United States District Court, E.D. Louisiana
ORDER AND REASONS
D. ENGELHARDT UNITED STATES DISTRICT JUDGE
before the Court is supplemental briefing on the issue of
severance of multi-plaintiff cases in relation to
Plaintiffs' Omnibus Motion to Remand Certain Cases to the
Superior Courts of California (Rec. Doc. 469). See
Rec. Docs. 835, 837, 1717, 1748, and 1928. Having carefully
considered the supporting and opposing submissions, the
record, and the applicable law, IT IS
ORDERED that the two multi-plaintiff cases,
Ernyes-Kofler, et al. v. Sanofi S.A. et al., No.
2:17-cv-03867, and McCallister, et al. v. Sanofi S.A. et
al., No. 2:17-cv-02356, be REMANDED in
their entirety to the Superior Courts of California.
sanofi- aventis U.S. LLC (“sanofi”) makes the
following arguments in support of severance of the
multi-plaintiff cases in its initial supplemental memorandum
to the Court: (1) MDL Courts routinely mandate severance of
multi-plaintiff complaints; (2) Relevant case law in the
context of motions to remand authorizes severance of these
plaintiffs; (3) The Federal Rules of Civil Procedure
authorize the severance of a multi-plaintiff complaint when
plaintiffs are procedurally misjoined under Rule 20(a)(1);
and (4) The Court may sever the multi-plaintiff complaints
pursuant to Federal Rule of Civil Procedure 21 without a
finding of procedural misjoinder. See Rec. Doc. 835.
Out of these four arguments, the Court finds that
sanofi's contention that the multi-plaintiff complaints
should be severed because of procedural misjoinder is most
misjoinder, also known as fraudulent misjoinder, was
recognized in the Eleventh Circuit case, Tapscott v. MS
Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir.1996),
abrogated on other grounds, Cohen v. Office Depot,
204 F.3d 1069 (11th Cir.2000), and it “occurs when a
plaintiff attempts to defeat removal by misjoining the
unrelated claims of non-diverse parties.” In re
Fosamax Prod. Liab. Litig., No. 1:06-MD-1789, 2008 WL
2940560, at *4 (S.D.N.Y. July 29, 2008). Put another way,
“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.” Id. (internal citations omitted).
Under Tapscott, “mere misjoinder” is not
sufficient. 77 F.3d at 1360. The misjoinder must be
“totally unsupported or ‘egregious'
misjoinder.” Bienemy v. Cont'l Cas.
Co., No. CIV.A. 09-6647, 2010 WL 375213, at *4 (E.D. La.
Jan. 26, 2010) (citing Tapscott, 77 F.3d at 1360).
“Where fraudulent misjoinder is found, courts sever the
misjoined party pursuant to Federal Rule of Civil Procedure
21, thereby preserving diversity jurisdiction over the
remainder of the action. In re Fosamax Prod. Liab.
Litig, 2008 WL 2940560, at *4. Moreover,
District courts in the Fifth Circuit routinely consider
fraudulent misjoinder to be a viable procedural attack,
although the Fifth Circuit has not expressly adopted the
Tapscott doctrine. See, e.g., id.; NGO
v. Essex Ins. Co., No. 07-7643, 2008 WL 4544352, at *2
(E.D. La. Oct. 9, 2008); see also In re Benjamin Moore
& Co., 318 F.3d 626, 630 (5th Cir. 2002)
(recognizing the “force” of the fraudulent
misjoinder doctrine). . . While there is some disagreement as
to whether state or federal joinder rules determine the
propriety of joinder in a removal analysis, courts in the
Eastern District of Louisiana apply state joinder principles.
See Parish v. Exxon Mobile Corp., No. 13-6717, 2015
WL 4097111, at *12 (E.D. La. July 7, 2015); see also
Davis v. Cassidy, No. 11-1563, 2011 WL 6180054, at *2
(E.D. La. Dec. 13, 2011); Turner v. Murphy Oil USA,
Inc., No. 05-4206, 2007 WL 2407310, at *5 (E.D. La. Aug.
In re: Xarelto (Rivaroxaban) Prod. Liab. Litig., No.
16-1066, 2016 WL 4409555, at *4 (E.D. La. Aug. 19, 2016).
