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Cathy M. Walton v. Bayercorporation

May 23, 2011

CATHY M. WALTON, PLAINTIFF-APPELLANT,
v.
BAYERCORPORATION, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Illinois. No. 3:09-cv-10217-DRH-PMF-David R. Herndon, Chief Judge.

The opinion of the court was delivered by: Posner, Circuit Judge.

ARGUED MARCH 31, 2011

Before CUDAHY, POSNER, and MANION, Circuit Judges.

The plaintiff, a citizen of Illinois, brought suit in an Illinois state court against a number of Bayer affiliates, all citizens of states other than Illinois, plus Niemann Foods, Inc., an Illinois citizen. The suit charges the defendants with violating Illinois tort law by failing to warn of dangerous side effects of Yazmin, a prescription oral-contraceptive drug manufactured by a German affiliate of the Bayer defendants (the manu- facturer is not a defendant) and bought by the plaintiff at a pharmacy operated by Niemann; she claims to have been seriously injured by the side effects. Despite the absence of complete diversity of citizenship because Niemann was joined as a defendant, the Bayer defendants removed the case to federal district court, arguing that the plaintiff had improperly joined Niemann to eliminate complete diversity of citizenship-a precondition to removing this case to federal court because there is no federal-law claim. The plaintiff asked the district judge to remand the case to state court. He refused, instead dismissing Niemann as a defendant, with preju-dice, thus restoring complete diversity. The plaintiff seeks reversal of the judge's order.

The defendants challenge our jurisdiction. They point out that the appeal is not from the order dismissing Niemann and denying the plaintiff's motion to remand the case to state court. That order did not end the litigation in the district court, and so was an interlocutory order-and not an appealable interlocutory order either. The plaintiff hadn't asked the district court to make the dismissal of Niemann a partial final judgment appealable under Fed. R. Civ. P. 54(b) or invoked any other exception to the final-decision rule (28 U.S.C. § 1291). The appeal is not from the order that the plaintiff wants us to appraise but from the district court's subsequent dismissal of the entire suit, with prejudice, as punishment for her failure to comply with the district judge's subsequent order to respond to a discovery demand by the defendants. Fed. R. Civ. P. 37(b)(2)(A)(v); Soci©t© Internationale pour Participa- tions Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 206-08 (1958); Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003). She ignored that order because she'd abandoned the litigation when the judge refused to remand the case to state court.

The dismissal of the entire suit as a discovery sanction was of course a final and therefore appealable judgment. But the defendants, citing Sere v. Board of Trustees, 852 F.2d 285, 288 (7th Cir. 1988), argue that a plaintiff should not be permitted to convert an interlocutory order to a final judgment by walking away from the litigation. Sere, however, was a peculiar case that bears only superficial resemblance to this one. The plaintiff had advanced two claims. The district court dismissed one under Rule 12(b)(6) and the case continued on the other claim until the plaintiff flouted a discovery order, whereupon the district court entered a final judgment dismissing the entire case with prejudice. The plaintiff argued on appeal that this punitive dismissal should have been limited to the second claim, thus allowing him to appeal from the dismissal of the first. We rejected the argument, 852 F.2d at 288-89, noting that the violation of the discovery order had deprived the defendant of discovery relating to the first claim as well as to the second.

There is nothing like that here. Nor is this a case in which a litigant tries to get an interlocutory appeal on one claim by seeking dismissal of another one, without prejudice, that he plans to reinstate-an impermissible tactic for circumventing the final-decision rule. E.g., Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984). Because our plaintiff wagered her entire claim on being proved right about jurisdiction, considerations of judicial economy justified immediate appellate review. For had the plaintiff complied with the discovery order and continued to prosecute her case in the district court, and lost, and then had successfully appealed on the ground that the district court lacked jurisdiction, the case would have had to be remanded to the state court-and since the basis of the remand would have been an absence of federal jurisdiction over the suit, the parties would have had to relitigate the case from scratch. Board of Trustees, Sheet Metal Workers' National Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1034-35 (7th Cir. 2000).

So we have jurisdiction over the appeal, but is there federal jurisdiction over the case? The plaintiff makes three arguments that there isn't. The first is that she has not alleged that her damages exceed $75,000, only that they exceed $50,000, and so the case does not satisfy a prerequisite of federal diversity jurisdiction. But the litany of injuries she claims to have sustained, which include but are not limited to "future thromboembolic events, which are permanent and lasting in nature, physical pain and mental anguish, diminished enjoyment of life, medical, health, incidental and related expenses, the need for lifelong medical treatment, monitoring and/or medications, and the fear of developing any of the above named health consequences," makes clear that she is seeking damages in excess of $75,000. A plaintiff can defeat removal of a diversity case by irrevocably committing (before the case is removed) to accepting no more than $75,000 in damages, Back Doctors Ltd. v. Metropolitan Property & Casualty Ins. Co., 2011 WL 1206184, at *3 (7th Cir. Apr. 1, 2011), no matter how great her actual damages. But needless to say the plaintiff has made no such commitment, as that would make her suit not worth the expense of litigating it.

