United States District Court, N.D. California
PRETRIAL ORDER NO. 191: GRANTING MOTION TO REMAND RE:
DKT. NO. 5228
CHHABRIA United States District Judge
Cichy, a citizen of Illinois, moves to remand this case to
state court. In 2008, Cichy was diagnosed with acute myeloid
leukemia, allegedly from exposure to Roundup. See
Complaint ¶ 74, Dkt. No. 5228-2. He filed this action in
the Circuit Court of Cook County, Illinois, where he brought
claims of design defect, failure to warn, and negligence
against Monsanto Co. and Bayer Corp. Id.
also raised medical malpractice claims against three Illinois
defendants: Northwestern Memorial Hospital, Northwestern
Medical Faculty Foundation, and Dr. Olga Frankfurt.
Id. ¶¶ 186-278. These healthcare
defendants treated Cichy's acute myeloid leukemia with a
stem-cell transplant. Id. ¶ 192. To guard
against the risk of infection, the healthcare defendants
prescribed Voriconazole, an antifungal medication, in January
2009. Id. ¶ 200. After more than nine years of
on-and-off use of Voriconazole, Cichy was informed in July
2018 that overexposure to the drug could be causing his
painful skin injuries. Id. ¶ 209.
existence of Cichy on one side of the litigation, and the
healthcare defendants on the other, would typically defeat
the complete diversity necessary for subject-matter
jurisdiction under 28 U.S.C. § 1332(a). See
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
Monsanto nonetheless removed this case under 28 U.S.C. §
1441(b) on the ground that Cichy both fraudulently joined and
fraudulently misjoined the healthcare defendants. Monsanto
has not carried its heavy burden of establishing either
exception to the traditional requirement of complete
diversity. Accordingly, the motion to remand is granted.
and Monsanto dispute whether the precedent of the Ninth
Circuit or the Seventh Circuit governs the federal-law
aspects of this motion. As explained in a prior order, the
precedent of the Ninth Circuit is binding on issues of
federal law. See Pretrial Order No. 158, Dkt. No.
4549. Subject-matter jurisdiction implicates a body of
“unitary federal law” and thus presents neither a
choice-of-law issue nor an opportunity for deference to the
transferor circuit's precedents. In re Korean Air
Lines Disaster of September 1, 1983, 829 F.2d 1171,
1174-76 (D.C. Cir. 1987) (R.B. Ginsburg, J.); accord
Newton v. Thomason, 22 F.3d 1455, 1460 (9th Cir. 1994).
non-diverse defendant is fraudulently joined if there is no
possibility that the state court would hold that defendant
liable. See Grancare, LLC v. Thrower by and through
Mills, 889 F.3d 543, 548 (9th Cir. 2018). As the Ninth
Circuit recently clarified, the party asserting fraudulent
joinder must satisfy “the ‘wholly insubstantial
and frivolous' standard for dismissing claims
under” Federal Rule of Civil Procedure 12(b)(1).
Id. at 549 (quoting Bell v. Hood, 327 U.S.
678, 682-83 (1946)). That rigorous burden has been met in
this circuit “where a defendant demonstrates that a
plaintiff is barred by the statute of limitations from
bringing claims against that defendant.” Id.
Monsanto contends that this case fits into that line of cases
because the statute of limitations plainly bars Cichy's
medical-malpractice claims against the healthcare defendants.
argument why the statute of limitations does not bar his
claims against the healthcare defendants is not wholly
insubstantial or frivolous. As all parties agree, Illinois
law governs these medical-malpractice claims. Van Dusen
v. Barrack, 376 U.S. 612, 639 (1964). Illinois imposes a
two-year statute of limitations and a four-year statute of
repose on medical-malpractice claims. 735 ILCS 5/13-212(a).
Monsanto argues that the clock began to run once Cichy was
diagnosed with Bowen's disease (an early form of skin
cancer) in April 2015, well before the filing of the
complaint in March 2019. But Illinois law provides that the
statute of limitations does not begin to run until the end of
a continuous course of negligent treatment. Cunningham v.
Huffman, 154 Ill.2d 398, 405-07 (1993). Cichy contends
that the defendants' prescription of Voriconazole from
January 2009 to July 2018 represents a series of related
negligent acts. Assessing the viability of Cichy's theory
under Cunningham would require what a federal court
may not perform: “a searching inquiry into the merits
of the plaintiff's case.” Grancare, 889
F.3d at 549. The healthcare defendants therefore were not
concept of fraudulent misjoinder comes from Tapscott v.
