Ropp v. Stryker Corp.

Jay Ropp, Plaintiff,

v.Stryker Corp., et al., Defendants.

1:10-cv-0008-JMS-MJD

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

Dated: January 26, 2011

ORDER REMANDING ACTION TO STATE COURT

Currently pending before the Court is Defendant Stryker Corporation and Stryker Biotech, LLC's (collectively, "Stryker") Motion to Sever and Dismiss Plaintiffs' claims against Defendants Ortho NorthEast, P.C. and Dr. John C. Pritchard (collectively, the "anonymous defendants" or "Ortho and Pritchard"). [Dkt. 46.] For the reasons detailed herein, the Court denies Stryker's motion and remands this action to state court.

Background

Plaintiff Jay Ropp filed this action in state court against Stryker in December 2009, alleging claims for product liability, negligence, and breach of express and implied warranties regarding a device surgically implanted in Mr. Ropp in December 2007. [Dkt. 1-3.] Stryker removed the case to this Court, alleging that diversity jurisdiction existed. [Dkt. 1 at 2.]

In July 2010, Mr. Ropp moved to amend his complaint to add a claim for medical malpractice against "John Doe, M.D." and Dr. Doe's employer, "XYZ, P.C., " alleging that Dr. Doe negligently implanted the Stryker device during Mr. Ropp's surgery. [Dkts. 27 1-2; 27-5 at 1-2, 6.] In his Motion to Amend, Mr. Ropp asserted that he had filed a medical malpractice complaint with the Indiana Department of Insurance against Dr. Doe and XYZ at the time he filed this action. [Dkt. 27 at 2.] Mr. Ropp's Amended Complaint gave the newly-added defendants pseudonyms because pursuant to Indiana Code § 34-18-8-7, "[a]n action cannot be filed in courtagainst qualified medical care providers in their own names until a Medical Review Panel issues an opinion." [Dkt. 27 at 2.]

Although Mr. Ropp felt compelled to sue Dr. Doe and XYZ anonymously pursuant to Indiana Code § 34-18-8-7, he asserted that Dr. Doe and XYZ had sufficient Indiana connections to destroy diversity jurisdiction. [Dkt. 27 at 3.] Consequently, Mr. Ropp asked this Court to remand his case to state court. Stryker did not object to Mr. Ropp's request to file an Amended Complaint but did object to the earlier request to remand, arguing that 28 U.S.C. § 1441(a) requires the Court to ignore the citizenship of fictitiously-named defendants for purposes of determining diversity. [Dkt. 28 at 2.] On reply, Mr. Ropp conceded that Stryker's objection concerning his remand request "appears to be well taken." [Dkt. 29 at 1.] Mr. Ropp requested a stay of discovery, however, to permit the medical review panel to issue an opinion regarding Dr. Doe and XYZ and to ensure that a pending criminal case against Stryker in the District of Massachusetts that may implicate discovery in this action could conclude. [Dkt. 29 at 3.]

The Court ultimately granted Mr. Ropp's Motion to Amend to add Dr. Doe and XYZ, denied the request for a stay, and denied Mr. Ropp's request for a remand as moot given Mr. Ropp's concession on reply. [Dkt. 35.]

Several months later, because Mr. Ropp is an Indiana citizen and it appeared that the anonymous defendants were also Indiana citizens, the Court issued a show cause order that required the parties to address why this action should not be remanded to state court. The Court cited Seventh Circuit precedent prohibiting anonymous defendants in diversity cases and the conflict between Indiana Code § 34-18-8-7 and Federal Rule of Civil Procedure 10(a). [Dkt. 41.] In response to that order, Ortho and Pritchard waived their anonymity and confirmed that they are both Indiana citizens that destroy diversity jurisdiction. [Dkts. 42, 43.]

After Ortho and Pritchard waived their anonymity, Stryker filed a Motion to Sever and Dismiss Mr. Ropp's claims against Ortho and Pritchard from his claims against Stryker. [Dkt. 46.] Stryker admits that "this Court lacks jurisdiction to preside over the medical malpractice claims against [Ortho and Pritchard]." [Dkt. 47 at 1]. Stryker asks the Court to sever those claims from this case and to retain jurisdiction over Mr. Ropp's claims against Stryker because "Stryker should not now be required to return to state court because plaintiff unsuccessfully attempted to consolidate his claims against Stryker and [Ortho and Pritchard] in one proceeding." [Dkt. 47 at 6.]

Mr. Ropp objects to Stryker's request to sever and dismiss his claims against Ortho and Pritchard, arguing that they are indispensible parties that cannot be severed and dismissed from the case. [Dkt. 50 at 10.] Therefore, Mr. Ropp asks the Court to remand this matter in its entirety to Marion Superior Court. [Id.]

