UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Nicole Kinsey and Sophia Bernal, 

a minor, by her next friend, 

Fernando Bernal, 

Plaintiffs, 

v. 

Sandoz Inc. and Meijer, Inc., 

Defendants. 

________________________________/

Case No. 15-cv-11752 

Hon. Judith E. Levy 

Mag. Judge Elizabeth A. Stafford 

OPINION AND ORDER REMANDING THE CASE TO WAYNE 

COUNTY CIRCUIT COURT FOR LACK OF JURISDICTION 

Plaintiffs Nicole Kinsey and Sophia Bernal, mother and infant 

daughter, brought suit in Michigan state court alleging that defendant 

Sandoz Inc., which manufactured and packaged the allegedly defective 

oral contraceptive Introvale, and defendant Meijer, Inc., which 

distributed Introvale to plaintiff Kinsey, are liable for physical and 

financial harm to plaintiffs resulting from Kinsey’s unwanted 

pregnancy. (See Dkt. 1-2.) Defendant Sandoz removed to this Court 

based on diversity, arguing that defendant Meijer, a non-diverse party, 

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was fraudulently joined, (see Dkt. 1), and each defendant filed a motion 

to dismiss. (See Dkt. 5; Dkt. 6.) For the reasons set forth below, the 

Court lacks subject-matter jurisdiction and the case is remanded to 

state court. 

I. Background 

For the purposes of this opinion and order, the following 

background is drawn from plaintiffs’ complaint. (See Dkt. 1-2.) 

In 2013, plaintiff Kinsey purchased Introvale, an oral 

contraceptive, which was manufactured and packaged by Sandoz and 

distributed by Meijer. (Id. at 3.) The drug was marketed as a thirteen 

week “blister package,” containing one “blister card” for each week, in 

which weeks one through twelve were supposed to contain active tablets 

and week thirteen was supposed to contain inactive placebos. (Id.) But 

Sandoz incorrectly packaged the tablets, and the placebos were placed 

in the week nine blister card. (Id.) Sandoz had previously recalled 

Introvale for making the same mistake the year before. (Id. at 5.) 

Kinsey, who was thirty-nine years old at the time, conceived 

plaintiff Bernal while she was taking Introvale. (Id. at 4.) Shortly 

thereafter, Kinsey received a letter from Meijer informing her that 

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there was a “Class 1 recall of th[e] medication,” and the defect may 

cause an unwanted pregnancy. (Id.) She had already had four 

children, the last of whom was born twelve years previously, and she 

had been deemed a high-risk patient due to serious complications with 

each pregnancy. (Id.) As had happened before, serious complications 

resulted from Kinsey’s pregnancy with Bernal. (Id.) 

Kinsey was hospitalized in January 2014, out of concern that she 

might have a seizure, stroke, or heart attack due to the pregnancy. (Id.

at 4-5.) Her doctor advised delivering the baby as soon as possible. (Id. 

at 5.) Bernal was delivered by emergency caesarean section on January 

21, 2014, at twenty-four weeks, weighing one pound and five ounces. 

(Id.) Because of complications related to her premature birth, Bernal 

was in neo-natal intensive care for approximately six months, and she 

continues to suffer from medical issues. (Id.) 

Plaintiffs bring two claims against defendants. First, plaintiffs 

claim that defendants are liable for negligence and gross negligence. 

(Id. at 6.) Specifically, plaintiffs claim that Sandoz breached its duty to 

manufacture and package Introvale in such a manner that was 

reasonably safe for its intended users and packaged appropriately, 

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Meijer breached its duty to distribute Introvale as approved by the 

Federal Drug Administration, and both breached their duty to notify 

Kinsey of the recall “in the most expedited manner possible.” (Id. at 4-

6.) Second, plaintiffs claim that defendants breached their express and 

implied warranty that Introvale was safe for its intended use, including 

but not limited to preventing unwanted pregnancies. (Id. at 8.) 

