United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY, MAGISTRATE JDUGE.
the court is a Motion to Remand [doc. 7] filed by plaintiff
Robert Courville. Defendant Ethicon US, LLC
(“Ethicon”) opposes the motion and Courville has
filed a reply. Docs. 15, 16.
matter has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636. For the reasons stated below,
IT IS RECOMMENDED that plaintiff's
motion be DENIED and that all claims against
defendant Christus Health Southwestern Louisiana be
DISMISSED WITHOUT PREJUDICE.
suit arises from injuries that Courville claims he received
during two surgeries, performed in December 2016 and March
2017 at a hospital owned by Christus Health Southwestern
Louisiana (“Christus”) in Lake Charles,
Louisiana. Doc. 1, att. 2, p. 2. Courville alleges that he
sustained grave complications in both operations, resulting
from malfunctions in staplers manufactured by Ethicon, a
subsidiary of defendant Johnson & Johnson, Inc.
Id. at 2-3.
a Louisiana resident, filed suit in the 14th Judicial
District Court, Calcasieu Parish, Louisiana, on January 19,
2018. Id. at 1-7. As defendants he names Ethicon;
Johnson & Johnson, Inc.; Owens & Minor Distribution,
Inc. (alleged distributor of the Ethicon staplers); and
Christus. Id. at p. 1. Courville asserts that
Christus is the only defendant that is a Louisiana citizen.
Id. Ethicon removed the suit to this court on the
basis of diversity jurisdiction, 28 U.S.C. § 1332. Doc.
1, p. 1. Although it acknowledges that Christus is
non-diverse, Ethicon contends that jurisdiction is proper
because Christus was improperly joined. Id. at 1, 5.
Courville then filed the instant motion, arguing that remand
is required because Christus is an indispensable
party. Doc. 7, att. 1.
removing party bears the burden of showing that removal was
procedurally proper and federal jurisdiction exists. See
De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.
1995). Any civil action brought in a State court of which the
district courts have original jurisdiction may be removed to
the proper district court. 28 U.S.C. § 1441(a). If
removal is based on diversity of citizenship, the action is
removable only if there is complete diversity, which is found
where “none of the parties in interest properly joined
and served as defendants is a citizen of the State in which
such action is brought.” 28 U.S.C. § 1441(b).
“Jurisdictional facts are determined at the time of
removal, not by subsequent events.” Louisiana v.
Am. Nat'l Prop. & Cas. Co., 746 F.3d 633, 635
(5th Cir. 2014).
removal is based on a claim that a non-diverse party has been
improperly joined, then the removing party must establish
either “actual fraud in the pleading of jurisdictional
facts” or “an inability of the plaintiff to
establish a cause of action against the non-diverse party in
state court.” Smallwood v. Ill. Cent. R.R.,
385 F.3d 568, 573 (5th Cir. 2004) (citing Travis v.
Irby, 326 F.3d 644 (5th Cir. 2003)). Only the latter
method is relevant here because the defendant does not allege
fraud. Thus, the question is whether the defendant has shown
that there is no reasonable basis by which the plaintiff can
recover under applicable state law. Smallwood, 385
F.3d at 573. A mere theoretical possibility of recovery is
insufficient. See Travis, 326 F.3d at 648. In
reviewing a claim for improper joinder, all factual
allegations are evaluated in the light most favorable to the
plaintiff, with all contested issues of substantive fact
resolved in plaintiff's favor. Guillory v. PPG
Industries, Inc., 434 F.3d 303, 309 (5th Cir. 2005).
asserts that Christus is a qualified medical provider under
the Louisiana Medical Malpractice Act (“LMMA”),
La. R.S. § 40:1231.1 et seq. Doc. 15, p. 3.
Because a medical review panel had not issued a decision on
the merits of Courville's claims against Christus before
Courville filed suit, Ethicon maintains that the procedural
requirements of the LMMA were not met. Id. at pp.
2-3 (citing Flagg v. Stryker Corp., 819 F.3d 132
(5th Cir. 2016)). Thus, it urges this court to find that
Christus was improperly joined and deny the motion to remand.
Id. at p. 3.
LMMA governs malpractice claims brought against qualified
health care providers. La. R.S. § 40:1231.1. Health care
providers include hospitals and treatment facilities.
Id. at § 1231.1(A)(10). Malpractice is
“any unintentional tort or any breach of contract based
on health care or professional services rendered, or which
should have been rendered, by a health care provider, to a
patient … .” Id. at §
1231.1(A)(13). A plaintiff must first present malpractice
claims to a medical review panel and cannot file suit until
the panel issues an opinion on the merits. Flagg,
819 F.3d at 137-38 (citations omitted). Failure to exhaust
the procedural requirements of the LMMA before filing suit
compels dismissal of the claims without prejudice.
contends that remand is required because Christus is
non-diverse and all of his claims must be tried together as
they are “inextricably intertwined.” Doc. 16, pp.
1-2. Alternatively, he asks that the litigation be stayed in
this court pending the review panel's opinion.
Id. at p. 3. For support, Courville relies on
Johnson v. Scimed, Inc., 92 F.Supp.2d 587 (W.D. La.
2000). There, the plaintiffs submitted claims to a medical
review panel, alleging malpractice against a medical center
and two doctors, each of whom was non-diverse. Id.
at 588. The next day, they brought suit in Louisiana state
court against the manufacturer of allegedly defective stents
and the non-diverse defendants. Id. The manufacturer
removed the case to federal court, argued that the
non-diverse defendants were improperly joined because the
medical review panel had not yet issued an opinion on the
malpractice claims and thus the suit was premature.
Id. Plaintiffs sought remand, and the district court
reasoned that they had stated a valid cause of action for
malpractice because, although their claims would likely have
been dismissed as premature in state court, the LMMA's
requirement that a review panel issue an opinion before suit
could be filed was merely procedural. Id. at 592.
The court further reasoned that denying remand would ...