UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JOY BUSH, Personal Representative )

of the Estate of Larry Clark, )

)

Plaintiff )

)

 vs. ) CAUSE NO. 3:14-CV-1571 RM 

)

BIOMET ORTHOPEDICS, LLC, et al., )

)

Defendants )

OPINION and ORDER

The court dismissed Joy Bush’s amended complaint on June 19, 2014

because that complaint didn’t contain allegations sufficient to establish diversity

jurisdiction under 28 U.S.C. § 1332. The jurisdictional allegations of that

complaint were that Joy Bush, as personal representative of the Estate of Larry

Clark, “is a citizen and resident of the State of Indianapolis” and the Biomet

defendants are all Indiana citizens. The dismissal was without prejudice.

Ms. Bush is now before the court on her motion to reopen this case; she has

also asked leave to file a second amended complaint, in which she alleges that she

is a citizen of Indiana, decedent Larry Clark was an Indiana citizen at the time of

his death, the Biomet defendants are all Indiana citizens. She claims that “[t]his

court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(11) as this

matter is a mass action in which there is minimal diversity in that at least one

Plaintiff in the MDL is not a citizen of the same state as at least one defendant and
the Plaintiffs each seek recovery exceeding $75,000.00 with the total matter in

controversy exceeding $5,000,000.00.” Proposed Second Amd. Compl., ¶ 16. The

Biomet defendants haven’t filed a response and the time for doing so has passed.

Ms. Bush is mistaken in her claim that “[b]ecause this case is part of an

MDL mass action, it need only meet the minimal diversity requirements of 28

U.S.C. § 1332(d)(11).” The Biomet MDL was assigned to this court, and cases have

been transferred here, pursuant to 28 U.S.C. § 1407, not 28 U.S.C. § 1332(d)(11).

See Transfer Ord. (Oct. 2, 2012) [docket # 1 in Cause No. 3:12-md-2391]. No cases

in the MDL have been certified as a class action and no plaintiff has requested to

be or been designed as the personal representative of any class under Federal

Rule of Civil Procedure 23. The cases in the Biomet MDL have been centralized in

this court for the purpose of conducting pretrial discovery, not for the purpose of

conducting joint trials. See Transfer Ord. (“Centralization will avoid duplicative

discovery on such complex issues as the design, testing, manufacturing, and

marketing of the M2a Magnum system and related motion practice . . . [and] will

eliminate duplicative discovery, prevent inconsistent pretrial rulings on discovery

and other issues, and conserve the resources of the parties, their counsel, and the

judiciary.”). Thus, the Biomet MDL isn’t a “mass action” under 28 U.S.C. §

1332(d)(11), which is defined as “any civil action in which monetary relief claims

of 100 or more persons are proposed to be tried jointly on the ground that the

plaintiffs’ claims involve common questions of law or fact,” 28 U.S.C. §

1332(d)(11)(B)(i), and specifically does not include “any civil action in which . . .

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the claims have been consolidated or coordinated solely for pretrial proceedings.”

28 U.S.C. § 1332(d)(11)(B)(ii)(IV).

Ms. Bush’s proposed second amended complaint alleges that decedent Larry

Clark and the Biomet defendants are all citizens of the State of Indiana and so

doesn’t allege the existence of diversity jurisdiction under 28 U.S.C. § 1332(a)(1).

The court DENIES her motion to reopen this case [docket # 17] and DENIES her

motion for leave to file a second amended complaint [docket # 20].

SO ORDERED.

ENTERED: September 12, 2014 

 /s/ Robert L. Miller, Jr. 

Judge, United States District Court

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