Cooke-bates v. Bayer Corp.

TONJI L. COOKE-BATES, asCo-Administrator of the Estate ofGLADYS M. COLEMAN, Plaintiff,

v.BAYER CORPORATION, et al., Defendants.

Action No. 3:10-CV-261

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

Dated: November 16, 2010

MEMORANDUM OPINION

This matter comes before the Court on Cooke-Bates's Motion for Certification pursuant to 28 U.S.C. § 1292(b) (Docket No. 30). Because Cooke-Bates does not raise an appealable issue on which there is substantial ground for disagreement, the Court DENIES the Motion.

I. Introduction

This motion arises out of a medical malpractice and product liability case involving the birth control drug Yaz. Plaintiff Tonji L. Cooke-Bates, ("Plaintiff) as Co-Administrator of the Estate of Gladys M. Coleman, is a Virginia resident. Plaintiff's decedent, Gladys Coleman, was also a Virginia resident. Cooke-Bates brings product liability claims against the Bayer Defendants for manufacturing and distributing Yaz. She also alleges a claim of medical malpractice against Dr. Michael D. Brooks ("Dr. Brooks").

Bayer Corporation, Bayer Healthcare Pharmaceuticals, Inc., and Bayer Healthcare, LLC

("Bayer Defendants") removed this action on April 21, 2010.¹ Cooke-Bates objected to removal. She argued the case belonged in state court because two opposing parties—Dr. Brooks and Cooke-Bates—were Virginia residents and therefore not completely diverse.

On August 2, 2010, the Court remanded the case to Richmond Circuit Court ("August 2 remand order"), on procedural grounds Plaintiff did not raise in her moving papers. The Court cited the "unanimity rule" in support of remand, concluding that Dr. Brooks's failure to consent to removal offended the widely-accepted rule that the failure of all defendants to consent was a procedural defect fatal to removal. See Payne v. Estate of Calzada, 439 F.3d 198, 203 (4th Cir. 2006) (describing lack of unanimous consent by defendants to removal as a procedural defect).

The Court reconsidered the August 2 remand order on October 8 ("October 8 order"). The Court concluded it committed clear error by remanding the case on procedural grounds in lieu of an objection by Cooke-Bates raising a procedural defect. First, the Court decided 28 U.S.C. § 1447(d) did not immunize the Court's August 2 remand order from review, because § 1447(d) immunizes only remands based on either a jurisdictional defect or a procedural defect raised by a party within thirty days of removal.² Kircher v. Putnam Funds Trust, 547 U.S. 633, 640 (2006). Since Cooke-Bates made a jurisdictional objection to removal, and the Court remanded on procedural grounds, the Court concluded § 1447(d) did not prohibit it from revisiting the August 2 remand order.

Second, the Court concluded remand was substantively erroneous. In this circuit, a court may not remand a case based on a procedural defect unless a party raises a procedural defect within thirty days of removal. Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 197 (4th Cir. 2008). See 28 U.S.C. § 1447(c).³ The Court's August 2 remand order ran afoul of Ellenburg, because the Court remanded due to a procedural defect in lieu of a procedural objection from Cooke-Bates. Hence the Court concluded the remand order required reversal.

Accordingly, the Court abrogated the August 2 remand order as to Cooke-Bates's claims against the Bayer Defendants. The Court severed Cooke-Bates's claim against Dr. Brooks and remanded it to state court. Cooke-Bates now seeks a certificate permitting appeal of the October 8 remand order under 28 U.S.C. § 1292(b).

II. Analysis

Cooke-Bates requests a certificate to appeal pursuant to 28 U.S.C. § 1292(b), under which a district judge may state in writing that an order "(1) involves a controlling question of law (2) as to which there is substantial ground for difference of opinion and (3) that an immediate appeal from the order may advance the ultimate termination of the litigation[.]" 28 U.S.C. § 1292(b) (1992) (notations added). See Lovelace v. Rockingham MemorialHosp., 299 F.Supp.2d 617, 623 (W.D. Va. 2004). Whether to certify a non-final order for interlocutory review lies within the discretion of the trial court. Terry v. June, 368 F.Supp.2d 538, 539 (W.D. Va. 2005).

