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Case 9:20-md-02924-RLR Document 2824 Entered on FLSD Docket 02/19/2021 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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` MDL NO. 2924
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` 20-MD-2924
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`IN RE: ZANTAC (RANITIDINE)
`PRODUCTS LIABILITY
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`LITIGATION
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` JUDGE ROBIN L. ROSENBERG
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` MAGISTRATE JUDGE BRUCE E. REINHART
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`_______________________________/
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`THIS DOCUMENT RELATES TO:
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`9:20-cv-81056-RLR
`9:20-cv-81059-RLR
`9:20-cv-81061-RLR
`9:20-cv-81065-RLR
`9:20-cv-81068-RLR
`9:20-cv-81072-RLR
`9:20-cv-81073-RLR
`9:20-cv-81074-RLR
`9:20-cv-81075-RLR
`9:20-cv-81077-RLR
`9:20-cv-81078-RLR
`9:20-cv-81087-RLR
`9:20-cv-81089-RLR
`9:20-cv-81090-RLR
`9:20-cv-81092-RLR
`9:20-cv-81093-RLR
`9:20-cv-81094-RLR
`9:20-cv-81096-RLR
`9:20-cv-81097-RLR
`9:20-cv-81098-RLR
`9:20-cv-81099-RLR
`9:20-cv-81104-RLR
`9:20-cv-81105-RLR
`9:20-cv-81106-RLR
`9:20-cv-81107-RLR
`9:20-cv-81109-RLR
`9:20-cv-81110-RLR
`9:20-cv-81112-RLR
`9:20-cv-81118-RLR
`9:20-cv-81119-RLR
`9:20-cv-81121-RLR
`9:20-cv-81122-RLR
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`Case 9:20-md-02924-RLR Document 2824 Entered on FLSD Docket 02/19/2021 Page 2 of 7
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`9:20-cv-81142-RLR
`9:20-cv-81143-RLR
`9:20-cv-81144-RLR
`9:20-cv-81145-RLR
`9:20-cv-81152-RLR
`9:20-cv-81153-RLR
`9:20-cv-81154-RLR
`9:20-cv-81157-RLR
`9:20-cv-81216-RLR
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`ORDER GRANTING THE PLAINTIFFS’ MOTION TO REMAND
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`THIS CAUSE is before the Court on the Plaintiffs’ Motion to Remand [DE 2569]. The
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`Motion has been fully briefed. For the reasons set forth below, the Motion is granted.
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`At the center of this MDL is a molecule known as ranitidine. E.g., 20-81056, DE 1 at 11-
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`13. Ranitidine, commonly known as Zantac, alleviates heartburn. Id. The Plaintiffs allege that
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`ranitidine is defective—they allege that while ranitidine alleviates heartburn, it also promotes the
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`growth of cancer. Id. In this suit, the Plaintiffs name as Defendants the manufacturers and retailers
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`who profited from the sale of ranitidine. See id. at 1-5. The Plaintiffs bring various claims against
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`the Defendants, but the Motion before the Court ultimately turns upon a single claim—a claim for
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`ordinary negligence against the Defendants that operated as retailers and sold ranitidine to the
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`public.
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`The above-referenced cases were filed in California state court. Each Plaintiff is a
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`California citizen. Id. at 4. At least one Defendant1 in each case is also a California citizen—a
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`California-based retailer that sold ranitidine. Id. at 5. Thus, the parties are not diverse and, at least
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`as a facial matter, the cases (which are devoid of federal claims) may not be removed to federal
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`court. E.g., Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005); see also 28 U.S.C. § 1332(a).
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`Nonetheless, the Defendants removed these cases to federal court, citing the doctrine of
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`1 Several different California-based retailers are named as Defendants across the various cases including Safeway,
`Inc., the Vons Companies, Inc., and Kaiser Permanente International. DE 2702 at 7.
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`Case 9:20-md-02924-RLR Document 2824 Entered on FLSD Docket 02/19/2021 Page 3 of 7
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`fraudulent joinder. Under that doctrine, a defendant’s presence in a suit is ignored for the purpose
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`of determining diversity jurisdiction when there is no “possibility that a state court would find the
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`complaint states a cause of action” against the non-diverse defendant. Grancare, LLC v. Thrower
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`ex rel. Mills, 889 F.3d 543, 549 (9th Cir. 2018). Because there is no possibility that the California-
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`based Defendants could be found liable for the sale of ranitidine, the Defendants argue, the
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`California-based Defendants were fraudulently joined. In the absence of the fraudulently-joined
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`Defendants, there would be complete diversity of citizenship—and therefore federal jurisdiction—
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`in this case. Thus, the dispute before the Court centers on whether the California-based Defendants
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`were fraudulently joined.
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`The burden upon a removing party to establish fraudulent joinder is high. To establish
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`fraudulent joinder, “the removing party has the burden of proving by clear and convincing
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`evidence that … there is no possibility the plaintiff can establish a cause of action.” Stillwell v.
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`Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011). Doubts about the Court’s jurisdiction over
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`a removed action must be resolved in favor of remand. Univ. of Ala. v. Am. Tobacco Co., 168 F.3d
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`405, 411 (11th Cir. 1999).
