Goul v. Combe Inc.

VICKI GOUL Personal Representative of the Estate of Kevin Goul, Deceased, Plaintiff, v. COMBE INCORPORATED, ANONYMOUS PROVIDER 1, ANONYMOUS PROVIDER 2, ANONYMOUS PROVIDER 3, ANONYMOUS PROVIDER 4, ANONYMOUS PROVIDER 5, ANONYMOUS PROVIDER 6, ANONYMOUS PROVIDER 7, ANONYMOUS PROVIDER 8, ANONYMOUS PROVIDER 9, ANONYMOUS PROVIDER 10, ANONYMOUS PROVIDER 11, ANONYMOUS PROVIDER 12, ANONYMOUS PROVIDER 13, ANONYMOUS PROVIDER 14, ANONYMOUS PROVIDER 15, ANONYMOUS PROVIDER 16, ANONYMOUS PROVIDER 17, ANONYMOUS PROVIDER 18, ANONYMOUS PROVIDER 19, ANONYMOUS PROVIDER 20, ANONYMOUS PROVIDER 21, ANONYMOUS PROVIDER 22, ANONYMOUS PROVIDER 23, ANONYMOUS PROVIDER 24, ANONYMOUS PROVIDER 25, and ANONYMOUS PROVIDER 26, Defendants.

No. 1:21-cv-00771-TWP-TAB

United States District Court, S.D. Indiana, Indianapolis Division

August 25, 2021

Ann Marie Waldron

WALDRON TATE BOWEN FUNK SPANDAU LLC

Joseph N. Williams

WILLIAMS & PIATT, LLC

Michael Eugene Simmons

HUME SMITH GEDDES GREEN & SIMMONS

Matthew W. Conner

LEWIS WAGNER, LLP

Patricia B. Freije

KATZ KORIN CUNNINGHAM, P.C.

Mallory Reider Inselberg

EICHHORN & EICHHORN LLP

Caitlin Rose Jared

SCHULTZ & POGUE LLP

Elizabeth Hill Knotts

HILL KNOTTS & GOLDMAN, LLC

Tyler Scott Lemen

DREWRY SIMMONS VORNEHM, LLP

Benjamin J. Morrical

FROST BROWN TODD LLC

Nicholas C. Pappas

FROST BROWN TODD LLC

Jon M. Pinnick

SCHULTZ & POGUE LLP

Elizabeth Ann Schuerman

PAGANELLI LAW GROUP

Stacy F. Thompson

PITCHER THOMPSON, P.C.

Albert Barclay Wong

DREWRY SIMMONS VORNEHM, LLP

Elliott I. Pinkie

PINKIE LAW LLC

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND

Hon. Tanya Walton Pratt, Chief Judge United States District Court

This matter is before the Court on a Motion to Remand filed pursuant to 28 U.S.C. § 1447 by Plaintiff Vicki Goul ("the Estate"), personal representative of the Estate of Kevin Goul ("the Decedent") (Filing No. 9), following the filing of a Notice of Removal based on diversity jurisdiction by Defendant Combe Incorporated ("Combe") (Filing No. 1). Combe subsequently filed a Motion to Dismiss for failure to state a claim (Filing No. 12). For the following reasons, the Court grants the Estate's Motion to Remand and denies as moot Combe's Motion to Dismiss.

I. BACKGROUND

On or around April 1, 2019, the Decedent purchased and used Just for Men hair dye (the "JFM hair dye"), which is sold and distributed by Combe (Filing No. 1-1 at 7). Combe is a Delaware corporation with a principal place of business in New York (Filing No. 1-2 at 1). After using the JFM hair dye, the Decedent "developed contact dermatitis, irritation and suffered visible, adverse reactions to his skin in, around and near the areas of application on his person." (Filing No. 1-1 at 10.)

As a result of the injuries allegedly caused by the JFM hair dye, the Decedent sought and received medical attention from twenty-six healthcare providers ("Anonymous Providers"). Id. at 12. On April 21, 2019, the Decedent died intestate while residing in Indianapolis, Indiana. Id. at 7. On August 26, 2020, the Decedent's spouse, Vicki Goul, was appointed Special Personal Representative of the Decedent's estate. Id.

On March 15, 2021, the Estate filed a wrongful death suit in Marion County Superior Court against the Anonymous Providers and simultaneously brought a products liability claim against Combe. Id. at 6. On March 30, 2021, Combe filed a Notice of Removal, and the case was removed to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 (Filing No. 1). On April 2, 2021, the Estate filed a Motion to Remand pursuant to 28 U.S.C. § 1447 (Filing No. 9). Combe filed its response on April 4, 2021 (Filing No. 18).

