Spindel v. Amarat, et al
| JILLIAN SPINDEL |
| TERRY D. AMARAT, M.D., JON-PAUL DIMAURO, M.D., NORTHWELL HEALTH LONG ISLAND JEWISH MEDICAL CENTER, DEPUY SYNTHES PRODUCTS, INC., DEPUY SYNTHES SALES, INC., DEPUY SYNTHES SPINE, INC., JOHNSON & JOHNSON, INC. and Terry D. Amarat |
| 2:2022cv03106 |
| May 25, 2022 |
| US District Court for the Eastern District of New York |
| Gary R Brown |
| Anne Y Shields |
| Personal Inj. Med. Malpractice |
| 28 U.S.C. § 1332 Diversity-Medical Malpractice |
| Defendant |
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ORDER finding as moot #19 Motion for Pre Motion Conference. See Order dated 7/20/2022. Ordered by Judge Gary R. Brown on 7/21/2022. c/ecf (Johnston, Linda)
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Order of Remand to State Court. As the Court previously noted, as several of the defendants are New York citizens, there is an absence of complete diversity in this matter. Acknowledging the lack of diversity, removing defendants argue that the inclusion of non-diverse defendants constitutes fraudulent misjoinder. Generally, in absence of complete diversity, the court cannot exercise jurisdiction. Lupo v. Hum. Affs., Intl, Inc., 28 F.3d 269, 274 (2d Cir. 1994) ("In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability.") Several courts have held that the doctrine of fraudulent misjoinder would allow a court to sever non-diverse parties, retaining jurisdiction over the diverse parties. See Massey v Cecil No. 19-cv-49, 2019 WL 1780139, at *4 (N.D.N.Y. Apr. 23, 2019) (assuming the applicability of the doctrine of fraudulent misjoinder in the Second Circuit); Nolan v. Olean Gen. Hosp., No 13-cv-333, 2013 WL 3475475, at *3 (W.D.N.Y. July 10, 2013) ("Fraudulent misjoinder occurs when a plaintiff purposefully attempts to defeat removal by joining together claims against two or more defendants where the presence of one would defeat removal and where in reality there is no sufficient factual nexus among the claims to satisfy the permissive joinder standard." (quoting Fed. Ins. Co. v. Tyco Intl Ltd., 422 F. Supp. 2d 357, 378 (S.D.N.Y. 2006)). Central to the question of fraudulent misjoinder is whether "the claims asserted by or against the non-diverse party who is joined lack a sufficient factual nexus to the case to support joinder under applicable rules of procedure." Abruzzo Docg Inc. v. Acceptance Indem. Ins. Co., No. 20-cv-4160 (MKB), 2021 WL 5304058, at *6 (E.D.N.Y. Nov. 15, 2021) (also noting courts evaluate claims of fraudulent misjoinder by applying the relevant state law rule for permissive joinder rather than the federal rule. The New York rule of civil procedure governing permissive joinder permits joinder of defendants "against whom there is asserted any right to relief jointly, severally, or in the alternative, arising out of the same transaction, occurrence, or series of transactions or occurrences" if "any common question of law or fact would arise." N.Y. C.P.L.R. 1002(b)).Plaintiff and non-removing defendants credibly dispute removing defendants' fraudulent misjoinder claim, arguingquite persuasivelythat the claims in the complaint, as a whole, share common questions of law and fact. See Humphrey v. Riley, No. 14-cv-80 (GLS)(TWD), 2014 WL 3400964, at *3 (N.D.N.Y. July 10, 2014) (finding that claims of product liability and medical malpractice "undoubtedly raise common questions of law and/or fact, particularly with regard to causation and the apportionment of liability, and the claims in this case arise from the same underlying transaction."); In re Fosamax Prods. Laib. Litig., Nos. 06-md-1789, 07-cv-2442, 07-cv-9564, 07-cv-9485, 07-cv-3792, 2008 WL 2940560, at *10 (S.D.N.Y. July 29, 2008) (holding that fraudulent misjoinder not present where "[a]ll of the claims asserted by [the plaintiff] arise from her suffering of jaw-related injuries" because "[s]he alleges that [a drug manufacturer]'s failure to adequately warn that taking [the drug] created a risk of these injuries caused their onset, and that the [treating dentists]' failure to properly diagnose and treat the injuries caused their aggravation"). Plaintiff and non-removing defendants highlight these reasons in their filings. DE 12, 15. Because Plaintiff's claims