10-512-cv Brown v. Eli Lilly & Co. UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term 2010 3
Docket No. 10-512-cv 4 Argued: May 4, 2011 Decided: August 18, 2011 5

_____________________________________________________________________________ 6
DERRICK BROWN, Personal representative of the Estate of Dorothy A. Brown, Deceased, 7 Plaintiff-Appellant , 8

- v. - 9
ELI LILLY AND COMPANY, 10 Defendant-Appellee, 11
NOXUBEE GENERAL HOSPITAL, BAPTIST MEMORIAL HOSPITAL-GOLDEN 12 TRIANGLE, POLICE OFFICERS JOHN DOES 1–5, 13 Defendants

. 14

_____________________________________________________________________________ 15 Before: MINER, WALKER and WESLEY, Circuit Judges

. 16
Appeal from summary judgments, certified as final pursuant to Federal Rule of Civil 17 Procedure 54(b), in favor of defendant hospitals and from a summary judgment in favor of 18 defendant-appellee Eli Lilly, all entered in the United States District Court for the Eastern District of 19 New York (Weinstein, J. ) in a removed action to recover for the wrongful death of plaintiff20 appellant’s decedent arising out of her treatment with the drug Zyprexa, the District Court having 21 denied plaintiff’s motion to remand for lack of diversity jurisdiction after dismissing the claim 22 against the non-diverse defendant hospitals. 23
Dismissed in Part and Affirmed in Part. 24

ANGELA T URNER L AIRY , Turner & Associates, 25 P.L.L.C. (Bennie L. Turner, of counsel ), West Point, 26 Mississippi, forPlaintiff-Appellant

. 27
E RIC R OTHSCHILD , Pepper Hamilton LLP (Nina M. 28 Gussack and Franklin T. Pyle III, of counsel ), 29 Philadelphia, Pennsylvania, forDefendant-Appellee

. 30

1MINER, Circuit Judge : 1 Plaintiff-appellant Derrick Brown (“Brown”), Personal Representative of the Estate of 2 Dorothy Brown, deceased, appeals from summary ju dgments certified as final pursuant to Federal 3 Rule of Civil Procedure 54(b) in favor of defendants Noxubee General Hospital (“Noxubee”) and 4 Baptist Memorial Hospital-Golden Triangle (“Bapt ist”) and from a summary judgment in favor of 5 defendant-appellee Eli Lilly and Company (“Eli Lilly”). The judgments were entered in the United 6 States District Court for the Eastern District of New York (Weinstein, J. ). The action giving rise to 7 this appeal, removed from state court in Mississippi to a federal district court in Mississippi, and 8
thereafter transferred to the Eastern District of New York, was brought to recover for the wrongful 9 death of Dorothy Brown (“Ms. Brown”) allegedly due to her treatment with the drug Zyprexa, 10 which is manufactured by Eli Lilly. An earlier appeal from the certified judgment in favor of 11 Noxubee was withdrawn by stipulation. An earlier appeal from the certified judgment in favor of 12 Baptist was dismissed. A motion to remand, predicated on the lack of diversity on the parts of 13 Noxubee and Baptist was denied following the issuance of all the orders granting summary 14 judgment. 15
BACKGROUND 16 I. Inception, Removal and Transfer 17 Dorothy Brown, a resident of Macon, Mississippi, suffered from various ailments, including 18 depression with psychotic features, schizophrenia , and insulin-dependent diabetes mellitus. While 19 under psychiatric care during the period Janu ary 1999–June 2003, she was prescribed Zyprexa, 20 which is manufactured by Eli Lilly. 1 On August 20, 2005, Ms. Brown presented at the Emergency 21 Department of Noxubee in Macon. Her complaints included difficulty in breathing and high blood 22 glucose. Discharged the same day, she presented at Baptist in Flowood, Mississippi, the next day. 23 Discharged the day that she was admitted at Baptist, she returned to Noxubee on August 22 and 24

