UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

IN RE: BIOMET M2A MAGNUM HIP

IMPLANT PRODUCTS LIABILITY

LITIGATION (MDL 2391) 

) 

) 

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CAUSE NOS. 3:14-CV-1434-RLM-CAN

 3:14-CV-1505-RLM-CAN

 3:13-CV-1359-RLM-CAN 

 

OPINION and ORDER 

Plaintiffs Rita Taranto, Griseth DeJesus, and Chanton Harris all brought 

separate suits in Florida state court alleging that defects in their M2-a Magnum 

hip implants injured them. All three plaintiffs have filed motions to remand their 

cases to state court, raising similar issues. Also before the court are Biomet’s 

motion to sever dispensable defendants (filed in each of the three cases) and 

motions by each of the three plaintiffs for a protective order and stay. Finally, 

two other motions by Ms. Harris must be resolved before reaching her remand 

arguments: a motion to substitute defendants in her complaint, and a motion to 

lift the stay in effect as to her other pending motions. 

For the reasons that follow, I deny Biomet’s motion to sever in all three 

cases, grant Ms. Harris’s motions to substitute parties and to lift the stay, and 

grant the plaintiffs’ motions to remand. Because the cases will be remanded to 

the Florida courts, the three motions for protective orders and stays are moot. 

I. BACKGROUND
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The three plaintiffs share similar factual backgrounds and procedural 

postures for purposes of these motions. The plaintiffs all had hip replacement 

surgeries in which their doctors implanted Biomet M2a-Magnum hip 

replacement components. The implants eventually failed, and the plaintiffs had 

to have revision surgery. Each plaintiff then independently filed suit in state 

court in Florida, alleging negligence, failure to warn, strict product liability, and 

breach of express and implied warranties. 

The plaintiffs all sued Biomet Inc. and Biomet Orthopedics LLC, two 

Biomet entities involved in designing, manufacturing, and selling the hip 

implants. Each plaintiff also named as defendants the people and companies 

who distributed their hip implants on Biomet’s behalf: Ms. Taranto named 

Orthopedics Inc., James H. Barr, Orthodynamics Inc., and Paul Haber; Ms. 

DeJesus named Orthodynamics Inc., Paul Haber, Henry Riestra, Orthopaedic 

Resource Inc., Michael Trieste, and Walter Floyd; and Ms. Harris named 

Orthopaedic Resource Inc. and Orthopedics, Inc. I will refer to the non-Biomet 

defendants collectively as “Distributors.” The complaints allege that the 

Distributors had an agreement with Biomet to help market and sell the Magnum 

hip implant system to the plaintiffs’ doctors. 

For diversity purposes, the three plaintiffs and the Distributors are citizens 

of Florida, while the two Biomet defendants are not. The defendants removed all 

three cases to Florida federal courts based on diversity of citizenship under 28 

U.S.C. § 1446, arguing that complete diversity existed notwithstanding the 
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Florida citizenship of the Distributors because the Distributors were fraudulently 

joined. The Judicial Panel on Multidistrict Litigation transferred the cases into 

the Biomet multi-district litigation docket, and the plaintiffs now ask me to 

remand to the Florida state courts where the suits were originally filed. 

II. DISCUSSION

Before reaching the merits of the remand motions and the motions to sever 

dispensable defendants, I must resolve Ms. Harris’s motions to lift the stay on 

her case and to amend her complaint by substituting defendants. 

When Biomet removed Ms. Harris’s case to federal court, the notice of 

removal included affidavits establishing that the Distributors named in Ms. 

Harris’s complaint couldn’t have been responsible for her hip implant – at the 

time of her original 2006 implantation surgery, neither Orthopaedic Resource, 

Inc. nor Orthopedics, Inc. did business in Sarasota County, Florida at all. 

Because the two Distributors named in Ms. Harris’s complaint couldn’t have had 

anything to do with her hip replacement, Biomet argued that they had been 

fraudulently joined simply to defeat diversity jurisdiction and keep the case in 

state court. 