against removing defendants arise out of the same occurrence and raise common questions of fact and law, the Court cannot conclude that they were misjoinded under New York States permissive joinder rules.Thus, removing defendants, who bear the burden of demonstrating fraudulent misjoinder, have failed to make an adequate showing. Because the Court lacks jurisdiction over the action, the Court declines to address the merits of removing defendants' motions to sever. This matter is remanded to the Suffolk County Supreme Court, and the Clerk is respectfully directed to close the file. Ordered by Judge Gary R. Brown on 7/20/2022. c/ecf (Cowan, Timothy)
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| Filing 19 Letter MOTION for pre motion conference by Depuy Synthes Products, Inc., Depuy Synthes Sales, Inc.. (Larson, Joel) |
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ORDER denying #5 Motion to Sever without prejudice to renewal. Based upon the undersigned's individual rules, a party moving for a motion pursuant to Rules 19 and 21 of the Federal Rules of Civil Procedure must file a pre-motion letter. Counsel should note that, in appropriate cases, the pre-motion letter along withcounsel's argument at the pre-motion conference, may be construed, at the discretion of the Court, as the motion itself, and failure to raise the arguments in the pre-motion letter and the pre-motion conference shall be deemed waived. The Court also observes the bundling rule. See Rule II. Ordered by Judge Gary R. Brown on 6/27/2022. c/ecf (Johnston, Linda)
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| Filing 18 Letter Response to co-defendants' objection by Depuy Synthes Products, Inc., Depuy Synthes Sales, Inc. (Larson, Joel) |
| Filing 17 Letter Ltr to Court objecting to co-defendants' 4 page letter brief by Jon-Paul DiMauro, M.D., Northwell Health Long Island Jewish Medical Center (Deacy, Erin) |
| Filing 16 RESPONSE TO ORDER TO SHOW CAUSE by Depuy Synthes Products, Inc., Depuy Synthes Sales, Inc. (Larson, Joel) |
| Filing 15 RESPONSE TO ORDER TO SHOW CAUSE by Jillian Spindel (Lorber, David) |
| Filing 14 NOTICE of Appearance by David J. Lorber on behalf of Jillian Spindel (notification declined or already on case) (Lorber, David) |
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ORDER granting #13 Motion for Leave to Appear Pro Hac Vice: The attorney shall register for ECF; registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of all activity in this case. So Ordered by Magistrate Judge Anne Y. Shields on 6/15/2022. (Minerva, Deanna)
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| Filing 13 MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number CNYEDC-15659764. by Jillian Spindel. (Attachments: #1 Affidavit in Support Affidavit in Support of Motion to Admit Counsel Pro Hac Vice, #2 Certificate of Good Standing) (Lorber, David) |
| Filing 12 RESPONSE TO ORDER TO SHOW CAUSE by Jon-Paul DiMauro, M.D., Northwell Health Long Island Jewish Medical Center (Deacy, Erin) |
| Filing 11 STATE COURT RECORD Received from Supreme Court of the State of NY, County of Suffolk, 606734/2022. (Ortiz, Grisel) |
| Filing 10 DePuy's ANSWER to Complaint and Affirmative Defenses by Depuy Synthes Products, Inc., Depuy Synthes Sales, Inc.. (Larson, Joel) |
| Filing 9 First MOTION for Extension of Time to File letter briefs due 6/3/22 and 6/10/22 by Jon-Paul DiMauro, M.D., Northwell Health Long Island Jewish Medical Center. (Deacy, Erin) |
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ORDER granting #9 Motion for Extension of Time to File: On consent, the motion for extension of time to respond to this Court's May 27, 2022 Order to Show Cause is Granted. Counsel for plaintiff, as well as all other defendants, shall file a letter brief with the Court regarding their position(s) regarding the removal and possible remand, with appropriate authorities, on or before June 17, 2022. The DePuy defendants shall have, thereafter, one week to file a responsive letter brief. Ordered by Judge Gary R. Brown on 6/1/2022. c/ecf (Cowan, Timothy)