II. LEGAL STANDARD

"[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, ^[1] may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332(a)(1).

"A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal ...." 28 U.S.C. § 1446(a).

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.

28 U.S.C. § 1447(c).

"The party seeking removal has the burden of establishing federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court." Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009).

Section 1332 requires complete diversity, meaning that no plaintiff may be a citizen of the same state as any defendant. Hart v. FedEx Ground Package Sys., 457 F.3d 675, 676 (7th Cir. 2006). If any plaintiff and any defendant are citizens of the same state, complete diversity is destroyed, and the federal court lacks subject matter jurisdiction under 28 U.S.C. § 1332. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373-75 (1978). The existence of subject matter jurisdiction is a threshold issue, and any removed case lacking a proper basis for subject matter jurisdiction must be remanded. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 96 (1998).

III. DISCUSSION

In the Motion to Remand, the Estate asserts that this Court "has no power" to adjudicate the claims in this case because there is not complete diversity between the parties (Filing No. 9 at 1). The Estate contends that because this suit involves an Indiana citizen bringing medical malpractice allegations against more than twenty Indiana citizens who were required to be sued anonymously, "[d]iversity jurisdiction does not exist," the "case must be remanded," and the Court should "order the payment of [the Estate's] fees and costs under 28 U.S.C. § 1447(c)." Id. at 1-2; Filing No. 21 at 5. Combe responds that Motion to Remand must be denied because the "residence of anonymous medical defendants named under Indiana Medical Malpractice Act . . . is disregarded for the purposes of diversity jurisdiction." (Filing No. 18 at 1.) The Court will address these contentions in turn.

A. The Indiana Medical Malpractice Act

The Indiana Medical Malpractice Act (the "MMA") was "[e]nacted in 1975 in an effort to reduce the soaring costs of malpractice insurance." Jones v. Griffith, 870 F.2d 1363, 1364 (7th Cir. 1989) (citations omitted). Generally, the MMA requires that prior to commencement of a medical malpractice action against a health care provider in an Indiana trial court, "the party's proposed complaint must first be presented to a medical review panel . . ., and the panel must render an opinion as to whether the defendant failed to act within the appropriate standard of care." Lorenz v. Anonymous Physician #£1, 51 N.E.3d 391, 395-96 (Ind.Ct.App. 2016); see also Ind. Code §§ 34-18-8-4, -10-22.

In submitting a proposed complaint to the medical review panel, a physician-defendant's identity must be kept anonymous until the panel renders a decision. See Ind. Code § 34-18-8-7; see also Kho v. Pennington, 875 N.E.2d 208, 209 (Ind. 2007) ("For limited purposes, the Act permits such actions to be contemporaneously filed in court, provided that the complaint contains no information that would allow the defendant provider(s) to be identified.").

Here, the defendant anonymity provision of the MMA is the basis for the identities of Anonymous Providers remaining undisclosed. However, pursuant to the filings the parties have made to the Court-namely, the Corporate Disclosure Statement of certain Anonymous Providers-it is apparent that at least two^[2] of the providers are Indiana citizens (see generally Filing No. 20 at 1; Filing No. 23 at 1). The Estate asserts that "more than 20" of the twenty-six Anonymous Providers are Indiana citizens which is undisputed by Combe (Filing No. 9 at 1).

B. Fictitious Defendants vs. Anonymous Defendants

28 U.S.C. § 1441(b) states that, for the purpose of determining whether a civil action is removable based on diversity jurisdiction, "the citizenship of defendants sued under fictitious names shall be disregarded." 28 U.S.C. § 1441.

According to Combe, the Estate's Complaint names "26 fictitious 'anonymous provider' defendants" whose citizenship should be disregarded in the removal analysis (see Filing No. 1 at 1). Combe cites § 1441(b) and Thornburg v. Stryker Corp. to contend that the Court "may not consider the anonymous Indiana Defendants' citizenship to assess the existence of diversity jurisdiction," see id., No. 1:05-cv-1378-RLY-TAB, 2006 WL 211952, at *2 (S.D. Ind. Jan 27, 2006). In Thornburg, the motion to remand was denied when that court concluded that the plaintiff could not use the citizenship of medical malpractice defendants-who remained anonymous pursuant to the MMA-to overcome removal based on diversity jurisdiction. Thornburg, 2006 WL 211952, at *1.

The Estate replies that the decision in Thornburg has been rejected in this judicial district and this Court has already "addressed the interplay between diversity jurisdiction and the [MMA's] anonymity requirement." (Filing No. 9 at 2.) Citing Johnson v....