MEMORANDUM OPINION AND ORDER
This mаtter is before the Court on Plaintiffs’ Motion to Remand. The Court having reviewed the Motion, response, the briefs of counsel, the authorities cited, the pleadings and exhibits on file, finds as follows:
FACTUAL/PROCEDURAL BACKGROUND
Plaintiffs initially filed this suit in the Circuit Court of Covington County, Mississippi. The suit concerns Plaintiffs’ ingestion of Stadol, a prescription medication, with alleged addictive and harmful side effects. The Complaint alleges nine counts against four out-of-statе pharmaceutical Defendants: strict product liability, negligence, breach of warranties, fraud, breach of fiduciary duty, civil conspiracy, violation of Mississippi Unfair or Deceptive Acts and Practices Act, fraudulent concealment, and negligent and willful misrepresentation. Plaintiffs allege only negligence against the resident Defendant physician, Dr. Tanious, and the clinic with which he is associated, Jefferson Medical Associates. Linda Jones was the only Plaintiff treated by the physician Defendant. None of the other four Plaintiffs was treated by Dr. Tanious, nor treated at Jefferson Medical Associates. Plaintiffs originally named three Mississippi resident pharmacy defendants who filled prescriptions for Linda Jones. These pharmacy defendants have been dismissed. An out-of-state pharmacy was also dismissed. Eаch Plaintiff resides in a different county in Mississippi. Defendants removed this case, claiming complete diversity by virtue of alleged fraudulent joinder by Plaintiffs.
REMAND AND FEDERAL JURISDICTION
Through decades of Supreme Court jurisprudence, it is axiomatic that federal courts are courts of limited jurisdiction. “When a federal court acts outside its statutory subject-matter jurisdiction, it violates the fundamental constitutional precept of limited federal power.”
Marathon Oil Co. v. Ruhrgas,
The Fifth Circuit has consistently held that the party urging jurisdiction upon the District Court bears the burden of demonstrating that the ease is one which is properly before that Court.
Village Fair Shopping Center Co. v. Sam Broadhead Trust,
When considering whether a non-diverse defendant has been fraudulently joined to defeat diversity of citizenship jurisdiction, courts may “pierce the pleadings” and consider “summary judgment-type” evidence such as affidavits and deposition testimony.
See Cavallini v. State Farm Mut. Auto Ins. Co.,
Once the Court allows a “piercing” of the pleadings and a defendant has shown “no possibility or “no reasonable basis” of recovery by specific evidence, a plaintiff cannot rely on conclusory or generic allegations of wrongdoing on the part of the non-diverse defendant to prevent remand. Even though the heavy burden of persuasion remains on the removing party. Fifth Circuit precedent establishes a shifting burden of persuasion.
See Badon v. RJR Nabisco, Inc.
“When a federal court is properly appealed to in a case over which it has, by law, jurisdiction, it has a duty to take such jurisdiction.”'
England v. Louisiana State Bd. of Medical Examiners,
375 U,S. 411, 415,
LITIGANT’S RIGHT TO APPROPRIATE FORUM
The plaintiff is master of his complaint and may through a properly pleaded complaint avoid federal jurisdiction. For instance in certain cases, plaintiffs may limit their recovery to less than the jurisdictional amount of $75,000, or may disavow any federal causes of action and thus keep their case in state court.
See Caterpillar Inc. v. Williams,
ANALYSIS
The two issues before the Court are (1) whether the two remaining resident Defendants were fraudulently joined to defeat federal jurisdiction; and (2) whether the resident and non-resident Defendants were egregiously misjoined so as to constitute fraudulent joinder as to those Plaintiffs who were not treated by the resident physician Defendant.
1. Fraudulent Joinder
Defendants argue that the Plaintiffs have no possibility of establishing a cause of action against the resident Defendants because (1) the resident Defendants had no knowledge about the risk of addiction due to the Defendant pharmaceutical companies’ alleged withholding of information; and (2) the claims are barred by the statute of limitations. The complaint does not allege a specific date when the cause of action arose. Plaintiffs’ rebuttal briеf states that Jones’ claim arose after December 2000. Defendants bear the burden of demonstrating that removal is proper. Other than bare assertion, the Defendants have presented no evidence to demonstrate that the cause of action arose before December 2000. Resolving this in favor of Plaintiffs, the Court cannot say that there is no possibility of stating a cause of action due to the running of the statute of limitations.