Four days after the notice of removal, Ms. Harris moved to amend her 

complaint to replace Orthopaedic Resource, Inc. and Orthopedics, Inc with what 

she now understood to be the Florida-based Distributors who actually provided 

her implant, Paul Haber and Orthodynamics, Inc. Ms. Harris then filed her 
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motion to remand, arguing that joinder wasn’t fraudulent once the correct 

Distributors were substituted and that immediate remand was necessary to 

prevent her case being transferred into this MDL. Biomet opposed the motion, 

and the case was transferred to this court before the Middle District of Florida 

ruled on either of Ms. Harris’s pending motions. 

Once the case became part of the Biomet MDL, the parties filed 

supplemental briefing reaffirming their positions on both remand and 

substitution of the new Distributors. The parties indicated they were discussing 

settlement and would like to stay consideration of the two pending motions; I 

granted the motion and stayed the case pending settlement. Settlement 

discussions didn’t bear fruit, and Ms. Harris now asks me to lift the stay and 

rule on her motion for leave to substitute parties. 

A. Ms. Harris’s Motion to Lift the Stay 

Ms. Harris requested the stay because the parties were in serious 

settlement discussions; now that those discussions have proven unsuccessful 

there is no reason to continue the stay. Biomet argues that maintaining the stay 

would promote judicial efficiency because it will ensure that this case remains 

in the MDL with five other cases belonging to Ms. Harris’s lawyers. 

The motions that are stayed call into question this court’s jurisdiction to 

preside over Ms. Harris’s. If, as Ms. Harris argues, diversity of citizenship is 

lacking, no federal court has subject matter jurisdiction and remand of the case 
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is mandatory. Now that the case is prepared to move forward again, I can’t keep 

it in this MDL and proceed any further without addressing subject matter 

jurisdiction. “Subject-matter jurisdiction cannot be forfeited or waived and 

should be considered when fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671 

(U.S. 2009). Ms. Harris’s remand motion puts the court’s subject matter 

jurisdiction fairly in doubt, the practical considerations of judicial economy and 

efficiency that Biomet emphasizes can’t overcome the court’s duty to evaluate – 

sua sponte, if need be – the question of whether it has jurisdiction to hear a case. 

See Int’l Union of Operating Eng’rs, Local 150 v. Ward, 563 F.3d 276, 282 (7th 

Cir. 2009). 

Accordingly, I grant Ms. Harris’s motion to lift the stay and consider her 

motions to substitute parties and to remand. 

B. Ms. Harris’s Motion to Substitute Parties 

Ms. Harris says her original complaint mistakenly named the wrong 

Distributors, and asks for leave to amend her complaint only to correct the error 

and substitute the parties that actually distributed her implant. When she filed 

her original complaint, she says, she couldn’t easily determine who had 

distributed her Biomet hip implant because medical device distributor 

agreements are generally confidential and manufacturers don’t always make 

clear which middlemen they work with in which areas. Ms. Harris’s attorney 

explains that he knew some local entity distributed Ms. Harris’s implant, so he 
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checked Biomet’s website to determine who. Orthopaedic Resource Inc. and 

Orthopedics Inc. were listed as the distributors in reasonable proximity to the 

hospital where Ms. Harris had her surgery. Believing it likely that one of those 

two distributors was the one involved in Ms. Harris’s 2006 surgery, Ms. Harris’s 

attorney named both as defendants and hoped to figure out through discovery 

which actually provided her implant. 

Only when Biomet provided declarations in connection with its notice of 

removal did Ms. Harris realize that the distributors that then worked with Biomet 

in that part of Florida weren’t active there in 2006. Upon further investigation, 

her attorney identified another case in which Paul Haber was named as a 

defendant and which included affidavits making clear that Mr. Haber’s 

distributorship territory included Sarasota County from 1999 to 2007. Based on 

that case – and on publicly available testimony from Mr. Haber in other cases – 

Ms. Harris now believes that Mr. Haber and Orthodynamics were involved in 

distributing her implant. She seeks leave to replace Orthopaedics Resource Inc. 

and Orthopedics Inc. with Mr. Haber and Orthodynamics, leaving the rest of the 

allegations in her complaint unchanged. 