1 Use of Zyprexa was discontinued by Ms. Brown because of the “apparent adverse effect it had on [her] blood glucose levels.”
2again was discharged after a brief visit. On August 24, 2005, Ms. Brown died at her residence. Her 1
death certificate listed the cause of death as cardiac arrest. 2 The complaint in the action to recover damages for the wrongful death of Ms. Brown was 3 filed in the Circuit Court of Noxubee County, Mississippi, on October 23, 2007, and the First 4 Amended Complaint was filed in the same court on November 6, 2007. As to the defendant 5 hospitals, the Amended Complaint included allegations that Ms. Brown “was discharged by the 6 Emergency Departments when it was known, or should have been known, that [Ms. Brown] was 7 unable to provide necessary personal and medical care for herself as the result of her impairment.” 8 The claims pleaded against Eli Lilly included failure to warn about substantial risks in the use of 9 Zyprexa, an antipsychotic drug said to be associ ated with “an increasing prevalence of hyperglycemia 10 and diabetes-related illnesses.” Also pleaded were claims for violations of various provisions of the 11 Mississippi Products Liability Act and for gross negligence. According to the complaint, when 12 “Zyprexa® left the control of the Defendant Lilly it was a defective product.” 13 By Notice of Removal filed on January 31, 2008, Eli Lilly removed the action to the United 14
States District Court for the Southern District of Mississippi, Eastern Division, invoking the District 15 Court’s diversity jurisdiction. Acknowledging that it was a resident of Indiana and that Brown, 16 Noxubee, and Baptist were residents of Mississippi (and, apparently, that complete diversity was 17 lacking on the face of the complaint), Eli Lilly asserted in the Notice that Baptist and Noxubee 18 “have been fraudulently and improperly joined as [d]efendants to defeat diversity and must be 19 disregarded for purposes of determining divers ity of citizenship for federal jurisdiction.” 20 Eli Lilly argued that Baptist was improperly joined because Brown had failed to file with the 21 Amended Complaint a certificate required by Mississippi law that Brown had consulted with a 22 qualified expert and determined from such consultation that there was a reasonable basis for the 23 commencement of the action. As an additional argument that Baptist was improperly joined, Eli 24 Lilly noted that Brown had failed to comply properly with the Mississippi statutory requirement that 25 a written notice of a claim for professional negligen ce be served sixty days prior to the filing of a 26

3lawsuit in that “the notice did not adequately state the legal basis of the claim and was not in 1 compliance with [the statute].” 2 In asserting improper joinder of Noxubee in the Notice of Removal, Eli Lilly noted that 3 Noxubee is a “community hospital” as defined by Mississippi law and therefore is entitled to the 4 benefit of the Mississippi Tort Claims Act (“MTCA”) . That Act requires service of a written notice 5 of claim containing specific information at least ni nety days prior to the filing of an action against a 6 community hospital. According to Eli Lilly, “[p]laintiff did not provide the ninety (90) day notice as 7 required,” so the claim as against Noxubee must be dismissed. In further support of its claim that 8 Noxubee was improperly joined, Eli Lilly noted that, as in the case against Baptist, Brown failed to 9 file a certificate of consultation with an expert and thus was delinquent in providing the sixty-day 10 notice of a claim for professional negligence requi red by Mississippi law. The Notice of Removal 11 also recited that the allegations of the complaint were insufficient to plead a cause of action against 12 either Baptist or Noxubee. 13 On February 29, 2008, Brown filed a motion in the District Court in Mississippi challenging 14 Eli Lilly’s contention that Noxubee and Baptist had been fraudulently joined and seeking remand of 15 the action to state court. Before removal, Noxubee had filed a motion for summary judgment, and 16 Baptist had moved to dismiss the complaint. After removal, Noxubee once again filed a motion for 17 summary judgment, contending that the action was time-barred and that Brown had failed to 18 comply with Mississippi requirements for notice and for certification of pre-suit expert consultation. 19 By order filed on August 11, 2008, the Panel on Multidistrict Litigation, having determined 20 that the Eastern District of New York was the proper forum for actions relating to the drug 21 Zyprexa, ordered that the actions before the panel and all “other related actions” be transferred to 22
that forum. SeeIn re Zyprexa Products Liab. Litig. , 314 F. Supp. 2d 1380, 1381 n.1 (J.P.M.L. 2004). 23 The motions pending in the Southern District of Mississippi were still pending at the time of 24
transfer. 25 II. Proceedings in the Eastern District of New York: Decisions Rendered and Appeals 26