As part of Plaintiffs’ claim, they allege that Dr. Tanious withheld information about Stadol from Plaintiff Jones. However, the Plaintiffs also allege that the pharmaceutical companies withheld the same information from Dr. Tanious. These contradictory allegations alone would not allow Plaintiff Jones to go forward against Dr. Tanious.
See Louis v. Wyeth-Ayerst Pharms., Inc.,
no. 5:00cv102 (S.D.Miss. Sept. 25, 2000);
Brown, et al v. Bristol-
Plaintiffs further alleged that Dr. Tanious did not comply with state regulations. The Mississippi Supreme Court in
Moore ex rel. v. Mem’l Hosp. of Gulfport,
Once the evidence has been fully developed by the proper court, it may be that Dr. Tanious was not negligent. However, it is impossible for this Court at this time to say that Plaintiff Jones has no possibili: ty of establishing a cause of action against Dr. Tanious. Consequently, under clearly controlling precedent, the Court cannot conclude that Dr. Tanious was fraudulently joined.
2. Egregious Misjoinder
Having determined that Dr. Tanious was not fraudulently joined in the traditional sense, the Court must alternatively determine whether Plaintiffs joining together in this action and/or Plaintiffs’ joinder of Defendants is an egregious misjoinder that equates to fraudulent joinder under Rule 20. The Eleventh Circuit has held that in some cases the misjoinder of parties whose claims involve “wholly distinct” transactions may equate to fraudulent joinder.
Tapscott v. MS Dealer Serv. Corp.,
A. Does Federal or State Rule 20 Apply?
The courts that have analyzed
Tapscott
are split on the issue оf whether federal or state rules of joinder should apply. For example, in
Conk v. Richards & O’Neil, L.L.P., 'll
F.Supp.2d 956 (S.D.Ind.1999), the district court held that the applicable standard is whether there is any possibility that the state court would find joinder permissible under the state rules. In
Johnson v. Glaxo Smith Kline,
Against this backdrop, the Mississippi Supreme Court recently acknowledged that federal courts “have found that M.R.C.P. 20 would allow joinder of plaintiffs in circumstances where F.R.C.P. 20 would not, even though the text of the two rules, in essence, are the same.”
Janssen Pharmaceutical Inc. v. Armond,
the prescribing of thе drug Propulsid by 42 different physicians to 56 different patients did not arise out of the same transaction, occurrence, or series of transactions or occurrences, and that joinder in this case unfairly prejudices the defendants. We hold that this join-der was improper and the trial court abused its discretion in denying the motion to sever and transfer.
Id. at 1095. As it was only concerned with interpreting Mississippi Rule 20, the court did not indicate whether the result would vary depending on whether the state or federal version of Rule 20 applies. The holding in Janssen, however, indicates little difference in how the Mississippi Supreme Court would interpret and apply Mississippi Rule 20 and how the federal courts would interpret and apply Federal Rule 20. 1
The diversity jurisdiction statute, 28 U.S.C. § 1332(a) and (a)(1), vests original jurisdiction in federal district courts where there is complete divеrsity of citizenship and the amount in controversy exceeds the jurisdictional amount. The removal statute, 28 U.S.C. § 1441, provides that any suit brought in state court which could have been brought in a federal court may be removed by the defendant or defendants if there is no “properly joined and served” in-state defendant.
Specifically, § 1441(a) provides “any civil action [including diversity] brought in a State court of which the district courts оf the United States have original jurisdiction,
may be removed
...(emphasis added). Section 1441(b) specifically provides that diversity jurisdiction cases “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.” Since § 1441(a) refers to civil actions
brought in state court
and because § 1441(b) provides that these diversity jurisdiction cases may be removed only if an in-state defendant has not been “properly joined and served as defendant ],” § 1441(b) refers to proper joinder in the state court proceeding. Since the reference is to a state court proceeding, joinder in that action could only be proper in accordance with the state rule of procedure on joinder, not the federal rule of joinder. This Court concludes therefore that the question of egregious misjoinder must be resolved by considering Mississippi Rule 20.