Biomet objects to substituting the correct Distributors, arguing that the 

proposed amendment would defeat subject matter jurisdiction and so should be 

carefully scrutinized under 28 U.S.C. § 1447(e). Ordinarily, a federal court 

“should freely give leave [to amend] when justice so requires.” Fed. R. Civ. Proc. 

15(a)(2). When a plaintiff seeks to amend after removal by joining non-diverse 
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defendants, granting leave to amend would destroy the court’s subject matter 

jurisdiction so the court “may deny joinder, or permit joinder and remand the 

action” to state court. 28 U.S.C.A. § 1447(e). “A district court has discretion to 

permit or deny post-removal joinder of a nondiverse party, and the court should 

balance the equities to make the determination.” Schur v. L.A. Weight Loss 

Centers, Inc., 577 F.3d 752, 759 (7th Cir. 2009). Those equities to be weighed 

include “(1) the plaintiff’s motive for seeking joinder, particularly whether the 

purpose is to defeat federal jurisdiction; (2) the timeliness of the request to 

amend; (3) whether the plaintiff will be significantly injured if joinder is not 

allowed; and (4) any other relevant equitable considerations.” Id. 

Biomet insists that Ms. Harris’s proposed amendment must be carefully 

scrutinized under § 1447 because it would defeat diversity, but the court isn’t 

persuaded that § 1447 applies. Unlike the typical situation in which a plaintiff 

originally names only out-of-state defendants and then belatedly tries to add instate defendants after removal, Ms. Harris included in-state defendants in her 

original state court complaint – she just included the wrong ones by mistake. 

Ms. Harris seeks leave to replace one set of Florida defendants with another, so 

the amendment wouldn’t destroy the court’s diversity jurisdiction. 

Even if this amendment is considered under § 1447 rather than the liberal 

standard of Rule 15, Ms. Harris has shown good cause to permit the joinder. 

Whatever Ms. Harris’s motive in originally naming in-state defendants, the 

motive behind the amendment is simply to remedy a case of mistaken identity. 
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The request is also timely, as Ms. Harris moved to amend her complaint and 

substitute parties only four days after Biomet’s removal motion put her on notice 

that she had accused the wrong Distributors. Ms. Harris will be significantly 

injured if joinder isn’t allowed, because an oversight as to the identity of her 

implant distributor will cause her to both lose any potentially valid claims she 

might have against the Distributors and lose her access to the forum of her 

choice. 

Biomet insists that the initial mistake Ms. Harris made in naming the 

wrong Distributors proves her claims against them aren’t legitimate; if she truly 

cared about suing the Distributors, she would have double checked to make sure 

she was naming parties actually involved in the sale of her implant. But even if 

Ms. Harris’s attorney could have and should have exercised more care when 

identifying the seller of her implant, that doesn’t prove that any claim against 

the Distributors is necessarily a hollow artifice meant only to defeat diversity 

jurisdiction. Biomet also points to Ms. Harris’s ability to quickly correct the 

mistake and identify the correct Distributors without discovery as soon as 

Biomet moved to remand, arguing that this shows Ms. Harris neglected to 

conduct even a minimum of due diligence before filing her state court complaint. 

Ms. Harris’s counsel has adequately explained how the mistake happened and 

quickly corrected it as soon as it was brought to his attention. Biomet’s 

speculation as to Ms. Harris’s motives in naming the Distributors isn’t supported 

by anything in the record. 
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Accordingly, I am granting Ms. Harris’s motion for leave to substitute 

parties. When considering Ms. Harris’s motion to remand, I will treat her 

complaint as if it named the correct Distributors involved in selling her hip 

implant, namely Mr. Haber and Orthodynamics. 

C. Motions to Remand 

All three plaintiffs’ have moved to remand, arguing that there isn’t 

complete diversity of citizenship. For diversity purposes, the plaintiffs and 

Distributors are Florida citizens, and the Biomet defendants are Indiana citizens. 

The defendants removed this case to federal court on the argument that the 

Distributors’ citizenship should be disregarded for diversity purposes, because 

they were fraudulently joined in light of the plaintiffs’ inability to prevail on any 

claim against them. The plaintiffs argue that removal was improper, because 

they have valid claims against the Distributors in state court joinder wasn’t 

fraudulent. 