Her second argument is that the defendants, in violation of 28 U.S.C. § 1446(a), failed to include in their removal papers, within the 30-day deadline for filing a petition to remove, the summonses that the plaintiff had served on them in the state court. A "defect in the removal procedure" normally requires remanding a case that has been removed under section 1446(a). See 28 U.S.C. § 1447(c); In re Continental Casualty Co., 29 F.3d 292, 293-94 (7th Cir. 1994). But the defendants added the summonses to their removal papers five days after the deadline, and there is no suggestion that the plaintiff, the district judge, the state court, or anyone or anything else was harmed by the delay. The 30-day deadline is not jurisdictional, Shaw v. Dow Brands, Inc., 994 F.2d 364, 368-69 (7th Cir. 1993); Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 273 (7th Cir. 1982); Music v. Arrowood Indemnity Co., 632 F.3d 284, 287-88 (6th Cir. 2011)-and even if it were, that wouldn't make the plaintiff's stumble fatal. The deadlines for filing notices of appeal from a district court to a court of appeals are jurisdictional; and yet defects in the notice that are inconsequential in the sense of incapable of misleading or otherwise harming anyone do not deprive the appellate court of jurisdiction. Foman v. Davis, 371 U.S. 178, 181-82 (1962); Wells v. Ryker, 591 F.3d 562, 565 (7th Cir. 2010); Peter F. Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57, 62-63 (2d Cir. 2010); see also 28 U.S.C. § 1653 ("defective allegations of juris-diction may be amended, upon terms, in the trial or appellate courts"). This is true even if the notice of appeal is "error-ridden." Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008).

No more does a totally inconsequential defect in removal papers deprive the district court of jurisdiction over a case removed to it. Riehl v. National Mutual Ins. Co., 374 F.2d 739, 742 (7th Cir. 1967); Cook v. Randolph County, 573 F.3d 1143, 1149-50 (11th Cir. 2009); see also 14C Charles

A. Wright et al., Federal Practice and Procedure § 3733, pp. 635-41 (4th ed. 2009). Remand would be a disproportionate sanction for a trivial oversight, and when judges measure out sanctions they strive for proportionality. Roughneck Concrete Drilling & Sawing Co. v. Plumbers' Pension Fund, Local 130, 2011 WL 1304900, at *6 (7th Cir. Apr. 7, 2011); Montano v. City of Chicago, 535 F.3d 558, 563 (7th Cir. 2008); Smith v. Gold Dust Casino, 526 F.3d 402, 405 (8th Cir. 2008).

The plaintiff's third, and principal, ground for remanding this case to state court is absence of complete diversity of citizenship. She makes two alternative arguments. The first is that the judge erred in dismissing Niemann as a defendant (if Niemann is retained, diversity is not complete); the second argument is that if he didn't err in this respect the case falls into an exception to an exception to the requirement of complete diversity: the "common defense" exception to the "fraudulent joinder" exception to that requirement.

Suppose removing defendants argue that the nondiverse defendant was joined simply to defeat removal, as might be inferred from a demonstration that the claim against that defendant had no possible merit. This is called "fraudulent joinder" and bars remand to state court, which is why we describe it as an exception to the requirement of complete diversity. Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 763 n. 9 (7th Cir. 2009); Schwartz v. State Farm Mutual Automobile Ins. Co., 174 F.3d 875, 878-79 (7th Cir. 1999); Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). Like many legal doctrines, "fraudulent joinder" is misnamed, since, as the cases we've just cited point out, proof of fraud, though sufficient, is not necessary for retention of federal jurisdiction-all that's required is proof that the claim against the nondiverse defendant is utterly groundless, and a groundless claim does not invoke federal jurisdiction, Hagans v. Lavine, 415 U.S. 528, 536-37 (1974); McCurdy v. Sheriff of Madison County, 128 F.3d 1144, 1145 (7th Cir. 1997), thus requiring the district judge to dismiss that defendant before the judge rules on the plaintiff's motion to remand.

Taking the first of the plaintiff's two arguments for why complete diversity is absent, we consider whether the judge was right to think that the claim against Niemann had so little merit that Niemann's joinder as a defendant was fraudulent in the sense just explained. The answer turns on the applicability to Niemann of the "learned intermediary" doctrine, a common law doctrine, in force as of 2002 in all but two states, Ehlis v. Shire Richwood, Inc., 367 F.3d 1013, 1016-17 (8th Cir. 2004); In re Norplant Contraceptive Products Liability Litigation, 215 F. Supp. 2d 795, 806-09 (E.D. Tex. 2002)-and Illinois is not one of the two. See Kirk v. Michael Reese Hospital & Medical Center, 513 N.E.2d 387, 392 (Ill. 1987); Happel v. Wal-Mart Stores, Inc., 766 N.E.2d 1118, 1127 (Ill. 2002). As usually formulated (the significance of the qualification "usually" will become clear shortly), the doctrine excuses the manufacturer of a prescription drug from having to warn consumers of the drug's adverse side effects; it need warn only physicians, so that armed with the warning they can make a medical decision to prescribe or not to prescribe the drug for a particular patient. E.g., Ackermann v. Wyeth Pharmaceuticals, 526 F.3d 203, 207 (5th Cir. 2008); In re Prempro Products Liability Litigation, 514 F.3d ...


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