United States District Court, S.D. Mississippi, Western Division
ARNOLD E. FELDMAN, M.D., SOUTHWEST MISSISSIPPI ANESTHESIA, P.A., and SOUTHWEST MISSISSIPPI ANESTHESIA, P.A. d/b/a THE FELDMAN INSTITUTE PLAINTIFFS
RITE AID HDQTRS CORP. D/B/A RITE AID PHARMACY; WALGREENS PHARMACY; MISSISSIPPI CVS PHARMACY, LLC D/B/A CVS PHARMACY; FRED'S OF NATCHEZ, INC. D/B/A FRED'S PHARMACY DEFENDANTS
ORDER AND OPINION
Bramlette UNITED STATES DISTRICT JUDGE
cause is before the Court on plaintiffs Arnold E. Feldman,
M.D. (“Dr. Feldman”), Southwest Mississippi
Anesthesia, P.A., and Southwest Mississippi Anesthesia, P.A.,
Inc. d/b/a The Feldman Institute (collectively
“Plaintiffs”)'s Motion to Remand (docket
entry 5). Having considered the motion and responses,
applicable statutory and case law, and being otherwise fully
informed in the premises, the Court finds as follows:
Facts & Procedural History
Arnold Feldman, M.D., is a board-certified anesthesiologist
with chronic pain management practices located in both
Louisiana and Mississippi. Doc. 1-1, ¶ 9. Dr.
Feldman's practice groups include The Feldman Institute
and First Choice Surgery Center, LLC in Louisiana and
Southwest Mississippi Anesthesia Associates located in
Natchez, Mississippi. Id. As of October 14, 2016,
the Louisiana State Board of Medical Examiners suspended Dr.
Feldman's Louisiana medical license for two years.
Id. at ¶ 14. Following his suspension, Dr.
Feldman “made the decision to continue to expand his
practice in Natchez, Mississippi, given that he still
maintains a valid Mississippi medical license and a valid DEA
prescribing license.” Id.
December 9, 2015, the plaintiffs filed a Complaint in the
Chancery Court of Adams County, Mississippi, alleging that
the defendant pharmacies have refused to honor, and placed
undue restrictions on, Dr. Feldman's prescriptions
despite the fact that his Mississippi medical license and DEA
prescribing license remain effective. See Doc. 1-1. The
plaintiffs seek an injunction to prevent the defendant
pharmacies from engaging in this practice, and a declaratory
judgment granting the plaintiffs “specific performance
of their agreements with Defendants” regarding Dr.
Feldman's prescriptions. Id.
January 19, 2017, defendant Walgreens Co.
(“Walgreens”) filed a Notice of Removal on the
basis of diversity jurisdiction, claiming that
plaintiffs' claims against the defendant pharmacies have
been fraudulently misjoined. Shortly thereafter on February 1,
2017, Plaintiffs filed their Motion to Remand for lack of
subject matter jurisdiction, citing a lack of diversity
between the parties and an amount in controversy below the
Walgreens, as the removing party, bears the burden of proving
that federal jurisdiction exists and that removal was proper.
Barker v. Hercules Offshore, Inc., 713 F.3d
208, 212 (5th Cir. 2013). When considering motions to remand,
the removal statutes are to be strictly construed against
removal, and all ambiguities or doubts are resolved in favor
of remand. Wilkinson v. Jackson, 294 F.Supp.2d 873,
877 (S.D.Miss. 2003) (citing Willy v. Coastal Corp.,
855 F.2d 1160 (5th Cir. 1988)).
removal of cases from state to federal court is governed by
28 U.S.C. § 1441, which provides that “any civil
action brought in a State court of which the district courts
of the United States have original jurisdiction may be
removed . . . 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). Federal
courts have original diversity jurisdiction over civil
actions between citizens of different states where the amount
in controversy exceeds $75, 000, exclusive interest and
costs. 28 U.S.C. § 1332(a). In moving to remand, the
plaintiffs contend that neither of the jurisdictional
requirements set forth in 28 U.S.C. § 1332(a) has been
Diversity of Citizenship
Court to exercise diversity jurisdiction under 28 U.S.C.