For a federal court to have jurisdiction over a suit based on diversity, there 

must be complete diversity of citizenship – no defendant can share the 

citizenship of any plaintiff. 28 U.S.C. § 1332(a). A plaintiff can’t fraudulently join 

a non-diverse defendant solely for the purpose of destroying diversity 

jurisdiction. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 763 (7th Cir. 

2009). “Fraudulent” in this context doesn’t mean bad faith on the plaintiff’s part; 

it means that the claims against the non-diverse defendant have no realistic 
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chance of success. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). 

To decide whether joinder was fraudulent, a court must ask whether, “after 

resolving all issues of fact and law in favor of the plaintiff . . . there is any 

reasonable possibility that the plaintiff could prevail against the non-diverse 

defendant.” Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d at 764 (internal 

quotation marks omitted). The party seeking removal – or, as here, resisting 

remand – bears the heavy burden of showing that joinder was fraudulent. Id. at 

763. If the removing defendant meets that heavy burden of demonstrating 

fraudulent joinder, the district court “may disregard the nondiverse defendant” 

for jurisdictional purposes, such that the fraudulent joinder doctrine acts as “an 

exception to the requirement of complete diversity.” Morris v. Nuzzo, 718 F.3d 

660, 666 (7th Cir. 2013) (internal quotation marks omitted). 

In deciding whether a defendant has been fraudulently joined, a court isn’t 

limited to the pleadings and may consider summary judgment-type evidence 

such as affidavits. Millman v. Biomet Orthopedics, Inc., No. 3:13-CV-77 RLMCAN, 2013 WL 6498394, at *2 (N.D. Ind. Dec. 10, 2013); Siegel v. H Group 

Holding, Inc., No. 07 C 6830, 2008 WL 4547334, at * 3 (N.D. Ill. Apr. 9, 2008) 

(“[A] limited use of affidavits and other evidence is permissible so long as the 

evidence is not used to ‘pre-try’ the case.”). The fraudulent joinder analysis 

requires a district court to apply state law to determine whether the plaintiff 

would have any reasonable possibility of success against the non-diverse 
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defendant in state court. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d at 764. 

The parties agree that Florida law governs this case. 

The plaintiffs argue that removal was improper because product 

distributors can be held strictly liable for injuries caused by defective products 

under Florida law. They insist that they could conceivably prevail in a suit 

against the non-diverse defendants in Florida courts, so the Distributors weren’t 

fraudulently joined and complete diversity is lacking. 

Biomet’s equitable arguments 

, Biomet’s says I needn’t even reach the merits of the fraudulent joinder as 

to Ms. DeJesus and Ms. Taranto, because they should be barred from 

challenging the court’s jurisdiction for equitable reasons. Ms. DeJesus and Ms. 

Taranto previously tried to settle their cases, and even moved for the court to 

enforce their purported settlements when the agreement with Biomet fell 

through. According to Biomet, the doctrines of waiver, judicial estoppel, and 

equitable estoppel all bar the plaintiffs from moving for remand; having 

purposely invoked the court’s jurisdiction in trying unsuccessfully to have their 

settlement judicially enforced, the plaintiffs have lost the right to challenge that 

jurisdiction once their enforcement efforts failed. 

This argument runs aground on the bedrock principle that federal courts 

are courts of limited jurisdiction and “have only the power that is authorized by 

Article III of the Constitution and the statutes enacted by Congress pursuant 
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thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Even 

if the parties don’t address the issue of subject matter jurisdiction, a federal 

court has a duty to evaluate sua sponte whether it has jurisdiction to hear a 

case. See Int’l Union of Operating Eng’rs, Local 150 v. Ward, 563 F.3d 276, 282 

(7th Cir. 2009). Because parties can’t expand this court’s subject matter 

jurisdiction even by explicit consent, it naturally follows that they can’t do so 

indirectly through waiver, estoppel, or other equitable considerations. 

