IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

THERESA A. EVANS, et al., ) 

 ) 

 ) 

 ) 

Plaintiffs, ) 

 ) No. 12 C 5005 

 v. ) 

 ) Senior U.S. District Court Judge 

BRISTOL-MYERS SQUIBB COMPANY, ) George W. Lindberg 

et al., ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER

 Plaintiffs filed this action in the Circuit Court of Cook County, Illinois, alleging claims 

related to overpromotion of the drug known by the brand name Plavix against defendants BristolMyers Squibb Company; Sanofi-Aventis U.S., L.L.C.; Sanofi-Aventis, U.S., Inc.; and SanofiSynthelabo, Inc. Defendants filed a notice of removal on June 22, 2012. Before this court are 

plaintiffs’ motion to remand and defendants’ motion to dismiss. 

 There are 81 total plaintiffs joined in this suit, 77 of which are of diverse citizenship from 

defendants. All four defendants are incorporated in the state of Delaware. One has its principal 

place of business in New York, and the other three have their principal places of business in New 

Jersey. Plaintiffs are from 24 different states. Three plaintiffs are citizens of New York and one 

is a citizen of New Jersey. 

 Defendants assert that the four non-diverse plaintiffs were fraudulently misjoined in an 

effort to defeat diversity jurisdiction. Plaintiffs argue that the doctrine of fraudulent misjoinder 

should not be adopted. The doctrine of fraudulent misjoinder “arose from the Eleventh Circuit's 

decision in Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir.1996), in which the 
12 C 5005 

2

court held that while ‘mere misjoinder’ will not destroy diversity jurisdiction, ‘egregious’ 

misjoinder of claims is tantamount to fraudulent joinder and may consequently destroy 

diversity.” Alegre v. Aguayo, 2007 WL 141891, at *5 (N.D. Ill.). The Seventh Circuit has held 

that courts “should interpret the removal statute narrowly and presume that the plaintiff may 

choose his or her forum.” Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). 

Additionally, “[a]ny doubt regarding jurisdiction should be resolved in favor of the states.” Id.

Four of the plaintiffs are not diverse from the defendants, and the presence of these four nondiverse plaintiffs defeats the complete diversity necessary to remove this case to this court. 28 

U.S.C.A. §1332 (2012); see Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996).

Defendants argue that the doctrine of fraudulent misjoinder should be adopted by this 

court and applied in this case because of the variety of the harms, the citizenship of plaintiffs, 

and the timespan during which the drug Plavix was used. Specifically, defendants argue that 

plaintiffs’ claims do not arise “out of the same transaction, occurrence, or series of transactions 

or occurrences.” Fed. R. Civ. P. 20(a)(1)(A). The Seventh Circuit, however, has held that 

“plaintiffs as master of their complaint may include (or omit) claims or parties in order to 

determine the forum.” Garbie v. DaimlerChrysler Corp. 211 F.3d 407 (7th Cir. 2000). 

Furthermore, the Seventh Circuit has held that “neither [28 U.S.C.] §1332 nor any case of which 

we are aware provides that defendants may discard plaintiffs in order to make controversies 

removable. It is enough that the claims be real, that the parties not be nominal.” Id. at 410. 

In urging this court to adopt the doctrine of fraudulent misjoinder, defendants point out 

that it has been recognized in the Twelfth and Fifth Circuits. However, “the United States Court 

of Appeals for the Seventh Circuit has not had occasion to pass on the validity of the doctrine of 

‘fraudulent misjoinder.’” Rutherford v. Merck & Co., Inc., 428 F. Supp. 2d 842, 851 (S.D. Ill. 
12 C 5005 

3

2006). While there has been no explicit rejection of the doctrine by the Seventh Circuit, “this 

doctrine has been highly criticized and rejected by other courts in the Northern and Southern 

District of Illinois and by courts in other districts of the Seventh Circuit.” Livingston v. Hoffman 

La-Roche, Inc., 2009 WL 2448804, at *8 (N.D. Ill.). “Whether viable state-law claims have been 

misjoined—even ‘egregiously’ misjoined—is a matter to be resolved by a state court. Nothing in 

the jurisprudence of the Supreme Court of the United States regarding fraudulent joinder 

suggests that the joinder of non-fraudulent claims is a question that implicates the subject matter 

jurisdiction of a federal court.” Rutherford v. Merck & Co., Inc., 428 F. Supp. at 851; see Wolf v. 

Kennelly, 540 F.Supp.2d 955, 962 (N.D.Ill. 2008)(“[I]t is the state court, and not this court, who 

should determine whether misjoinder exists here.”). 

The doctrine has been regarded by courts within the Southern District of Illinois as “an 

improper expansion of the scope of federal diversity jurisdiction by the federal courts.” 

Rutherford v. Merck & Co., 428 F.Supp.2d at 852; see Robinson v. Ortho-McNeil Pharm., Inc., 

533 F.Supp.2d 838, 842 (S.D.Ill. 2008) (declining to adopt the doctrine on the basis that it is a 

judicial innovation that enlarges the scope of federal jurisdiction). Absent clear legislative 

direction or binding judicial guidance, and due to the current “muddled state of fraudulent 

misjoinder jurisprudence,” Alegre v. Aguayo, 2007 WL 141891, at *5-6 (N.D.Ill.), this court also 

declines to adopt the doctrine of fraudulent misjoinder. Defendants do not argue that any of the 

joined claims is fraudulent, and this court concurs with other courts in this circuit that the matter 

presented is not a jurisdictional one for this court to resolve. Accordingly, this case will be 

remanded. 

Having granted plaintiffs’ motion to remand, this court need not rule on defendants’ 

motion to dismiss. 
12 C 5005 

4

ORDERED: Plaintiffs’ motion to remand [28] is granted. This action is remanded to the 

Circuit Court of Cook County, Illinois. 

ENTER: 

_____________________________ 

 GEORGE W. LINDBERG 

 Senior U.S. District Judge 

DATED: October 16, 2012