United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
19, 2017, Defendant Stryker Corporation
(“Stryker”) removed this matter to this Court
from Milwaukee County Circuit Court. (Docket #1). In its
notice of removal, Stryker invoked the Court's diversity
jurisdiction. Id. at 1. Though the parties appear
non-diverse on the face of the complaint, Stryker maintains
that certain parties were fraudulently joined to defeat
diversity, and others should be realigned as plaintiffs.
Id. at 2-8. On July 26, 2017, Defendant Miles W.
Green (“Green”), a former Stryker employee who is
represented by the same counsel, filed a motion to dismiss
himself from this action for Plaintiffs' failure to state
any viable claims against him. (Docket #6). Stryker further
requests that Defendant Sentry Insurance, A Mutual Company
(“Sentry”) be realigned as a plaintiff in this
matter. (Docket #25 at 7-10).
August 10, 2017, Plaintiffs timely filed a motion to remand
this action to state court. (Docket #17); 28 U.S.C. §
1447(c). Stryker responded to that motion, and replied in
support of the motion to dismiss, on August 31, 2017. (Docket
#25). On September 14, 2017, Plaintiffs submitted a reply in
favor of their motion to remand. (Docket #29). Though the
issues raised by both motions are intertwined, because the
remand question goes to the Court's jurisdiction,
Plaintiffs' motion must be addressed first.
material facts are undisputed. They are drawn from
Plaintiffs' complaint, (Docket #1-1), and Green's
affidavit, (Docket #1-3). Plaintiffs, Green, Sentry, and
Defendant Aurora Health Care Metro, Inc.
(“Aurora”) are all citizens of Wisconsin, while
Stryker is a citizen of Michigan. On May 11, 2016, Plaintiff
Mary Kasal (“Mary”) was employed by Aurora. While
working at Aurora-owned St. Luke's Hospital, Mary was
injured when a piece of equipment called a
“Navigator” tipped over onto her. Plaintiffs
allege that the tipping was caused by the failure of one or
more of the casters on which the Navigator sat. They further
allege that the Navigator was manufactured and owned by
Stryker and leased to Aurora at the time of Mary's
injury. The incident caused damages to Mary in the form of
personal injuries and lost wages, and to Plaintiff George
Kasal in the form of loss of Mary's society and
assert three causes of action. The first is for negligence
against Stryker and Green. Plaintiffs include Green in this
claim based on their allegation that he “performed and
oversaw service and maintenance of Stryker machinery at
Aurora, ” presumably to include the Navigator. (Docket
#1-1 at 5). In his affidavit, Green maintains that he was
merely a sales representative for Stryker,
“interfac[ing] with hospital and medical personnel to
sell and lease Stryker equipment [and] support[ing] surgeons
and their staff in using Stryker equipment during a
case.” (Docket #1-3 at 2). Green avers that he was not
responsible for maintenance of any Stryker equipment,
including the Navigator; that duty was laid on a different
department within Stryker.
second cause of action is against Stryker alone for products
liability, namely producing the Navigator with defective
casters. Plaintiffs' final claim is stated against Sentry
and Aurora for failing to cooperate in the prosecution of her
tort claims herein, thus extinguishing their right to
subrogation (both parties had provided worker's
compensation benefits to Mary).
noted above, Plaintiffs have asked the Court to remand this
action to state court because the parties are non-diverse.
(Docket #18 at 1). This is apparent on the face of their
complaint; Plaintiffs, Green, and Sentry are all citizens of
Wisconsin, while Stryker is from Michigan. In an attempt to
remain in federal court, Stryker argues that neither
Green's nor Sentry's presence actually undermines
diversity in this case, raising separate arguments as to
each. The Court begins with Green.
asserts that Green has been fraudulently joined in this
action to defeat diversity jurisdiction. The fraudulent
joinder doctrine is an exception to the requirement of
complete diversity. Morris v. Nuzzo, 718 F.3d 660,
666 (7th Cir. 2013). The doctrine provides that “an
out-of-state defendant's right of removal premised on
diversity cannot be defeated by joinder of a nondiverse
defendant against whom the plaintiff's claim has no
chance of success.” Id. (quotation omitted).
The Seventh Circuit instructs that
[t]o establish fraudulent joinder, a removing defendant must
show that, after resolving all issues of fact and law in
favor of the plaintiff, the plaintiff cannot establish a
cause of action against the in-state defendant. If the
removing defendant can meet this heavy burden, . . . the
federal district court considering removal may disregard, for
jurisdictional purposes, the citizenship of certain
nondiverse defendants, assume jurisdiction over a case,
dismiss the nondiverse defendants, and thereby retain
Id. (citations and quotations omitted). Put another
way, Stryker must show that there is no reasonable
possibility that Plaintiffs can state a cause of action
against Green in state court. Poulos v. Naas Foods,
Inc., 959 F.2d 69, 73 (7th Cir. 1992); Gottlieb v.
Westin Hotel Co., 990 F.2d 323, 327 (7th Cir. 1993).
standard of review applied to fraudulent joinder is even
weaker than that applied to a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). As the Third
Circuit explains, “it is possible that a party is not
fraudulently joined, but that the claim against that party
ultimately is dismissed for failure to state a claim upon
which relief may be granted.” Batoff v. State Farm
Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992) (finding
error when “the district court [converted] its
jurisdictional inquiry into a motion to dismiss”).
Instead, this Court is bound only to determine whether
“the claims against [Green] were not even colorable,
i.e., were wholly insubstantial and
frivolous.” Id. Although Stryker's burden
in asserting fraudulent ...