Biomet concedes that “waiver and estoppel are themselves insufficient to 

confer federal subject-matter jurisdiction where it would otherwise be lacking” 

but suggests that it’s still relevant that the plaintiffs accepted jurisdiction when 

it suited them and have now reversed course. Biomet makes no attempt to 

explain what that relevance is –if subject matter jurisdiction is lacking, nothing 

the parties do or fail to do can bring a case within the constitutional and 

statutory power of an Article III court. Tellingly, the only case Biomet cites in 

support of its position is a half-century old and not binding on this transferee 

court: Di Frischia v. N.Y. C. R. Co., 279 F.2d 141, 144 (3d Cir. 1960). In Di 

Frischia, the court refused to let party that had stipulated to jurisdictional facts 

later withdraw that stipulation and challenge federal jurisdiction. That’s not the 

case here, as the plaintiffs never affirmatively stipulated that jurisdiction existed; 

they simply didn’t challenge it until their attempt to enforce the settlement fell 

through. More importantly, the Seventh Circuit has explicitly declined to adopt 

Di Frischia’s reasoning. See Sadat v. Mertes, 615 F.2d 1176, 1189 (7th Cir. 1980) 
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(noting that Di Frischia “has been ignored, criticized, or limited to its facts and 

distinguished by the federal courts.”). In this circuit, the law is clear that 

equitable doctrines like waiver and estoppel have no bearing on a court’s 

jurisdictional inquiry. See Moore v. Olson, 368 F.3d 757, 759 (7th Cir. 2004) 

(“Defendants are entitled to waive any shortcomings in venue or jurisdiction over 

the person...[d]efects in subject-matter jurisdiction, however, may not be waived 

or forfeited.”); Sadat v. Mertes, 615 F.2d at 1188 (noting that “jurisdiction 

otherwise lacking cannot be conferred by consent, collusion, laches, waiver, or 

estoppel.”). 

Fraudulent joinder 

Because Biomet’s equitable arguments are irrelevant to the issue of 

subject matter jurisdiction, I turn to the merits of the fraudulent joinder inquiry. 

The central question is whether the plaintiffs have a reasonable probability of 

prevailing against the Distributors on any of their claims. They do. The plaintiffs’ 

complaints adequately allege a colorable strict product liability claim against the 

Distributors under Florida law.1 

While originally limited to the manufacturer of a product, “Florida courts 

have expanded the doctrine of strict liability to others in the distributive chain 

 

1 Because the strict liability claims are colorable as to the Distributors, I don’t reach the 

parties’ arguments as to whether the failure to warn claims are also colorable. 
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including retailers, wholesalers, and distributors.” Samuel Friedland Family 

Enterprises v. Amoroso, 630 So. 2d 1067, 1068 (Fla. 1994). Biomet emphasizes 

that the Distributors never actually bought or took title of the implants, acting 

only as middlemen to deliver the implants to hospitals. A plaintiff seeking to hold 

a product distributor strictly liable for a product defect “need not prove the 

defendant was ever in physical possession” but must establish that the 

distributor “possessed some element of control over the allegedly defective 

product.” Devore v. Howmedica Osteonics Corp., 658 F. Supp. 2d 1372, 1379 

(M.D. Fla. 2009) (internal quotation marks omitted). In determining whether an 

“element of control” is present, courts consider “whether the person or entity 

placed the product in the stream of commerce, is in a position to control the risk 

of harm a product might cause once put into the stream of commerce, or either 

created or assumed the risk of harm for the defective product.” Rivera v. Baby 

Trend, Inc., 914 So. 2d 1102, 1104 (Fla. Dist. Ct. App. 2005). 

Contrary to Biomet’s arguments, the plaintiffs have alleged a sufficient 

element of control to state a colorable claim against the Distributors under 

Florida law. All three plaintiffs allege unequivocally that the Distributors placed 

the implants in the stream of commerce by arranging their sale to hospitals and 

doctors. According to the complaints, the Distributors acted as Biomet’s local 

representatives with regard to the implants in question, selling, marketing, and 

distributing the implants for profit. That the Distributors had no hand in 

designing the implants and might not have known of their defects isn’t 
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dispositive. While the plaintiffs don’t allege that the Distributors ever took title 

to the implants or physically possessed them, Biomet doesn’t cite any Florida 

authority suggesting that taking title is dispositive of – or even relevant to – to 

the question of whether a retailer or distributor had sufficient control over the 

product to be held strictly liable for its defects. Instead, taking an active role in 

marketing and selling a product appears to be enough for Florida courts. See id. 

at 1105 “holding that retailer of strollers could be held liable for defects, because 

“[e]ven though [the retailer] never had actual possession of the stroller” it “was 

the actual seller of the product, marketed the product... and accepted payment 

for the product.”). 

