaceutical Industries, LTD., TEVA Pharmaceuticals USA, INC. (collectively, "TEVA Defendants"), Bayer Corporation, Bayer HealthCare Pharmaceuticals Inc., Bayer HealthCare, LLC, Bayer Schering Pharma AG, Bayer HealthCare AG (collectively, "Bayer Defendants"), and Walgreen Co ("Walgreen"). With the exception of Walgreen, none of the Defendants is a citizen of Illinois (Doc. 1 pp. 4-6 ¶¶ 15-23).

This case was originally filed in the Circuit Court of Cook County, Illinois. On January 19, 2010, Defendants Bayer Corporation, Bayer HealthCare Pharmaceuticals Inc. and Bayer HealthCare LLC (collectively, "Removing Defendants") removed this action to the Northern District of Illinois based on diversity of citizenship pursuant to 28 U.S.C. § 1332 (Doc. 1). The Removing Defendants and Walgreen allege that Walgreen, the sole non-diverse Defendant, was fraudulently joined and that its citizenship should be ignored (Doc. 1 pp. 5-6 ¶ 23; Doc. 33; Doc. 34). Plaintiff contends that Walgreen was not fraudulently joined and that the action should be remanded to state court (Doc. 30; Doc. 31; Doc. 37). Walgreen has also filed a motion to dismiss the claims directed against it (Doc. 34). On June 10, 2010, the action was transferred to this Multidistrict Litigation with Plaintiff's motion to remand and Walgreen's motion to dismiss pending. For the reasons stated herein the Court finds that Walgreen has been fraudulently joined and DENIES Plaintiff's motion to remand (Doc. 30).

II. DISCUSSION

A. Legal Standard

1. Removal

The removal statute, 28 U.S.C. § 1441, is construed narrowly, and doubts concerning removal are resolved in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). Defendants bear the burden to present evidence of federal jurisdiction once the existence of that jurisdiction is fairly cast into doubt. See In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir.1997). "A defendant meets this burden by supporting [its] allegations of jurisdiction with 'competent proof,' which in [the Seventh Circuit] requires the defendant to offer evidence which proves 'to a reasonable probability that jurisdiction exists.' " Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir.1997) (citations omitted). However, if the district court lacks subject matter jurisdiction, the action must be remanded to state court pursuant to 28 U.S.C. § 1447(c).

The statute regarding diversity jurisdiction, 28 U.S.C. § 1332, requires complete diversity between the parties plus an amount in controversy which exceeds $75,000, exclusive of interest and costs. Complete diversity means that "none of the parties on either side of the litigation may be a citizen of the state of which a party on the other side is a citizen." Howell v. Tribune Entertainment Co., 106 F.3d 215, 217 (7th Cir. 1997) (citations omitted).

2. Fraudulent Joinder

"A plaintiff typically may choose its own forum, but it may not join a nondiverse defendant simply to destroy diversity jurisdiction." Schur v. L.A. Weight Loss Centers, Inc. 577 F.3d 752, 763 (7th Cir. 2009). See also Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993) (collecting cases). "The 'fraudulent joinder' doctrine, therefore, permits a district court considering removal "to disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction." Schur, 577 F.3d at 763.

In the context of jurisdiction, "fraudulent" is a term of art. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.1992). "Although false allegations of jurisdictional fact may make joinder fraudulent ... in most cases fraudulent joinder involves a claim against an in-state defendant that simply has no chance of success whatever the plaintiff's motives." Id. (collecting cases). To prove fraudulent joinder, the out-of-state defendant must "show there exists no 'reasonable possibility that a state court would rule against the [in-state] defendant.'" Schwartz v. State Farm Mutual Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.1999) (citing Poulos, 959 F.2d at 73)). The defendant bears a heavy burden in this regard. Id. See also Schur, 577 ...


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