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`The claim at issue is ordinary negligence. The Defendants contend that the California-
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`based Defendants were fraudulently joined because (i) those Defendants are all retailers and (ii)
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`under California law, a retailer cannot be negligent for the ordinary sale of ranitidine because (iii)
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`a retailer has no duty to detect defectively-designed or defectively-manufactured drugs. For
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`authority, the Defendants rely upon a single, eighty-year-old case decided in 1941, Sears Robuck
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`& Co. v. Marhenke, 121 F.2d 598, 600 (9th Cir. 1941) (applying California law). In Sears, the
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`Ninth Circuit stated that “a dealer who purchases and sells an article in common and general use,
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`in the usual course of trade, without knowledge of its dangerous qualities is not under duty to
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`Case 9:20-md-02924-RLR Document 2824 Entered on FLSD Docket 02/19/2021 Page 4 of 7
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`exercise ordinary care to discover whether it is dangerous or not.” Id. The Defendants analogize
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`the instant case to Sears, arguing that the retailers had no duty to discover whether ranitidine was
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`a defective molecule and, as a result, cannot be held liable for negligence under California law.
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`Sears has no application to the instant case because the Defendants’ position
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`mischaracterizes the Plaintiffs’ negligence claim. It is not the Plaintiffs’ position, as the
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`Defendants contend, that the Defendants should be held liable for “merely stock[ing]” ranitidine.
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`DE 2702 at 11. Similarly, the Court cannot assume that the Plaintiffs’ case is limited to the
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`contention that the retailers were negligent because they failed to investigate the ranitidine
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`molecule. Instead, under the doctrine of fraudulent joinder, the Court must decide whether the
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`Defendants have established, through clear and convincing evidence, that a negligence claim is
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`impossible. Construing inferences in favor of the Plaintiffs as the Court must, the Plaintiffs have
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`alleged that the Defendants had polices to store ranitidine and the Court may reasonably infer that
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`such a policy would include storing ranitidine according to the temperature requirements on the
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`ranitidine drug’s label; the Plaintiffs have alleged that the Defendants violated that policy:
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`“Defendants failed to adhere to and/or follow its established practices and procedures in storing
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`Ranitidine-Containing Drugs supplied to Plaintiff.” E.g., 20-81056, DE 1-1 at 64.2 Another
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`reasonable inference is that the Defendants would have known that it is important to store a drug
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`in accordance with the temperature requirements on the drug’s label. The Plaintiffs have alleged
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`2 It is certainly true that the Plaintiffs could have alleged with greater clarity that ranitidine was stored at temperatures
`that exceeded the federally-approved temperature range on the ranitidine label. This was a subject the Court focused
`on in a prior dismissal of the Plaintiffs’ negligence claims in an earlier master pleading. DE 2513 at 34-39. The
`Plaintiffs recently clarified in an amended master pleading that it is indeed their position that ranitidine was stored by
`retailers at a temperature that exceeded the temperature range required on the ranitidine label. DE 2759 at 441 (“Upon
`information and belief, Retailer and Distributor Defendants systematically exposed ranitidine to excessive levels of
`heat and humidity that violated the instructions on the products’ labels.”). In any event, on a motion to remand federal
`pleading standards do not apply to the Plaintiffs’ Complaints—state pleading standards do—and under California
`pleading standards, “it is sufficient to allege that an act was negligently done by a defendant and that it caused damage
`to plaintiff.” Rannard v. Lockheed Aircraft Corp., 157 P.2d 1, 4 (Cal. 1945); Stillwell, 663 F.3d at 1334.
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`Case 9:20-md-02924-RLR Document 2824 Entered on FLSD Docket 02/19/2021 Page 5 of 7
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`that if ranitidine is stored at hot temperatures, this can lead to a break down in the ranitidine
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`molecule which in turn can cause cancer. Id. at 39-42. It is therefore the Plaintiffs’ allegation that
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`the Defendants were actively negligent in their storage of the ranitidine molecule and that the
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`Defendants caused the injury the Plaintiffs received. This stands in stark contrast to Sears.
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`In Sears, the defect at issue was only detectable via expert testimony, and there was no
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`allegation that the retailer-defendant actively did anything improper. See Sears, 121 F.3d at 600.
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`Stated simply, if the ranitidine label required storage at 76 degrees,3 and if a Defendant stored the
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`ranitidine at 77 degrees, the Defendants have provided no authority for the proposition that it would
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`be impossible for the Plaintiffs to bring a negligence claim. C.f. Cabral v. Ralphs Grocery Co.,
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`248 P.3d 1170, 1174 (Cal. 2011) (“The general rule in California is … each person has a duty to
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`use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the
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`circumstances.”). Further, the Defendants have provided no authority for the proposition that the
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`duty to exercise ordinary care in California does not include following the temperature storage
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`requirements on a drug’s label. Indeed, the Court has already concluded, in a prior order of
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`dismissal, that it may not be impossible for the Plaintiffs to plead such a claim. DE 2513 at 35
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`(“With respect to the heating theory—that the Defendants should be held liable for storing
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`ranitidine at an elevated temperature prohibited by both federal law and state law—the Plaintiffs
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`have leave in an amended complaint to plead this theory because, at this juncture, the Court is not
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`prepared to conclude it would be futile for the Plaintiffs to so plead.”).