Strengthening this conclusion, Florida district courts have consistently 

held that medical device distributors can be strictly liable for product defects 

and have granted remand motions over defendants’ fraudulent joinder 

objections. See, e.g., Barnes v. Bayside Orthopaedics, Inc., No. 8:11-CV-2827-T30EAJ, 2012 WL 162368, at *2 (M.D. Fla. Jan. 19, 2012) (granting motion to 

remand where complaint alleged that distributor sold and marketed medical 

device, because “[e]ntities that play an active role in promoting a particular 

product within the chain of distribution to the general public are strictly liable 

for any defect in the product.”); Martin v. Medtronic, Inc., No. 5:11-CV-144/RSCJK, 2011 WL 2473318, at *1 (N.D. Fla. June 22, 2011) (granting motion to 

remand, because “even though [the distributor] never took possession of the 

insulin pump, its role in the situation was part of the ‘distributive chain.’”). In 
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fact, a Florida federal district court recently remanded a Biomet M2a-Magnum 

hip implant case virtually identical to these ones, holding that joinder of some of 

the same Distributors named here wasn’t fraudulent because Florida law allows 

strict liability claims against distributors under these circumstances. See, e.g., 

Zaremba v. Orthopedics, Inc., No. 8:14-CV-1016-T-33TGW, 2014 WL 3057400, 

at *3 (M.D. Fla. July 7, 2014) (holding that the plaintiff “has made a possible, 

colorable claim against the Non–Diverse Distributor Defendants under Florida 

strict liability law by alleging that the Distributor Defendants are part of the 

chain of distribution for defective M2a–Magnum Metal–on–Metal hip 

components.”). 

Finally, the plaintiffs point to three other cases in this MDL docket in 

which Florida-based plaintiffs sued the same Distributors at issue here; in those 

three cases, Biomet stipulated to remand and the cases were immediately 

returned to the Florida courts. See Paluzzi v. Orthopedics, Inc. et al., Case No. 

3:14-CV-1543-RLM (N.D. Ind. 2014); Silberg v. Orthopedics, Inc. et al., Case No. 

3:14-CV-1544-RLM (N.D. Ind. 2014); Moody v. Orthopaedic Resource, Inc. et al., 

Case No. 3:14-CV-1529-RLM (N.D. Ind. 2014). In one of those three cases, 

Biomet’s stipulation came in lieu of a response brief after the plaintiff moved to 

remand based on exactly the same arguments the plaintiffs raise here – namely, 

that the Distributors are strictly liable for product defects under Florida law and 

therefore not fraudulently joined. Those stipulations aren’t an admission of any 

sort by Biomet that this court lacks jurisdiction over any cases that name Florida 
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distributors. But Biomet’s ready agreement to remand in those cases suggests 

that returning Biomet to Florida might not be so prejudicial. 

Biomet bears a heavy burden of proving joinder was fraudulent by showing 

that the plaintiffs couldn’t possibly prevail against the Distributors in state court. 

It hasn’t met that burden. Because joinder of the Distributors wasn’t fraudulent 

there isn’t complete diversity of citizenship and the court lacks jurisdiction over 

these cases. 