Plaintiffs allege that they suffered and continue to suffer 

damages, including pain and suffering, mental anguish and emotional 

distress, hospital and medical bills, loss of income and impaired earning 

capacity, inability to enjoy leisure activities and other pursuits, future 

pain and disability, embarrassment and mortification, and loss of 

household services. (Id. at 7-9.) 

II. Standard 

“Courts must examine subject matter jurisdiction ‘on their own 

initiative.’” Probus v. Charter Commc’ns, LLC, 234 F. App’x 404, 406 

(6th Cir. 2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 

583 (1999)). When a case is removed to federal court under 28 U.S.C. 

§ 1441(b), complete diversity must have existed “both at the time the 

state action [wa]s commenced and at the time the defendant file[d] the 

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petition for removal.” Easley v. Pettibone Mich. Corp., 990 F.2d 905, 

908 (6th Cir. 1993). “When a non-diverse party has been joined as a 

defendant, then in the absence of a substantial federal question the 

removing defendant may avoid remand only by demonstrating that the 

non-diverse party was fraudulently joined.” Jerome-Duncan, Inc. v. 

Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999) (quoting Batoff v. 

State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992)). 

To establish fraudulent joinder, the removing defendant must 

demonstrate that the plaintiff lacks a “colorable cause of action” in the 

relevant state court against the non-diverse defendant. See id. “[T]he 

question is whether there is arguably a reasonable basis for predicting 

that the state law might impose liability on the facts involved.” 

Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994) 

(quotations omitted). “[I]f there is a colorable basis for predicting that a 

plaintiff may recover against non-diverse defendants,” the Court “must 

remand the action to state court.” Coyne ex rel. Ohio v. Am. Tobacco 

Co., 183 F.3d 488, 493 (6th Cir. 1999). “[A]ll disputed questions of fact 

and ambiguities in the controlling . . . state law” must be resolved “in 

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favor of the non[-]removing party.” Id. (quoting Alexander, 13 F.3d at 

949). So too regarding “[a]ll doubts as to the propriety of removal.” Id. 

The standard is “similar to, but more lenient than, the analysis 

applicable to a Rule 12(b)(6) motion to dismiss.” Casias v. Wal-Mart 

Stores, Inc., 695 F.3d 428, 433 (6th Cir. 2012); see Feller v. Medical 

Protective Co., No. 13-cv-14193, 2014 U.S. Dist. LEXIS 13435, at *7 

(E.D. Mich. Feb. 4, 2014) (“[T]he fraudulent joinder inquiry should be 

more deferential than even that given under Rule 12(b)(6).”). And when 

conducting a fraudulent-joinder inquiry, the Court may consider 

“material outside the pleadings for the limited purpose of determining 

whether there are ‘undisputed facts that negate the claim.’” Casias, 695 

F.3d at 433 (quoting Walker v. Philip Morris USA, Inc., 443 F. App’x 

946, 956 (6th Cir. 2011)). 

III. Analysis 

Defendant Meijer argues that it cannot be held liable because it 

“is a mere seller that purchases the Introvale product from Sandoz 

already manufactured and packaged, and dispenses such product to 

patients without opening or inspecting the contents of each package.” 

(See Dkt. 5 at 13.) But there are facts to show that Meijer actively 

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participated in Sandoz’s recall effort. (See, e.g., Dkt. 11-2 at 2.) And 

plaintiffs claim that Meijer breached its duty to notify Kinsey of the 

recall “in the most expedited manner possible.” (See Dkt. 1-2 at 5.) 

Whether that claim is sufficiently pled is not the issue. Rather, the 

relevant issue here is whether plaintiffs state a colorable claim, which 

is a lower threshold. 

