Defendants successfully argued "fraudulent joinder" in
Bahalim v. Ferring Pharmaceuticals, Inc., winning
dismissal of the case in its entirety.1 The case was
decided on Plaintiffs' motion to remand and Defendants'
motions to dismiss after Defendant Ferring Pharmaceuticals removed
the suit to federal court based on diversity jurisdiction.
The court rejected Plaintiffs' argument that the forum
defendant rule applied and ultimately dismissed the case.
Ferring manufactures and distributes Bravelle, a drug designed
to treat infertility in women. Plaintiffs, who were citizens
of Texas and Utah, sued Ferring and Stericycle in Illinois state
court. They alleged that Ferring recalled multiple lots of
the drug that did not meet potency specifications and that
Stericycle administered the recall. Plaintiffs further
alleged that they consumed Bravelle from the recalled lots and
asserted claims based on negligence, strict liability, product
liability, and express and implied warranties.
Ferring removed the case to federal court based on complete
diversity of citizenship. Plaintiffs argued in a motion to
remand that removal was improper under the forum defendant rule,
which prohibits removal premised on diversity in cases where at
least one defendant is a citizen of the forum state. Although
Stericycle was a citizen of the forum state Illinois, Ferring
argued Plaintiffs had fraudulently joined Stericycle, and therefore
removal was proper.
Fraudulent Joinder Doctrine
To establish fraudulent joinder, a defendant must prove that the
plaintiff cannot establish a cause of action against the forum
state defendant after resolving all issues of fact and law in favor
of the plaintiff. The court considered the policy interests
articulated in Morris v. Nuzzo, a Seventh Circuit opinion
that considered fraudulent joinder in the context of the forum
The court concluded that: a plaintiff's interest in
selecting the forum is less compelling when he or she joins a
non-diverse defendant; improperly joining a forum defendant lessens
the weight provided to a plaintiff's choice of forum; and
neither plaintiff here was an Illinois citizen, thus weakening the
court's deference to plaintiffs' choice of forum.
Furthermore, the forum defendant rule only applies where a resident
defendant is properly joined and served—but a fraudulently
joined forum defendant is not a properly joined
defendant. Therefore, the court concluded that the interest
in confining federal jurisdiction to its appropriate statutory
limits weighed in favor of Defendants.
Finally, the court determined that Plaintiffs could not maintain
a failure to warn or negligence claim against Stericycle, and had
improperly joined Stericycle for the sole purpose of avoiding
removal to federal court. In support of its conclusion, the
court noted that Stericycle did not manufacture, promote,
distribute, or sell Bravelle. Therefore, Plaintiffs could not
bring a product liability failure to warn claim against Stericycle
under the applicable state laws. Plaintiffs' negligence
claims against Stericycle were similarly without merit.
Having concluded that the fraudulent joinder doctrine applied
and that Plaintiffs' claims against Stericycle had no chance of
success, the court granted Stericycle's motion to
dismiss. The court also granted Ferring's motion to
dismiss for lack of personal jurisdiction, holding that Ferring did
not have sufficient minimum contacts in Illinois to establish
The fraudulent joinder doctrine is not commonly raised and may
often be overlooked as a litigation tool for defendants.
Although applicable only in specific circumstances,
Bahalim proves that it is worth asserting in appropriate
1. Bahalim v. Ferring Pharmaceuticals, Inc.,
Case No. 16 C 8335, 2017 WL 118418 (N.D. Ill. Jan. 12,
2. Morris v. Nuzzo, 718 F.3d 660 (7th Cir.
Because of the generality of this update, the information
provided herein may not be applicable in all situations and should
not be acted upon without specific legal advice based on particular
On February 22, 2017, President Donald Trump's administration issued a two-page "Dear Colleague" letter that formally rescinded the Obama administration's interpretation of transgender student rights as an extension of Title IX.
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