D. Motions to Sever Dispensable Defendants and for a Protective Order and 

Stay 

In the event that I decide the Distributors weren’t fraudulently joined, 

Biomet asks that I exercise my discretion to sever the non-diverse defendants 

pursuant to Federal Rule of Civil Procedure 21. Biomet relies on a court’s power 

to sever dispensable defendants at any time, even if doing so is necessary to 

retain diversity jurisdiction. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 

U.S. 826, 837 (1989); see also Dexia Credit Local v. Rogan, 602 F.3d 879, 883 

(7th Cir. 2010) (“Under Rule 21, a district court can dismiss dispensable, 

nondiverse parties either before or after a final judgment.”). Biomet suggests that 

severance is desirable because it would allow the plaintiffs’ claims against 

Biomet itself to remain in this MDL while claims against the Distributors would 

be remanded to state court. 
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I disagree with Biomet’s interpretation of Rule 21 and Newman-Green, 

which would utterly eviscerate the concept of complete diversity. As Biomet 

would have it, a federal court could create subject matter jurisdiction from thin 

air in any case in which a plaintiff made the mistake of suing at least one diverse 

defendant, essentially turning the requirement of complete diversity into one of 

minimal diversity. This can’t be so; “[f]ederal courts are courts of limited 

jurisdiction” and “cannot create jurisdiction where [they] have none.” Healy v. 

Metro. Pier & Exposition Auth., 804 F.3d 836, 845 (7th Cir. 2015). When a 

plaintiff chooses to file valid state law claims in state court against a set of 

defendants not completely diverse from the plaintiff, the federal courts have no 

constitutional or statutory power to seize control of the case. To exercise the Rule 

21 severance power in situations like this “would be to allow the exception 

Newman–Green provides to swallow Fed.R.Civ.P. 17 & 19 and the complete 

diversity requirement.” Sta-Rite Indus., Inc. v. Allstate Ins. Co., 96 F.3d 281, 287 

(7th Cir. 1996). 

Even if the authority existed, severance wouldn’t be appropriate because 

the equities weigh heavily against severing all non-diverse defendants just to 

create diversity jurisdiction. Biomet insists that severance wouldn’t prejudice the 

plaintiffs, but it’s hard to see why; the plaintiffs would have to bear the cost and 

difficulty of litigating a state case and a federal case hundreds of miles away in 

parallel despite the two concerning exactly the same underlying facts. Biomet 

suggests that the plaintiffs won’t be prejudiced because in reality they will simply 
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drop the claims against the Distributors and proceed solely in this MDL, but that 

presumes the truth of Biomet’s unsupported theory that the plaintiffs have no 

real interest in suing the Distributors and only named them to destroy diversity. 

As already noted, Florida law permits the plaintiffs to sue – and recover from – 

the in-state Distributors. I decline Biomet’s invitation to speculate about the 

plaintiffs’ motives in naming valid defendants against whom the law gives them 

a remedy. Accordingly, I deny Biomet’s motions to sever the non-diverse 

defendants. 

 Finally, each plaintiff has moved for a protective order and stay, asking 

that I exempt her from the upcoming MDL-wide discovery deadlines and stay her 

case pending resolution of the remand motions. Because I am granting the 

motions to remand, the MDL deadlines no longer apply to the plaintiffs and their 

cases will return to Florida state court. Accordingly, the motions for protective 

order and stay are moot. 

III. CONCLUSION

For these reasons, I: 

 GRANT Ms. Harris’s motion to lift the stay (Doc. No. 64 in Cause No. 

3:13-CV-1359); 

 GRANT Ms. Harris’s motion to substitute party (Doc. No. 10 in 

Cause No. 3:13-CV-1359); 
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 GRANT all three plaintiffs’ motions to remand (Doc. No. 11 in Cause 

No. 3:13-CV-1359, Doc. No. 111 in Cause No. 3:14-CV-1434, and 

Doc. No 115 in Cause No. 3:14-CV-1505); 

 DENY Biomet’s motions to sever dispensable defendants (Doc. No. 

157 in Cause No. 3:13-CV-1359, Doc. No. 147 in Cause No. 3:14-

CV-1434, and Doc. No 152 in Cause No. 3:14-CV-1505); and 

 DENY AS MOOT the plaintiffs’ motions for a protective order and 

stay (Doc. No. 165 in Cause No. 3:13-CV-1359, Doc. No. 155 in 

Cause No. 3:14-CV-1434, and Doc. No 160 in Cause No. 3:14-CV1505). 

SO ORDERED. 

 ENTERED: July 18, 2016 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court