2
However, this is of no mo-
Mississippi Rule 20 sets out what plaintiffs and what defendants may be permissively joined.
All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all defendants will arise in the action.
The first sentence of Rule 20 sets out the criteria as to when plaintiffs may be joined together in one action. The second sentence of Rule 20 sets out the criteria as to when defendants may be joined in one actiоn. Just because all plaintiffs may be joined in an action does not necessarily mean that all named defendants are appropriately joined.
Plaintiffs may join together if they allege a claim “arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.” Defendants may be joined together only if there is an alleged claim against the defendants “arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all defendants will arise in the action.” (emphasis added).
Without question all Plaintiffs have alleged a claim against the pharmaceutical Defendants arising out of the same series of transactions or occurrencеs, i.e., the manufacture and marketing of Stadol. Obviously there are common questions of fact and law that apply to the claims of all Plaintiffs against the pharmaceutical Defendants. Consequently, the Plaintiffs are not misjoined in their claims against the pharmaceutical Defendants.
As noted, it is not only necessary that the Plaintiffs are properly joined in the same action under Mississippi Rule 20, but the Defendants must also be properly joined. There is no misjoinder as to Plaintiff Jones’ claim against the pharmaceutical company and the treating physician. Plaintiff Jones’ claim against her treating physician and the pharmaceutical Defendants have a common transaction or oecur-
The problem arises in the joinder of Dr. Tanious with the pharmaceutical Defendants as to the claims of the Plaintiffs not treated by Dr. Tanious. The four Plaintiffs not treated by Dr. Tanious do not allege a claim arising out of the same transaction or occurrence, or series of transactions or occurrences against both Dr. Taniоus and the pharmaceutical companies that caused their injuries. And they cannot, because there was none. Likewise there are no common questions of law or fact as between the physician Defendants and the pharmaceutical Defendants as to the claims of the four Plaintiffs not treated by Dr. Tanious. The second sentence of Rule 20 plainly says that there must be common questions of law or fact as to “all defendants.” (emphasis added).
The only purpose of joining Dr. Tanious as a Defendant to the claims of these four Plaintiffs would have been to defeat the right of the pharmaceutical companies to a federal forum. By no stretch of the imagination could these four Plaintiffs have sued the pharmaceutical Defendants and avoided removal to federal court if they had not hitched their claim to thе claim of Linda Jones. Consequently, with respect to the four Plaintiffs not treated by Dr. Tanious, there was a misjoinder. The Court concludes that Mississippi Rule 20 does not authorize such. The Court finds that Dr. Tanious was egregiously misjoined with the pharmaceutical company as to all Plaintiffs who were not treated by Dr. Tanious. This is in accord with the plain language of Rule 20.
It makes sense to join parties if there are common occurrences
and
common issues of law or fact. But trying unrelated issues in one case defies commonsense and promotes neither justice nor judicial efficiency. In
Janssen,
the Mississippi Supreme Court considered the joinder of 56 plaintiffs in a single lawsuit against 42 different physicians and explained that “a joint trial would require 56 different fact situations, 56 sets of medical histories, and 56 sets of witnesses and testimony.... Instead of fostеring efficiency such a trial would unavoidably confuse the jury and irretrievably prejudice the defendants.”
Several federal district courts have reached a similar conclusion and denied remand based on misjoinder of physician defendants.
See In re Rezulin Products Liability Litigation,
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiffs’ Motion to Remand is GRANTED in part and DENIED in part. It is granted as to Plaintiff Jones. Her cause of action against Dr. Tanious and the pharmaceutical company is severed and remanded to Circuit Court of Covington County, Mississippi. The
Notes
. Federal rules provide for class certification.
See
Fеd.R.Civ.P. 23. Mississippi Rules of Civil Procedure have no provision for class certification, which may explain why the Mississippi Supreme Court in the past may have permitted more liberal permissive joinder of parties, as a substitute for class certification.
See Janssen,
. The Supreme Court has held that state procedural rules "cannot control the privilege of removal granted by the federal statute.”
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