Ortho and Pritchard did not respond to Stryker's Motion to Sever. In their response to the show cause order, however, Ortho and Pritchard contended that their waiver of anonymity "rendered any discussion with respect to diversity of citizenship and any alleged exceptions moot." [Dkt. 49 at 4.] For that reason, they ask the Court to dismiss them from this action. [Id.]

DISCUSSION

I. Show Cause Order

It is unclear whether this Court could have retained jurisdiction over Mr. Ropp's claims if Ortho and Pritchard had not waived their anonymity, which is why the Court issued the show cause order described above. [Dkt. 41; but see Thornburg v. Stryker Corp, 2006 U.S. Dist. LEXIS 3452 *2-*6 (S.D. Ind. 2006) (Baker, J.), approved by 2006 U.S. Dist. LEXIS 41836 (S.D. Ind. 2006) (retaining jurisdiction despite fact that defendants were sued anonymously pursuant to Indiana Code § 34-18-8-7 and were citizens of the same state as the respective plaintiffs).]

Ortho and Pritchard's decision to waive anonymity, however, renders the jurisdictional issues raised in the show cause order moot. Therefore, the Court discharges the show cause order and proceeds to the merits of Stryker's motion.

II. Effect of Ortho and Pritchard Waiving Their Anonymity

There is no dispute that Stryker properly removed this case to federal court after Mr. Ropp sued Stryker in state court. Following that removal, however, Mr. Ropp sought to join Ortho and Pritchard under anonymous monikers. [Dkt. 27.] Mr. Ropp asserted that joinder would destroy diversity jurisdiction and requested that the case be remanded to state court. [Id. at 3.] Stryker "d[id] not oppose the amendment" but argued that Ortho and Pritchard's citizenship was irrelevant and that Mr. Ropp's remand request should be denied. [Dkt. 28 at 2.] Mr. Ropp withdrew his remand request on reply, and the Court granted Mr. Ropp's motion to file an amended complaint asserting claims against Ortho and Pritchard. [Dkt. 35.] The parties do not ask the Court to reconsider its decision to allow Mr. Ropp to join Ortho and Pritchard as defendants. Instead, the parties disagree about what the Court should do now that Ortho and Pritchard have revealed their identity and confirmed that they are Indiana citizens.

Joinder of a nondiverse party after removal destroys subject matter jurisdiction. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759 (7th Cir. 2009). The Court's only two options are either to deny joinder or to permit joinder and remand the action to state court. Id. (citing 28 U.S.C. § 1447(e)). "[T]he district court may not permit joinder of a nondiverse defendant and retain jurisdiction." Schur, 577 F.3d at 759. Presumably, a district court will remand a suit to state court for lack of diversity jurisdiction if a plaintiff amends its complaint to add claims against a non-diverse party. Todd v. Merrell Dow Pharmaceuticals, Inc., 942 F.2d 1173, 1178 (7th Cir. 1991).

Stryker concedes that this Court lacks subject matter jurisdiction over Mr. Ropp's claims against Ortho and Pritchard. [Dkts. 47 at 3; 48 at 5.] Stryker completely ignores the issue of the lack of diversity of citizenship, however, and instead argues that this Court lost jurisdiction over the claims against Ortho and Pritchard (and only those claims) when Ortho and Pritchard waived their anonymity. Stryker emphasizes that Indiana Code § 34-18-8-7 does not contemplate a defendant waiving its anonymity and contends that "Indiana law requires dismissal of the claims against [Ortho and Pritchard]" because the medical review panel hasn't issued its decision yet. [Dkt. 47 at 3-4.] Therefore, Stryker ask this Court to dismiss Mr. Ropp's claims against Ortho and Pritchard and retain jurisdiction over the claims against Stryker. [Dkt. 53 at 7.]

Indiana Code § 34-18-8-7 authorizes a plaintiff to "commence an action in court for malpractice at the same time the claimant's proposed complaint is being considered by the medical review panel." However, the plaintiffs complaint may not contain any information that would allow a third-party to identify the defendant. I.C. § 34-18-8-7(a)(1). The purpose of the anonymity provision is to protect the medical provider's anonymity while panel review is pending because plaintiffs "are often challenged to timely identify which of several health care providers or related entities potentially may share legal responsibility for an alleged medical error" and those providers may later be exonerated through the discovery process. Kho v. Pennington, 875 N.E.2d 208, 214 (Ind. 2007).

The Court disagrees with Stryker that Mr. Ropp cannot pursue his claims against Ortho and Pritchard in court simply because they waived their anonymity. Indiana Code § 34-18-8-7 specifically contemplates a civil action pending in court "at the same time" the matter is being considered by the medical review panel, and Mr. Ropp complied with the statutory requirement not to include any information in his complaint identifying Ortho or Pritchard. Instead, Orthoand Pritchard voluntarily waived their anonymity. Nothing in the statute supports Stryker's assertion that a court loses jurisdiction if a provider voluntarily identifies himself. In fact, if the Court were to agree with Stryker's position, it would incentivize anonymous defendants in medical malpractice cases to voluntarily identify...