We have always wondered why judges are hesitant to sever the claims of plaintiffs who never should have joined their claims together in the first place. You know what we mean—multiple plaintiffs, sometimes dozens of them, who join their claims together in one complaint based only on the allegation that they used the same or similar products. This is not only about avoiding filing fees (although it partly is). Plaintiffs and their attorneys frequently use improper joinder to manipulate the forum and evade federal jurisdiction. That occurs when multiple plaintiffs whose claims unquestionably presented complete diversity of citizenship combine their claims into one complaint with one or more plaintiffs whose citizenship is not diverse with one defendant.
The proper approach here is to sever the separate plaintiffs’ claims so each can proceed on its own, and a recent case in California illustrates the two ways by which to do that. In Kline v. Mentor Worldwide, LLC, No. 2:19-cv-00877, 2019 WL 3245102 (E.D. Cal. July 19, 2019), plaintiffs from California, Pennsylvania, Mississippi, and Florida sued Pennsylvania and California defendants alleging personal injuries from breast implants. As you might expect, each plaintiff had her own story—different doctors, different alleged injuries, different procedures over extended periods of time, etc.—so the defendants removed the case to federal court.
But what about the lack of complete diversity? The defendants urged the district court to (1) find the California defendant (a holding company that neither made nor sold a product) fraudulently joined and (2) asked the district court to sever the claims of the individual plaintiffs, who were completely unrelated. This is the first way to address the improper joinder of unrelated plaintiffs—remove to federal court and argue “fraudulent misjoinder” (which is different from “fraudulent joinder”). We explained fraudulent misjoinder in some detail in one or our earliest posts here, but in short it just means that the district court should sever the individual plaintiffs’ claims and retain jurisdiction over those where there is complete diversity.
That is what the district court in Kline should have done, but it only partly delivered. To begin, the district court found that the plaintiffs had fraudulently joined the California holding company because “plaintiffs have not articulated any legal theory under which they could potentially recover against defendant [holding company].” Id. at *4. The California holding company’s citizenship therefore was disregarded. Id.
The district court deferred, however, on whether to sever the plaintiffs’ claims as misjoined. It mattered for diversity jurisdiction because there were still a Pennsylvania plaintiff and a Pennsylvania defendant left in the case. But the district court decided that the state court on remand “could evaluate the propriety of joinder under state law.” Id. The district further observed that “[i]t does not appear that doing so will frustrate defendant’s statutory right of removal in the event that the state court should subsequently severe plaintiffs’ claims.” Id.
It seems to us that remanding under these circumstances was unnecessary, especially where the district court expressly contemplated that the case might be removed again. But the order does lead us to the second way to address the improper joinder of unrelated plaintiffs—file a motion to sever in state court. That is what the defendants did on remand, and it worked. Citing the binding authority of David v. Medtronic, 237 Cal. App. 4th 734 (2015) (which came in fourth on our top drug and device opinions list for 2015 and which you can read more about here and here), the state trial court ruled that plaintiffs are not properly joined where they are merely implanted with the same medical device during different surgeries performed by different surgeons who had different levels of knowledge. Kline v. Mentor Worldwide LLC, No. 34-2019-00255852-CU-PL-GDS, Slip op. at 2 (Cal. Superior Court Nov. 13, 2019). In so ruling, the state court cited the plaintiffs’ different residences, different procedures at different times, and their different alleged injuries. Id. The state court also rejected the argument that an alleged failure to follow FDA regulations and report adverse events was sufficient to support a finding that the plaintiffs’ surgeries were “part of the same series of transactions.” Id. Moreover, the duty to report adverse events was not the same for each plaintiff’s case anyway because of different requirements at different times. Id.
In the end, the state court ruled as follows:
Under these circumstances, the Court finds that Plaintiffs have not alleged a single scheme, depending on the same misrepresentations, and leading to transactions exactly similar in kind and manner of operation. [citing David v. Medtronic]. The Court finds that Plaintiffs’ separate surgeries, conducted at different times by different physicians in different states, are separate and distinct transactions. Accordingly Plaintiffs were not properly joined under Code of Civ. Proc. § 378 and severance is proper.
Id. This is the correct result, and we will return to our opening observation: Why are court hesitant to enter orders like this one? We don’t know. We do know that the federal district court in Kline expressed its view that the defendants could remove again if the state court severed the plaintiffs’ claims, which it did. We also know that the federal district court has already ruled that the California holding company defendant (a forum defendant) was fraudulently joined. We like the defendants’ chances going forward.