4Withdrawn 1 By Memorandum and Order filed on October 15, 2008, the District Court for the Eastern 2
District of New York addressed Brown’s motion to remand. The court noted Brown’s contention 3 “that the presence . . . of defendants Noxubee General and Baptist Memorial creates incomplete 4 diversity, so that remand to state court is required.” The court also noted Lilly’s contention that the 5 non-diverse defendant hospitals had been fraudulently joined and that the case therefore had been 6 properly removed. In reviewing the rule of fraudulent joinder, the court stated, inter alia , that 7 “[w]here a plaintiff has added a defendant against whom there is no reasonable basis for recovery, 8 joinder of that party is fraudulent”; and that, in this case, “[t]o decide whether joinder is fraudulent, 9 the court looks to Mississippi state law to determineif there is a valid claim against the non-diverse 10
defendants.” 11 Applying the provisions of the MTCA, prov iding for the assertion of claims against 12 governmental entities, the District Court found (1) that Noxubee, as a “community hospital,” is a 13 governmental entity; (2) that there is a one-year statute of limitations for the commencement of 14 actions against governmental entities, seeMiss. Code Ann. § 11-46-11(3); (3) that Brown’s action 15 was commenced approximately 22 months after the actionable conduct; (4) that a Notice of Claim 16 must be served on a governmental entity within ninety days of filing an action in court, seeMiss. 17 Code Ann. § 11-46-11(1), and contain certain specific information, seeMiss. Code Ann. § 11-46- 18 11(2); and (5) that the Notice that Brown served on Noxubee failed to include adequate responses to 19 the items of required information. Accordingly, the court concluded that Brown’s claim against 20 Noxubee was time-barred as well as deficient for failure to comply with the Notice of Claim 21 requirements and that Noxubee therefore was fraudulently joined. 22 Following its determination as to fraudulent joinder, the court observed that Noxubee’s 23 motion for summary judgment remained open and that Brown would be given the opportunity to 24 argue that motion although “[t]here appears to belittle if any merit in plaintiff’s claim against 25
Noxubee.” 26

5As to Baptist, the court found that “[t]he record does not make clear whether Baptist 1 Memorial is a community hospital subject to the same statute and defenses as Noxubee.” The court 2 also noted an additional issue as to Baptist: whether Brown complied with the Mississippi 3 requirement that an expert be consulted prior to the filing of a malpractice complaint. SeeMiss. 4 Code Ann. § 11-1-58. Discovery on the questions of community hospital status for Baptist and 5 compliance with the expert consultation requirement were referred to Magistrate Judge Mann. In 6 concluding that it was not yet able to determine finally the remand motion, the court ruled that, 7 “[u]pon completion of discovery, Baptist Memorial may renew its motion for summary judgment 8 and Lilly may renew its motion to declare joinder of Baptist Memorial fraudulent for removal 9 purposes.” 10 The District Court granted Noxubee’s motion for summary judgment by order filed on 11 November 14, 2008, following oral argument held on November 7, 2008. Referring to the 12 discussion in its earlier order determining that Noxubee was fraudulently joined, the court rested its 13 grant of summary judgment on two grounds: (1) that the action was barred by the one-year statute 14 of limitations governing suits against community hospitals under the MTCA; and (2) that the Notice 15 of Claim requirements of the MTCA were not met in that the Notice failed to include facts relating 16 to at least three categories of information required to be included in the Notice. The court rejected 17 Brown’s arguments that Noxubee’s failure to provide complete medical records excused its failure to 18 comply with the statute of limitations as well as its failure to comply with the Notice requirements of 19
the MTCA. The court took notice of Noxubee’s certification that all records had been furnished to 20
Brown and denied Brown’s motion for additional ti me for discovery, holding that, in any event, 21 “[n]othing in any additional records would satisfy [Brown’s] failure to comply with the MTCA.” 22 By documents filed on January 9, 2009, the District Court certified final judgment “for 23 Noxubee General Hospital and against [Brown], there being no good reason for delay, such 24 judgment being final for all purposes including appeal under and pursuant to Rule 54(b) of the 25
Federal Rules of Civil Procedure.” Brown filed hi s Notice of Appeal from this final judgment on 26