Under Michigan law, non-manufacturing sellers are “not liable for 

harm allegedly caused by the product unless . . . [t]he seller failed to 

exercise reasonable care, including breach of any implied warranty, 

with respect to the product and that failure was a proximate cause of 

the person’s injuries,” or “[t]he seller made an express warranty as to 

the product, the product failed to conform to the warranty, and the 

failure to conform to the warranty was a proximate cause of the 

person’s harm.” Mich. Comp. Laws § 600.2947(6). Non-manufacturing 

sellers have “no duty to inspect a product unless the seller has reason to 

know that it is defective or the defect is readily ascertainable.” 

Konstantinov v. Findlay Ford Lincoln Mercury, 619 F. Supp. 2d 326, 

332 (E.D. Mich. 2008). And non-manufacturer sellers have no general 

“continuing duty to repair or recall a product.” Gregory v. Cincinnati 

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Inc., 538 N.W.2d 325, 326 (Mich. 1995); see, e.g., ESTATE OF Qing 

Kong v. A.J. MARSHALL CO., 590 N.W.2d 301, 302 (Mich. Ct. App. 

1998) (no duty to recall the product because distributer took no 

affirmative action to assist in the recall effort). 

Pharmacies, such as Meijer, are “generally not held liable for 

damages resulting from a correctly filled prescription.” Stebbins v. 

Concord Wrigley Drugs, Inc., 416 N.W.2d 381, 387 (Mich. Ct. App. 

1987). For example, “a pharmacist has no duty to warn the patient of 

possible side effects of a prescribed medication where the prescription is 

proper on its face and neither the physician nor the manufacturer has 

required that any warning be given to the patient by the pharmacist.” 

See id. at 387-88. And “there exists no legal duty on the part of a 

pharmacist to monitor and intervene with a customer’s reliance on 

drugs prescribed by a licensed treating physician.” See Adkins v. Mong, 

425 N.W.2d 151, 154 (Mich. Ct. App. 1988). But “[o]nce a duty is 

voluntarily assumed, it must be performed with some degree of skill 

and care.” ESTATE OF Qing Kong, 590 N.W.2d at 302. For example, a 

pharmacy “voluntarily assume[s] a duty of care when it implement[s]” a 

“computer system to monitor its customers[’] medication profiles for 

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adverse drug interactions . . . . and then advertise[s] that this system 

would detect harmful drug interactions for its customers.” See Baker v. 

Arbor Drugs, 544 N.W.2d 727, 731 (1996). 

Here, the facts show that Meijer affirmatively assisted Sandoz 

with the recall. (At the hearing, defendants stated that Meijer 

attempted to call Kinsey on two occasions, in addition to sending the 

notice of recall by first-class mail.) There is thus a colorable claim that 

Meijer took on a duty of care in its recall efforts, which plaintiffs allege 

Meijer breached. Cf. ESTATE OF Qing Kong, 590 N.W.2d at 302. 

Whether Meijer actually had any such duty is not before the Court. 

And it is not clear whether Meijer undertook its efforts voluntarily or 

was obligated to do so by law or regulation. Sandoz, the removing 

party, had the “particularly heavy burden” to “prove fraudulent 

joinder.” Kent State Univ. Bd. of Trs. v. Lexington Ins. Co., 512 F. App’x 

485, 489 (6th Cir. 2013). It failed to meet its burden.1 Because 

plaintiffs have a colorable claim against Meijer, it was not fraudulently 

joined, and the Court lacks subject-matter jurisdiction. 



1 Meijer argues that “[p]laintiffs opted not to move to remand and thus do not 

appear to dispute that Meijer was improperly joined.” (See Dkt. 12 at 2 n.1.) But 

“no plaintiff can ‘create’ diversity jurisdiction by failing to move to remand when it 

is clear that complete diversity does not exist.” Probus, 234 F. App’x at 406. 

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IV. Conclusion 

For the reasons set forth above, this Court lacks subject-matter 

jurisdiction, and this case is remanded to state court. 

IT IS SO ORDERED. 

Dated: December 16, 2015 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on December 16, 2015. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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