The Court begins by emphasizing the gravity of the relief Cooke-Bates seeks. Certification for interlocutory review under § 1292(b) is an "extraordinary remedy" available only in "exceptional situations." Fannin v. CSXTransp., Inc., 1989 WL 42583 at *2 (4th Cir. Apr. 26, 1989). The Supreme Court describes a district court's discretion to certify an appeal under § 1292(b) as "circumscribed" and reserved for "pivotal and debatable" orders. Swint v. Chambers County Comm'n, 514 U.S. 35, 46 (1995). Since § 1292(b) contravenes the final judgment rule, § 1292(b) should be used sparingly and, accordingly, its requirements are strictly construed. Difelice v. U.S. Airways, Inc., 404 F.Supp.2d 907, 908 (E.D. Va. 2005). SeeMyles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989) (refusing to hear an appeal certified under § 1292(b) because petitioner filed his petition with the court of appeals one day late). Because of its circumscribed authority, the Court will certify an issue for appeal only if the Court concludes the issue satisfies all three requirements provided in § 1292(b). KPMGPeatMarwick, L.L.P. v. Estate of Nelco, Ltd., Inc., 250 B.R. 74, 83 (E.D. Va. 2000).

Cooke-Bates does not satisfy all three requirements. She fails to bring to the Court's attention an issue upon which there is substantial ground for disagreement.⁴An issue presents a substantial ground for difference of opinion if courts, as opposed to parties, disagree on a controlling question of law. McDaniel v. Mehfoud, 708 F.Supp. 754, 756 (E.D. Va. 1989). As this Court has explained, when it comes to certifying an issue for interlocutory appeal, "it matters not whether the lower court simply got the law wrong... What matters is whether courts themselves disagree as to what the law is." KPMG Peat Marwick, 250 B.R. at 83. But just any simple disagreement between courts will not merit certification. A ground for dispute is "substantial" where, for example, the controlling circuit has made no comment on conflicting opinions among the various circuits, APCC Services, Inc. v. AT&T Corp., 297 F.Supp.2d 101, 107 (D.D.C. 2003), or where the dispute raises a novel and difficult issue of first impression. Santiago v. Pinello, 647 F.Supp.2d 239, 243 (E.D.N.Y. 2009).

At oral argument, Cooke-Bates presented the Court with three issues she believes deserve certification. First, Cooke-Bates argues the Court lacked subject matter jurisdiction over the case, prohibiting the Court from severing Cooke-Bates's claim against Dr. Brooks and remanding it to state court. In its October 8 order, this Court severed and remanded Cooke-Bates's claim against Dr. Brooks under Rule 21, finding Dr. Brooks an unnecessary party under Rule 19. Though the issue was not presented with complete clarity, Cooke-Bates implies the Court was not allowed to sever Dr. Brooks from this removed case when the parties to the case were incompletely diverse. As a general matter, Rule 21 permits the Court to sever a party from a case in order to achieve complete diversity and establish proper jurisdiction of a civil action. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 691 (4th Cir. 1978) ("[N]on-diverse parties whose presence is not essential under Rule 19 may be dropped to achieve diversity between the plaintiffs and defendants."). Courts do indeed differ on whether it is proper to sever a non-diverse defendant in a diversity case removed from federal court absent a finding of fraudulent joinder or fraudulent misjoinder.⁵ But the disagreement can hardly be characterized as "significant." 12 U.S.C. § 1292(b). The decision to sever a party under Rule 21 is largely within the Court's discretion. Caperton, 585 F.2d at 691. Cooke-Bates provides no authority suggesting an intense dispute among the circuits about the propriety of severing a non-diverse after removal, or an overwhelming consensus among non-controlling circuits that doing so is improper. Nor does she convincingly demonstrate that this issue is so "pivotal and debatable" to merit halting this litigation to petition the Fourth Circuit to settle it. Swint, 514 U.S. at 46. So while Cooke-Bates identifies a source of disagreement among federal courts, she falls short of meeting the exacting standard required in order to earn certification. See Difelice, 404 F.Supp.2d at 908 (noting § 1292(b)'s requirements should be strictly construed).⁶

Able v. Upjohn is less relevant on this point than Cooke-Bates insists. See 829 F.2d 1330 (4th Cir. 1987). There, the defendant removed under 28 U.S.C. § 1331(c), which permits a defendant to remove where a plaintiff brings "separate and independent claim[s]" against non-diverse parties. 829 F.2d at 1332. The Upjohn panel suggested the plaintiff should have pursued certification in order that the Fourth Circuit could decide whether plaintiff's claims were "separate and independent." Id. at 1334-35. Here, Cooke-Bates challenges the Court's decision to sever Dr. Brooks under Rule 21, a matter largely within the Court's discretion. Caperton, 585 F.2d at 691; Weaver v. Marcus, 165 F.2d 862, 864 (4th Cir. 1948).

The second and third issues Cooke-Bates argues merit certification are intertwined. The Court decided Cooke-Bates waived her procedural objection to removal by failing to make a procedural objection within thirty days. The Court also decided Cooke-Bates's failure to make a procedural objection permitted it to reconsider the remand order. Cooke-Bates argues both of these conclusions merit certification.

Substantial ground for disagreement over these issues does not exist. Several courts have concluded that § 1447(d) immunizes a remand order from reconsideration when a...