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Fraudulent Joinder
As most pharmaceutical and medical device products liability cases are based on state law claims, diversity jurisdiction may be the only way to obtain a federal forum. Plaintiffs often join non-diverse defendants, such as local doctors, hospitals, pharmacies, employees and/or sales representatives, in an attempt to defeat diversity jurisdiction and prevent removal of cases to federal court. Defendants — who generally prefer to proceed in federal court — may be able to remove such cases for fraudulent joinder using some of the following arguments.
Fraudulent Joinder
Fraudulent joinder occurs when a plaintiff adds a sham, nominal, or unknown defendant to avoid federal court jurisdiction. A removing defendant attempting to establish fraudulent joinder bears a heavy burden, and must plead a claim of fraudulent joinder with particularity and support the claim by clear and convincing evidence. McLeod v. Cities Serv. Gas Co., 233 F.2d 242, 246 (10th Cir. 1956). In determining whether a nondiverse defendant has been fraudulently joined, the court is not limited to the allegations of the pleadings, but should assess the record as a whole, including any affidavits and depositions submitted by the parties. See AIDS Counseling, 903 F.2d at 1004 (stating that in determining whether an attempted joinder is fraudulent, “the court … may … consider the entire record, and determine the basis of joinder by any means available”) (citation omitted). The standard favors the plaintiff, as the court must resolve “'any disputed questions of fact and ambiguities in the controlling … state law in favor of the non-removing party.” See, e.g., Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994) (quoting Carriere v. Sears Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990)). Courts, however, are not required “blindly to accept whatever plaintiff may say no matter how incredible or how contrary to the overwhelming weight of the evidence.” In re Diet Drugs Prods. Liab. Litig., MDL 1203 (Brown and Price v. American Home Prods. Corp.), Pretrial Order 2710 (E.D. Pa. Jan. 17, 2003).
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