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ORDER TO SHOW CAUSE: The DePuy defendants have filed a convoluted and opaque removal petition in this action, purportedly removing select portions of this action from Suffolk County Supreme Court. Examination of those filings, however, reveal significant questions as to the validity of said removal, including: (1) the failure of the DePuy defendants to obtain consent from all other defendants in the action; (2) the plain absence of complete diversity; (3) the filing of a contemporaneous motion to sever, which would, in a sense, be preempted by the removal; (4) the failure to allege a specified amount in controversy; and (5) claims of fraudulent joinder and baseless causes of action. As such, the Court must examine the propriety of the removal, as it involves, inter alia, questions of subject matter jurisdiction, comity and the risks of inconsistent judgments and piecemeal litigation. To aid the Court in its review, counsel for plaintiff, as well as all other defendants, shall file a letter brief with the Court regarding their position(s) regarding the removal and possible remand, with appropriate authorities, within one week of the date of this Order. The DePuy defendants shall have, thereafter, one week to file a responsive letter brief, and will ensure that copies of this Order shall be served forthwith upon counsel for ALL parties to this action and the state court action. Ordered by Judge Gary R. Brown on 5/27/2022. c/ecf (Cowan, Timothy)
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ORDER granting #8 Motion for Leave to Appear Pro Hac Vice: The attorney shall register for ECF; registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of all activity in this case. So Ordered by Magistrate Judge Anne Y. Shields on 5/27/2022. (Minerva, Deanna)
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| Filing 8 Notice of MOTION to Appear Pro Hac Vice of JT Larson Filing fee $ 150, receipt number BNYEDC-15603510. by Depuy Synthes Products, Inc., Depuy Synthes Sales, Inc., Johnson & Johnson, Inc.. (Attachments: #1 Affidavit of JT Larson with certificate of good standing) (Larson, Joel) |
| Filing 7 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Landow, Concetta) |
| Filing 6 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (Landow, Concetta) |
| Filing 5 MOTION to Sever Product Liability Claims Brought Against DePuy and Johnson & Johnson by DEPUY SYNTHES PRODUCTS, INC., DEPUY SYNTHES SALES, INC., JOHNSON & JOHNSON, INC.. (Murdica, James) |
| Filing 4 CERTIFICATE of Counsel of Filing in State Court by James Francis Murdica on behalf of DEPUY SYNTHES PRODUCTS, INC., DEPUY SYNTHES SALES, INC., JOHNSON & JOHNSON, INC. (Murdica, James) |
| David J. Lorber; This case has been opened in the Eastern District of New York. If you plan to continue representing your client(s), you must be admitted to practice before this court. You must do so by applying for Pro Hac Vice or permanent admission. To apply for Pro Hac Vice admission, you must first register for an ECF login and password. Please visit the Court's website at www.nyed.uscourts.gov/attorney-admissions for guidance. Once registered, you must electronically file a Motion to Appear Pro Hac Vice. You must pay the required pro hac vice fee online.c/m to Attorney David J. Lorber. (Landow, Concetta) |
| Case Assigned to Judge Gary R. Brown and Magistrate Judge Anne Y. Shields. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Motions referred to Anne Y. Shields. (Landow, Concetta) |
| Filing 3 Corporate Disclosure Statement by DEPUY SYNTHES PRODUCTS, INC., DEPUY SYNTHES SALES, INC., JOHNSON & JOHNSON, INC. (Murdica, James) |
| Filing 2 NOTICE of Appearance by James Francis Murdica on behalf of DEPUY SYNTHES PRODUCTS, INC., DEPUY SYNTHES SALES, INC., JOHNSON & JOHNSON, INC. (notification declined or already on case) (Murdica, James) |
| Filing 1 NOTICE OF REMOVAL by DEPUY SYNTHES PRODUCTS, INC., DEPUY SYNTHES SALES, INC., JOHNSON & JOHNSON, INC. from Supreme Court of the State of New York, County of Suffolk, case number 606734/2022. ( Filing fee $ 402 receipt number ANYEDC-15601112) Was the Disclosure Statement on Civil Cover Sheet completed -Yes (Attachments: #1 Removal Action Complaint A - State Court Record, #2 Civil Cover Sheet) (Murdica, James) Modified on 5/26/2022 (Landow, Concetta). |
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