6February 6, 2009. (A subsequent final judgment, similar in form to the one filed on January 9, was 1 filed on May 1, 2009, but no appeal was taken therefrom.) By stipulation filed on June 15, 2009, 2 executed by counsel for Brown and Noxubee, the appeal was withdrawn. The stipulation, “SO 3 ORDERED” by Staff Counsel on behalf of the Clerk of Court, recited that “the District Court 4 purported to grant certification under FRCP 54 (b), but without including a brief, reasoned 5 explanation of why there is no just reason for delay.” It also provided as follows: “This stipulation 6 shall not preclude any appeal from a final judgment in conformity with FRCP 54(b), which includes 7 a statement of reasons for certification, or from a final judgment adjudicating all the rights and 8 liabilities of all the parties herein.” 9 Following discovery ordered by the District Court and overseen by Magistrate Judge Mann 10 on the question of Brown’s compliance with the Mississippi state law requirements for expert 11 consultation, Baptist, on December 15, 2009, renewed its motion to dismiss first made in the 12 District Court of Mississippi. In discovery, Brown’s counsel revealed by affidavits that he had 13 consulted with at least one expert prior to filing the complaint; that he had concluded from the 14 consultation that there was a reasonable basis for the action; and that all consultations had occurred 15 on or before August 17, 2007, a date before the action was commenced. He specifically identified a 16 Mississippi psychiatrist, Dr. Wood Hiatt, as an expert that he had consulted. In its renewed motion, 17 Baptist argued that Dr. Hiatt was not qualified to gi ve an expert opinion as to Brown’s claim against 18 Baptist and therefore that Brown had failed to comply with the expert consultation requirement. 19 The District Court converted Baptist’s renewed motion to dismiss to a motion for summary 20 judgment after notice to the parties. 21 Baptist’s motion was argued at a hearing held on March 26, 2009. During the course of the 22 hearing, the court offered counsel for Brown the opportunity for an adjournment for the purpose of 23 taking the testimony of Dr. Hiatt at a Daubert hearing. Counsel declined the offer, and the court 24 granted the motion in a Memorandum, Order and Judgment filed on April 15, 2009. In granting the 25 motion, the court first reviewed the pre-f iling consultation requirement of the MTCA: 26

7For plaintiff to satisfy the pre-filing re quirement, the individual consulted must 1 be an “expert qualified pursuant to the Mi ssissippi Rules of Civil Procedure and the 2 Mississippi Rules of Evidence who is qualified to give expert testimony as to standard 3 of care or negligence” with respect to plaintiff’s claim. Miss. Code Ann. § 11-1-58. 4 Mississippi Rule of Evidence 702 allows one to qualify as an expert based on 5 “knowledge, skill, experience, training, or educ ation.” . . . . To be qualified to give expert 6 testimony as to a medical standard of careor negligence in Missi ssippi state courts, an 7 expert must be familiar with the relevant specialty. SeeHubbard v. Wansly , 954 So.2d 8 951, 958 (Miss. 2007). 9 Examining Dr. Hiatt’s background, the District Court found “that Dr. Hiatt’s expert 10 testimony has been limited to psychiatry; he has not been qualified as an expert in general medicine, 11 emergency medicine, or other specialties relevant to plaintiff’s claim against Baptist Memorial.” 12 Because Dr. Hiatt’s clinical experience, resear ch, and education were limited to the field of 13 psychiatry, the District Court concluded that Dr. Hiatt could not be considered “qualified to give 14 expert testimony as to standard of care or neg ligence” with respect to Brown’s claim against Baptist 15 as required by Miss. Code Ann. § 11-1-58. In vi ew of the failure of Brown’s cause of action, the 16 court determined that Baptist was fraudulently joined. Accordingly, in the same opinion, the court 17
ruled on Brown’s motion to remand as follows: 18
All non-diverse defendants have been dismisse d. Since plaintiff is a Mississippi citizen 19 and the sole remaining defend ant, Lilly, is not, complete diversity exists. The court 20 maintains subject matter jurisdiction. See28 U.S.C. § 1332(a). 21 An Amended Final Judgment was filed on May 29, 2009, certifying the summary judgment 22 in favor of Baptist as final pursuant to Federal Rule of Civil Procedure 54(b). A Notice of Appeal 23 from this judgment was filed on August 5, 2009. Although Noxubee was named as a defendant in 24 the title of the Notice of Appeal, the Notice reci ted only that appeals were taken from orders and 25 judgments in favor of Baptist, including the Amended Final Judgment certified for appeal. Both 26 Noxubee and Baptist moved to dismiss the appeal. By Order filed on December 14, 2009, we 27 dismissed the appeal with respect to Noxubee because, “as Appellant has acknowledged, his Notice 28 of Appeal covered only Orders pertaining to th e separate judgment in favor of Baptist entered 29 pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.” Brown v. Noxubee Gen. Hosp. , 30 No. 09-3337-cv (order of Dec. 14, 2009). 31