MS Dealer Service Corp., 77 F.3d 1353 (11th Cir. 1996).
In that decision, the Eleventh Circuit held that a
non-diverse defendant has been fraudulently joined if that
defendant has “no real connection with the
controversy” between the plaintiff and the diverse
defendant. Id. at 1360 (quoting Wilson v.
Republic Iron & Steel Co., 257 U.S. 92, 97 (1921)).
Tapscott thus authorizes federal courts to disregard
a potentially meritorious claim against a non-diverse
defendant on the ground that the actions should be proceeding
separately-one in state court, and one in federal court.
Notably, the Ninth Circuit has not yet adopted the rule from
Tapscott. This Court has also expressed its
misgivings on the propriety of adjudicating claims of
fraudulent misjoinder. See Pretrial Order No. 157 at
6 n.2, Dkt. No. 4533. But even assuming fraudulent misjoinder
can be a basis for disregarding these non-diverse defendants,
Monsanto has not carried its burden in this case.
to Monsanto's argument, fraudulent misjoinder is judged
by reference to state procedural law. A defendant has been
wrongfully deprived of its right to removal only if the
non-diverse co-defendant shouldn't have been joined in
the state proceeding. See Osborn v. Metropolitan Life
Insurance Co., 341 F.Supp.2d 1123, 1128-29 (E.D. Cal.
2014). It would turn the presumption against removal on its
head to declare that a defendant properly joined under state
law was “misjoined” in state court because
Federal Rule of Civil Procedure 20 would dictate a different
result upon removal to federal court.
Illinois law, a plaintiff may join defendants “against
whom a liability is asserted either jointly, severally or in
the alternative arising out of the same transaction or series
of transactions, regardless of the number of causes of action
joined.” 735 ILCS 5/2-405(a). In this respect, Illinois
law is “similar to federal law.” Alegre v.
Aguayo, 2007 WL 141891, at *6 (N.D. Ill. Jan. 17, 2007).
But Illinois law also provides that when “the plaintiff
is in doubt as to the person from whom he or she is entitled
to redress, he or she may join two or more defendants.”
735 ILCS 5/2-405(c). In the spirit of liberal joinder, the
Illinois Supreme Court has encouraged plaintiffs to join
defendants from “closely related” yet distinct
transactions. Boyd v. Travelers Insurance Co., 166
Ill.2d 188, 198-99 (1995).
joinder of claims that he suffered injuries from his cancer
and from the negligent treatment of his cancer is not
“so egregious” an application of state joinder
rules to be tantamount to fraud. Tapscott, 77 F.3d
at 1360. Consider that if the injuries from the exposure to
Voriconazole were a foreseeable result of the treatment of
acute myeloid leukemia, those harms might be attributable to
Monsanto's allegedly tortious conduct. No doubt, upon its
return to state court, Monsanto may prevail on its argument
that these claims are too attenuated to be joined together
under Illinois law. But that possibility only underscores the
wisdom of moving for severance in state court prior to
removal of the action to federal court.
Rule of Civil Procedure 21 does not permit an end-run around
the narrowly cabined doctrine of fraudulent joinder and the
already-questionable doctrine of fraudulent misjoinder. Some
courts have reached a different conclusion. See,
e.g., Kelly v. Amylin Pharmaceuticals, LLC,
2014 WL 1249549, at *5 (S.D. Cal. Aug. 8, 2014). But federal
jurisdiction is measured from the time of removal, and
“[t]he Court can't exercise jurisdiction it
doesn't have for the purpose of creating federal
jurisdiction.” Pretrial Order No. 157 at 6. Nor should
Rule 21 be given an interpretation that “sanction[s]
improper removals.” Allen v. FDIC, 710 F.3d
978, 984-85 (9th Cir. 2013).
secured an order remanding this case, Cichy requests costs
and attorney's fees under 28 U.S.C. § 1447(c). This
award would be appropriate only if Monsanto lacked an
objectively reasonable basis for removing this case.
Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005). Some courts presented with arguably similar facts-a
products liability claim against a manufacturer and a medical
malpractice claim against a healthcare provider-have deemed
the defendants fraudulently misjoined. See, e.g., Sutton
v. Davol, Inc., 251 F.R.D. 500, 504-05 (E.D. Cal. 2008).
Although the Court does not agree those decisions, Monsanto
had a leg to stand on when it filed its notice of removal.
Cichy's request for costs and attorney's fees is