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`With respect to the Defendants’ heavy burden to establish impossibility, even conclusory
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`allegations in a complaint are sufficient for a Plaintiff to survive a fraudulent joinder challenge.
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`Stillwell, 663 F.3d at 1334. All that is necessary is that there is “even a possibility” that a state
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`3 See DE 2759 at 441.
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`Case 9:20-md-02924-RLR Document 2824 Entered on FLSD Docket 02/19/2021 Page 6 of 7
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`court would sustain a claim. Id. If a California-based retailer stored ranitidine at temperatures
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`prohibited by the drug’s label, there is at least a possibility that a state court would sustain the
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`Plaintiffs’ negligence claims. The burden was upon the Defendants to clearly and convincingly
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`persuade the Court otherwise. This the Defendants have not done. Doubts about jurisdiction must
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`be construed in favor of remand. For all of these reasons, the Plaintiffs’ Motion is granted.4
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`The Court addresses one final matter. In the alternative to remand, the Defendants request
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`that the claims against the California-based retailer-Defendants be severed from the diverse
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`Defendants under Rule 21, and that only the severed claims be remanded to state court. Once
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`those claims are severed and remanded, the Defendants contend, the Court will have diversity
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`jurisdiction over the remaining, non-served claims. Putting aside that the Defendants have
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`requested this affirmative relief in a response in lieu of a motion, this request is inapposite with
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`caselaw. Removal was improper in this case—the Court lacked jurisdiction over the Plaintiffs’
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`Complaints at the time they were filed in state court—and, in this context, courts in this District
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`“decline[] the invitation to rewrite [a] Plaintiff’s complaint in order to manufacture federal
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`jurisdiction.” Gonzalez v. J.C. Penney Corp., No. 05-CV-22254, 2005 WL 5304795, at *3 (S.D.
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`Fla. Nov. 7, 2005). “Federal courts have frowned on using the Rule 21 severance vehicle to
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`conjure removal jurisdiction that would otherwise be absent.” Brown v. Endo Pharms, Inc., 38 F.
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`Supp. 3d 1312, 1326 (S.D. Ala. 2014) (collecting cases in support of the proposition). “It would
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`be an inappropriate extension of Rule 21 to use it to contort the pleadings of a lawsuit merely to
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`confer federal jurisdiction.” Zee Med. Distrib. Ass’n, Inc. v. Zee Med., Inc., 23 F. Supp. 2d 1151,
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`1157 (N.D. Cal. 1998). When a court lacks jurisdiction over a case in the first instance, invoking
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`Rule 21 to manufacture jurisdiction leads to “‘confound[ing] circular logic’ by which a removing
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`4 The Court need not reach the viability of the Plaintiffs’ other claims, such as strict liability claims.
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`Case 9:20-md-02924-RLR Document 2824 Entered on FLSD Docket 02/19/2021 Page 7 of 7
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`defendant asks the court to act without jurisdiction as a means to create jurisdiction.” Hampton v.
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`Insys Therapeutics, Inc., 319 F. Supp. 3d 1204, 1219 (D. Nev. 2018) (quoting Lopez v. Pfeffer,
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`No. 13-CV-03341, 2013 WL 5367723, at *5 (N.D. Cal. Sept. 25, 2013)). In support of their
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`request, the Defendants cite to cases where a court severed and remanded claims in part to state
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`court, but the common theme in the Defendants’ cases, such as M.W. v. Ford Motor Co., No. 14-
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`CV-3132, 2015 WL 1311029 (M.D. Fla. Mar. 24, 2015) and Stone v. Zimmer, Inc., No. 08-CV-
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`80252, 2009 WL 1809990 (S.D. Fla. June 25, 2009), is that severance is appropriate when a
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`plaintiff engages in fraudulent joinder. But the Court has already concluded that the Plaintiffs did
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`not engage in fraudulent joinder. Consistent with the authority cited by the Court above, the Court
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`will not sever claims to create federal jurisdiction when no federal jurisdiction previously existed,
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`and the Defendants’ request to sever claims in this specific context is denied.
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`Accordingly, it is ORDERED AND ADJUDGED that the Plaintiffs’ Motion to Remand
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`[DE 2569] is GRANTED. The Plaintiffs shall provide a proposed order to the Court to accomplish
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`the removal of the above-referenced cases to the appropriate state courts within three business days
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`of the date of rendition of this Order. The proposed order shall be in Microsoft Word format and
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`shall be sent to rosenberg@flsd.uscourts.gov.
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`DONE and ORDERED in Chambers, West Palm Beach, Florida, this 19th day of
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`February, 2021.
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`Copies furnished to Counsel of Record
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`_______________________________
`ROBIN L. ROSENBERG
`UNITED STATES DISTRICT JUDGE
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