8In the same Order, we determined that dismissal of the appeal as to Baptist also was 1 warranted: “To the extent that Appellant seeks to appeal the Rule 54(b) Final Amended Judgment 2 entered in favor of Appellee Baptist or the Order that preceded it, this Court lacks jurisdiction 3 because the Notice of Appeal was untimely filed. SeeFed. R. App. P. 4(a)(1).” Id. Brown’s appeal 4 also sought review of the denial of a motion that Baptist had made pursuant to 28 U.S.C. § 1292(b) 5 to certify an interlocutory appeal of the dismissal of the claims against Baptist. As to that matter, we 6 determined that “this court lacks jurisdiction because an Order denying § 1292(b) certification is not 7 appealable.” Id. 8 Following dismissal of the claims against the non-diverse party defendants, the District 9 Court turned to the motion made by Eli Lilly for summary judgment. In denying the motion by 10 Memorandum, Order, and Judgment filed on January 11, 2010, the Court noted that it had issued a 11 Case Management Order requiring Brown to submit a case-specific expert liability Report by August 12 13, 2009, and that the deadline had passed with no Report having been submitted. It further noted 13 that a joint proposal had been approved on September 28, 2009, providing “that plaintiff may have 14 until October 30, 2009 either to produce an expert or to dismiss the claims against Lilly.” No expert 15 report was proffered by the amended deadline, and the court, after a full review of all the evidence 16 presented to it, concluded as follows: “No expert or evidence has connected [Ms. Brown’s] cause of 17 death or any medical problem to Zyprexa. Her cl aim [against Eli Lilly] cannot stand.” Recognizing 18 and rejecting Brown’s attempt to reargue the summary judgments dismissing the non-diverse 19 hospital defendants in connection with its opposition to Lilly’s motion, the District Court stated: “In 20 light of those dismissals, there is no obstacle unde r the Mississippi statute to dismissing plaintiff’s 21 claim against Lilly.” 22 III. The Instant Appeal 23 Brown filed the Notice of Appeal that brings the case before us on February 8, 2010. The 24 Notice purported to appeal every Order and Judgment entered in favor of Noxubee, Baptist, and Eli 25 Lilly. Included in the Orders appealed from is an Order filed on July 8, 2009, denying Brown’s 26

9motion pursuant to 28 U.S.C. § 1292(b) for interlocuto ry appeal of various orders pertaining to the 1 three defendants. Brown first argues on appeal that “it was error for the District Court to retain 2 jurisdiction, for as long as it did, without ruling on Plaintiff’s motion to remand and failing to 3 determine initially the existence of complete diversi ty. Instead, the district court elected to delve 4 into multi complex state law issues.” Brown contends that the issue of lack of jurisdiction raised by 5 his motion to remand should have been resolved before the court “address[ed] complex issues of 6 state law, including but not limited to the statute of limitations for the [MTCA], pre-suit 7 consultation, and the qualifications of an expert consulted for pre-suit consultation for professional 8 negligence actions filed in state court.” Brown asserts that complete diversity was in fact lacking at 9
the time of removal. 10 Contending that his appeals from the summary judgments in favor of Noxubee and Baptist 11 are timely, Brown argues that the District Court erred in granting summary judgment for the 12 hospitals and denying remand on the basis of frau dulent joinder. Asserting that Mississippi law 13 requires the litigation of actions for injuries prod ucing death in one lawsuit, Brown assigns error to 14 the District Court “in finding plaintiff’s wrongful de ath claims against Baptist, Noxubee and Lilly as 15 separate, distinct and independent.” Brown claims that the District Court erred in granting summary 16 judgment to Eli Lilly in the face of its oppositi on “raising the issue of subject matter jurisdiction, 17 stating the dictates of Mississippi’s wrongful death statute and challenging the authority upon which 18 Lilly relied upon (sic) to make technical and scie ntific arguments without evidentiary support.” 19 Brown further contends on appeal that “[t]he [D]istrict [C]ourt was without the necessary 20 evidentiary predicate to consider a vast majority of Lilly's argument in support of its motion for 21 summary judgment.” 22
ANALYSIS 23 I. Of the Reassertion of Appeals Previously Withdrawn or Dismissed 24 Although the Notice of Appeal that brings this case before us, filed on February 9, 2010, 25 purports to appeal from the final judgments entered in favor of Noxubee and Baptist, and while 26