Thus, while sanofi's argument focuses on joinder of
Plaintiffs under Rule 20 of the Federal Rules of Civil
Procedure, this Court will apply the joinder principles of
the state of California, where these multi-plaintiff
complaints were originally filed.
Code of Civil Procedure §378, which governs the joinder
of plaintiffs and is essentially the same as Rule 20(a) of
the Federal Rules of Civil Procedure, provides that:
All persons may join in one action as plaintiffs if ….
[t]hey 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.
Cal. Civ. Proc. Code § 378(a). Moreover,
California's joinder rules are interpreted more liberally
than Federal Rule of Civil Procedure 20(a). See In re
Fosamax Prod. Liab. Litig., 2008 WL 2940560, at *8
(citing Osborn v. Metro. Life Ins. Co., 341
F.Supp.2d 1123, 1128 (E.D.Cal.2004)). “The requirement
that the right to relief arise from the ‘same
transaction or series of transactions' is construed
broadly. It is sufficient if there is any factual
relationship between the claims joined (and this tends to
merge with the ‘common question' requirement [
]).” Id. (internal citations omitted).
the showing made, the Court cannot conclude that
Plaintiffs' claims were egregiously misjoined. See
Blasco v. Atrium Med. Corp., No. C 14-03285, 2014 WL
12691051, at *7-8 (N.D. Cal. Oct. 30, 2014) (“The
tenuous connection between the eight individual
Plaintiffs' claims in this case make it a close question
whether joinder was proper even under California's
liberal interpretation of its joinder rule. . . Further, even
if the propriety of the joinder is questionable, the Court
does not find that it is so ‘egregious' as to
require the application of the fraudulent misjoinder
doctrine.”). Defendants assert that despite the lack of
case-specific allegations within the multi-plaintiff
complaints, “it is incredibly likely that, among other
things, each Plaintiff was diagnosed with breast cancer at
different times, had different breast cancer diagnoses, had
different prescribing physicians, were treated with different
chemotherapy combinations, were treated for different periods
of time, had different subsequent medical treatment, and have
different degrees of alleged persistent alopecia.”
(Rec. Doc. 835). However, it is also possible that there may
be common factual and legal issues between these
Plaintiffs' claims. See Blasco, 2014 WL
12691051, at *8 (“On the one hand, there are factual
differences between the individuals' claims against the
various Defendants and there may well be separate legal
issues that arise with respect to the various Plaintiffs. On
the other hand, there are some common questions of law and
fact connecting all of the Plaintiffs' claims against the
various Defendants”). Thus, severance is inappropriate
under the instant circumstances, as the Court has not found
egregious misjoinder of Plaintiffs' claims.
addition to the supplemental briefing in support of
severance, sanofi subsequently filed another supplemental
memorandum, arguing that Plaintiffs have no basis upon which
to pursue their product liability claims against McKesson
Corporation (“McKesson”) because recently
discovered information revealed that McKesson did not
distribute Taxotere or docetaxel to the facilities where
Plaintiffs Klara Ernyes-Kofler, Lisa McCallister, Sandra
Isham, and Josephine Hicks received their respective
docetaxel infusions. See Rec. Doc. 1717. However,
Plaintiffs submit that at least one Plaintiff's medical
records explicitly state that she received docetaxel from
McKesson Packaging Services, creating a factual dispute as to
McKesson's involvement. (Rec. Doc. 1748 at p. 2). In
response, sanofi argues that the medical records reveal that
this plaintiff received docetaxel manufactured or branded by
McKesson, not Taxotere or docetaxel manufactured by sanofi,
so sanofi should be dismissed from that case prior to remand.
See Rec. Doc. 1928. However, the Court has
previously considered the propriety of McKesson's joinder
with regard to Plaintiffs Klara Ernyes-Kofler, Lisa
McCallister, Sandra Isham, and Josephine Hicks, and given the
factual dispute as to McKesson's involvement with regard
to at least one Plaintiff, remand is appropriate under the
IT IS ORDERED that the two multi-plaintiff
cases, Ernyes-Kofler, et al. v. Sanofi S.A. et al.,
No. 2:17-cv-03867, and McCallister, et al. v. Sanofi S.A.
et al, No. 2:17-cv-02356, be REMAN ...