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Bahalim v. Ferring Pharmaceuticals, Inc.

United States District Court, N.D. Illinois, Eastern Division

January 12, 2017



          AMY J. ST. EVE, District Court Judge

         On August 25, 2016, Defendant Ferring Pharmaceuticals, Inc. (“Ferring”) removed this lawsuit from the Circuit Court of Cook County based on the Court's diversity jurisdiction. See 28 U.S.C. §§ 1332(a), 1446. Before the Court is Plaintiffs Rahima Kashif Bahalim's and Katie McDonald's motion to remand brought pursuant to 28 U.S.C. § 1447(c). Although there is complete diversity of citizenship between the parties, Plaintiffs argue that Defendant Ferring's removal was improper because Defendant Stericycle, Inc. (“Stericycle”) is a forum defendant under 28 U.S.C. § 1441(b)(2). Also before the Court is Defendants Stericycle's and Ferring's motions to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) and Ferring's Rule 12(b)(2) motion to dismiss.

         For the reasons stated below, the Court denies Plaintiffs' § 1447(c) motion to remand because Plaintiffs fraudulently joined Defendant Stericycle under the circumstances of this case. The Court further grants Stericycle's Rule 12(b)(6) motion to dismiss and grants Defendant Ferring's Rule 12(b)(2) motion to dismiss because the Court does not have personal jurisdiction over Defendant Ferring.


         Plaintiffs originally filed this lawsuit on July 14, 2016, in the Circuit Court of Cook County, Illinois, County Department, Law Division, Case No. 2016-L-006938. Plaintiffs' lawsuit arises out of the recall of the prescription drug Bravelle©, which is the brand name version of the generic drug urofollitropin designed to treat infertility in women. (R. 1-1, Compl. ¶¶ 1, 8, 9.) Plaintiffs allege that Defendant Ferring manufactures and distributes Bravelle and that Ferring recalled multiple lots of Bravelle because quality monitoring revealed that these lots did not meet potency specifications. (Id. ¶ 1.) Further, Plaintiffs allege that they consumed Bravelle that was part of the recalled lots. (Id.) In addition, Plaintiffs assert that Defendant Stericycle administered the Bravelle recall and had the duty to issue a proper and prompt warning to Plaintiffs about the allegedly defective Bravelle, yet failed to do so. (Id. ¶¶ 1, 3, 23-25.) Based on this recall and the Bravelle potency issues, Plaintiffs also bring claims sounding in negligence, strict liability, product liability, and express and implied warranties against Defendant Ferring seeking medical expenses, out-of pocket expenses, pain and suffering, and loss of income, along with other compensatory damages. (Id. ¶¶ 14-22, 27.) Also, Plaintiffs seek punitive damages. (Id. ¶ 28.)

         In its Notice of Removal, Defendant Ferring asserts that, based on Plaintiffs' state court complaint, Plaintiff Bahalim is a citizen of Texas and Plaintiff McDonald is a citizen of Utah. (R. 1, Removal ¶ 19; Compl. ¶¶ 4, 5.) Further, Defendant Ferring alleges that it is a citizen of Delaware and New Jersey for purpose of diversity of citizenship purposes. (Removal ¶ 17; Compl. ¶ 7.) Defendant Stericycle, on the other hand, is a citizen of Illinois and Delaware. (Removal ¶ 18; Compl. ¶ 6.) Plaintiffs do not dispute these diversity jurisdiction allegations.


         I. Motion to Remand

         “Defendants may remove a civil action from state court to the federal district court located in the place where such action is pending, as long as the federal district court had original jurisdiction over the case.” Yassan v. J.P. Morgan Chase & Co., 708 F.3d 963, 968 (7th Cir. 2013) (internal quotation marks omitted); see also 28 U.S.C. § 1441(a). “A defendant removing a case on diversity grounds must not only demonstrate that the case satisfies the requirements of 28 U.S.C. § 1332(a), but must also clear the ‘additional hurdle' of 28 U.S.C. § 1441(b)(2), or the ‘forum defendant rule.'” Morris v. Nuzzo, 718 F.3d 660, 664-65 (7th Cir. 2013). “The party seeking removal bears the burden of proving the propriety of removal; doubts regarding removal are resolved in favor of the plaintiff's choice of forum in state court.” Id. at 668; see also Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009) (“The party seeking removal has the burden of establishing federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court.”).

         II. Federal Rule of Civil Procedure 12(b)(2)

         A motion to dismiss under Rule 12(b)(2) tests whether a federal court has personal jurisdiction over a defendant. See Fed. R. Civ. P. 12(b)(2); Central States v. Phencorp. Reins. Co., 440 F.3d 870, 875 (7th Cir. 2006). “The plaintiff bears the burden of establishing personal jurisdiction.” Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 799 (7th Cir. 2014). When ruling on a Rule 12(b)(2) motion to dismiss based on the submission of written materials, a plaintiff need only make a prima facie case of personal jurisdiction. See Northern Grain Mktg., LLC v. Greving, 743 F.3d 487, 491 (7th Cir. 2014). In analyzing a Rule 12(b)(2) motion without conducting an evidentiary hearing, courts accept all well-pleaded facts in the complaint as true and resolve any factual disputes in the parties' affidavits in plaintiff's favor. See Felland v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012); Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). That being said, the Court “accept[s] as true any facts contained in the defendant's affidavits that remain unrefuted by the plaintiff.” GCIU-Employer Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1020 n.1 (7th Cir. 2009).

         III. Federal Rule of Civil Procedure 12(b)(6)

         “A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc.,761 F.3d 732, 736 (7th Cir. 2014). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Under the federal pleading standards, a plaintiff's “factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic v. Twombly,550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Put differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). When ...

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