United States District Court, N.D. New York
DONALD J. HUMPHREY, as Administrator of the Estate of Mary Ann Humphrey, Plaintiff,
KENNETH D. RILEY et al., Defendants.
THOMAS P. VALET, ESQ., Rheingold, Valet Law Firm, New York, NY, for the Plaintiff.
EDWARD D. LAIRD, JR., ESQ., WILLIAM C. FIRTH, ESQ., Carter, Conboy Law Firm, Kenneth D. Riley, Mary Imogene Bassett Hospital, Albany, NY,
THOMAS G. DALEY, ESQ., AARON F. CARBONE, ESQ., Maynard, O'Connor Law Firm, Peter R. Cole, Chandra Jones, Sailaja, Alapati, Bhavana Daruvari, Albany Medical Center, Albany, NY, JOHN J. JABLONSKI, ESQ., LATHA RAGAVAN, ESQ., Bayer Healthcare Pharmaceuticals, Inc., Goldberg, Segalla Law Firm, Buffalo, NY, for the Defendants.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiff Donald J. Humphrey, as Administrator of the Estate of Mary Ann Humphrey, commenced this action against defendants Kenneth D. Riley, D.O., Peter R. Cole, M.D., Chandra Jones, M.D., Sailaja Alapati, M.D., Bhavana Daruvari, D.O., Darielle D. Dartt, CRNA, the Mary Imogene Bassett Hospital, Albany Medical Center (collectively "New York defendants"), and Bayer Healthcare Pharmaceuticals, Inc., alleging several causes of action generally sounding in negligence, medical malpractice, and products liability, as well as a claim pursuant to New York General Business Law for consumer fraud. ( See generally Compl., Dkt. No. 1, Attach. 1 at 3-38.) Bayer filed a pre-answer motion, pursuant to Fed.R.Civ.P. 12(b)(6), seeking dismissal of Humphrey's complaint. (Dkt. No. 5.) Also pending is Humphrey's motion, pursuant to 28 U.S.C. § 1447(c), seeking remand of this case to the Supreme Court of the State of New York, County of Albany, because it was improperly removed, and also seeking the imposition of costs for the motion to remand. (Dkt. No. 6; Dkt. No. 6, Attach. 1 at 1.) For the reasons that follow, Humphrey's motion is granted insofar as it seeks remand of this case to state court and denied insofar as it seeks an award of costs, and Bayer's motion to dismiss is denied.
Humphrey commenced this action as administrator of the estate of decedent Mary Ann Humphrey, his spouse. (Compl. ¶¶ 1, 198.) Humphrey's complaint alleges several causes of action against defendants stemming from Mary Ann's use of the Mirena intrauterine device (IUD), a contraceptive device designed and sold by Bayer. ( Id. ¶ 81.) Specifically, Humphrey alleges that Mary Ann's use of the Mirena IUD was "the cause of or conduit for" several medical ailments that she developed, including "a Beta Hemolytic Strep Group A (GAS') infection, pelvic inflammatory disease, pelvic abscess and toxic shock syndrome." ( Id. ¶¶ 108, 155, 196.)
On December 23, 2011, Mary Ann went to Bassett Hospital, complaining of "headaches, rashes, [vision problems], abdominal pain, fever, nausea, vomiting and diarrhea." ( Id. ¶¶ 93-94.) On December 26, she went to Albany Medical Center hospital with the same complaints. ( Id. ¶¶ 95-106.) Humphrey alleges that the medical staff that attended to Mary Ann did not properly diagnose and treat her conditions, and failed to identify the Mirena IUD as the cause of her symptoms, ultimately resulting in her death on December 27. ( Id. ¶¶ 108, 196.)
Humphrey commenced this action in New York State Supreme Court in Albany County in November 2013. (Compl.) In the complaint, he indicates that he is a New York resident, ( id. ¶ 2), as are all defendants, ( id. ¶¶ 3-28), except for Bayer, which is a Delaware corporation having its primary place of business in New Jersey, ( id. ¶ 79). Bayer subsequently removed the action to this court, on the basis of diversity jurisdiction. (Dkt. No. 1 ¶¶ 7-17.) Specifically, Bayer asserts that the citizenship of the New York defendants "may be disregarded for jurisdictional purposes since those defendants... were fraudulently misjoined." ( Id. ¶ 7.) Humphrey has since moved to remand the action to the state court where it was commenced. (Dkt. No. 6.)
III. Standard of Review
With respect to cases removed to federal court from state court, 28 U.S.C. § 1447(c) provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." "It is well-settled that the party asserting federal jurisdiction bears the burden of establishing jurisdiction." Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d Cir. 2006) (citation omitted). Accordingly, "[o]n a motion to remand, the party seeking to sustain the removal, not the party seeking remand, bears the burden of demonstrating that removal was proper." Wilds v. UPS, Inc., 262 F.Supp.2d 163, 171 (S.D.N.Y. 2003) (internal quotation marks and citation omitted). "Unless that burden is met, the case must be remanded back to state court." Id. (internal quotation marks and citation omitted).
A. Joinder of ...