§ 1332(a), complete diversity of citizenship must exist
between the parties. Complete diversity “requires that
all persons on one side of the controversy be citizens of
different states than all persons on the other side.”
Vaillancourt v. PNC Bank, Nat. Ass'n, 771 F.3d
843, 847 (5th Cir. 2014). It is undisputed that complete
diversity between the parties is lacking, as multiple
plaintiffs and defendants are alleged to be citizens of
Mississippi. Defendant Walgreens, which is a foreign
corporation with its principal place of business in Illinois,
urges the Court to exercise diversity jurisdiction over the
claims stated against it based on a theory of fraudulent
misjoinder. In its Notice of Removal and Response to the
plaintiffs' motion, Walgreens asks the Court to sever and
remand Plaintiffs' claims against the non-diverse
defendants while retaining jurisdiction over Plaintiffs'
claims against Walgreens. Should the Court choose to sever the
plaintiffs' claims, complete diversity would exist
between Walgreens and the plaintiffs.
doctrine of fraudulent misjoinder was first adopted by
the Eleventh Circuit in Tapscott v. MS Dealer Serv.
Corp., 77 F.3d 1353, 1360 (11th Cir. 1996),
abrogated on other grounds, Cohen v. Office Depot,
Inc., 204 F.3d 1069 (11th Cir. 2000), and later acknowledged
by the Fifth Circuit in In re Benjamin Moore &
Co., 318 F.3d 626, 630-631 (5th Cir. 2002)
(“fraudulent misjoinder of plaintiffs is no more
permissible than fraudulent misjoinder of defendants to
circumvent diversity jurisdiction”). Apart from
mentioning the general principle, the Fifth Circuit has
provided scarce guidance as to how the fraudulent misjoinder
doctrine should be applied in our courts. Nevertheless,
“most district courts within this circuit have taken
the position that the Fifth Circuit has adopted, or at least
appears to have adopted, Tapscott.” Palermo v.
Letourneau Tech., Inc., 542 F.Supp.2d 499, 515
(S.D.Miss. 2008) (collecting cases). When considering the
standard by which fraudulent misjoinder should be judged,
this Court has
...adopt[ed] the fraudlent joinder-like standard for purposes
of deciding the fraudulent misjoinder issue... Removal and
severance will be allowed only if claims were improperly
joined under state law at the action's inception. The
standard also protects both the right of a plaintiff to
choose his own forum and the right of a defendant to remove
to a federal forum when faced with misjoinder in the state
court. As long as there is a reasonable possibility that the
state court would find joinder proper, the plaintiff's
right to a state forum prevails, but if there is no
reasonable possibility that the state court would find
joinder proper, the defendant is entitled to removal and
severance. Under this standard, the lack of a reasonable
possibility that the state court would allow the joinder
renders the claims or parties “fraudulently
Id. at 523-24. Applying the “fraudulent
joinder-like” approach previously adopted by this Court
and others within the Northern and Southern Districts, the
Court considers whether, based on the unique circumstances at
issue, there is a reasonable possibility that a Mississippi
court would find that Plaintiffs' claims against Rite
Aid, CVS, and Fred's pharmacies were properly joined with
their claims against Walgreens. See Id. at 542
F.Supp.2d at 523-24; Hampton v. Frost, 2015 WL
11233043, *1 (S.D.Miss. Sept. 24, 2015); see also Sweeney
v. Sherwin Williams Co.,304 F.Supp.2d 868, 872
(S.D.Miss. 2004) (“mere misjoinder is insufficient to
raise to the level of fraudulent misjoinder . . . misjoinder
must represent totally unsupported, or ‘egregious'
misjoinder”); Walton v. Tower Loan of Miss.,338 F.Supp.2d 691, 697 (N.D. Miss. 2004) (noting that
fraudulent misjoinder ...