10Brown makes various substantive arguments in support of those appeals in his brief, we are without 1 jurisdiction to consider either appeal. 2 As to the appeal from the final judgment in favor of Baptist, a previous appeal from that 3 judgment and from the order denying § 1292(b) certification of that judgment was “dismissed in part 4 as untimely and in part as taken from a non-appealable order.” SeeBrown v. Noxubee Gen. Hosp. , 5 No. 09-3337-cv (order of Dec. 14, 2009). We d etermined on that appeal that denial of § 1292(b) 6 certification was not appealable and that the appeal from the Rule 54(b) final amended judgment was 7 not timely filed. Id. The judgment had been entered on May 29, 2009, and the Notice of Appeal 8 was not filed until August 5, 2009, a date well beyond the thirty days allowed for filing such an 9 appeal. SeeFed. R. Civ. P. 4(a)(1)(A). In a civil ca se, Federal Rule of Appellate Procedure 4(a)(1) 10 and 28 U.S.C. § 2107 require an appellant to file a Notice of Appeal within thirty days of the entry of 11 the judgment or order from which the appellant appeals unless the United States or an agency or 12 office thereof is a party, in which case a sixty-day filing period applies. The Supreme Court has 13 made “clear that the timely filing of a notice of appe al in a civil case is a jurisdictional requirement.” 14
Bowles v. Russell , 551 U.S. 205, 214 (2007). Our dismissal of the previous appeal of the Baptist 15 judgment for lack of appellate jurisdiction is conc lusive, and Brown’s attempt to revive that appeal 16 here must be rejected. 17 Our Order of Dismissal of the previous appealalso dismissed a purported appeal of the 18 judgment in favor of Noxubee because, while Noxubee was named in the title, Brown’s “notice of 19 appeal covered only orders pertaining to the separate judgment in favor of Baptist.” SeeBrown , No 20 09-3337-cv (order of Dec. 14, 2009). Brown di d file a proper notice of appeal from the certified 21 judgment in favor of Noxubee on February 8, 2010. However, that appeal was withdrawn by 22 stipulation filed on June 15, 2009, and signed by counsel for Brown and Noxubee. The stipulation 23 provides that it “shall not preclude any appeal from a final judgment in conformity with FRCP 24 54(b), which includes a statement of reasons for certification or from a final judgment adjudicating 25 all the rights and liabilities of all the parties herein , or from an order of certification under 28 U.S.C. 26

11Sec. 1292(b).” The stipulation was stamped “SO ORDERED” and signed “FOR THE COURT” 1 on behalf of the Clerk of Court by Stanley E. Bass, Staff Counsel. It is noteworthy that the 2 stipulation refers to Federal Rule of Appellate Procedure 42(b), which provides for voluntary 3 dismissal and therefore contemplates a further appeal from an amended judgment to be entered. It 4 cannot be seen as providing for a dismissal without prejudice, which contemplates the reinstatement 5 of a withdrawn appeal. SeeLocal Rule 42.1. 6 According to counsel for Brown, a member of the Court’s staff advised counsel attending a 7 telephone pre-argument conference “that the distri ct court’s order certifying summary judgment in 8 favor of Noxubee as final pursuant to FRCP 54(b) was defective for failure to include a brief, 9 reasoned explanation of why there was no reason for delay.” Apparently assuming that the 10 judgment was a nullity, an incorrect assumption, the parties withdrew the appeal. Although Rule 11 54(b) provides that a district court “may direct en try of a final judgment as to one or more, but 12 fewer than all, claims or parties only if the court expressly determines that there is no just reason for 13 delay,” a judgment expressly certified as final under Rule 54(b) is no less final for omitting a 14 statement supporting a determination that there is no reason for delay. Although we have remanded 15 cases in which such a statement was lacking, seeNat’l Bank of Washington v. Dolgov , 853 F.2d 57 16 (2d Cir. 1988) (per curiam), we also have excused a failure to state reasons “[w]here the reasons . . . 17 are obvious . . . and a remand to the district court would result only in unnecessary delay in the 18 appeal process,” Fletcher v. Marino , 882 F.2d 605, 609 (2d Cir. 1989). Until a panel of this Court 19 determines otherwise, a judgment such as the one subj ect of the stipulation, reciting that there is no 20 just reason for delay and certifying final judgment pursuant to Rule 54(b), is final for all purposes. 21 Accordingly, the certified judgment in favor of Noxubee, filed on February 6, 2009, stands as a final 22 judgment and, the appeal from it having been voluntarily dismissed, seeFed. R. App. P. 42(b), the 23 Notice of Appeal filed on February 8, 2010, is untimely, and we are without jurisdiction over this 24 phase of Brown’s appeal. 25 Any argument that the time to appeal was somehow extended by the “SO ORDERED” 26

12inscription on the stipulation by the Clerk of Court must be rejected out of hand. The authority to 1 extend the time for filing appeals is vested in the di strict courts and not in the courts of appeals, but 2 only if specific conditions are met. See28 U.S.C. § 2107(c) (2006); Fed. R. App. P. 4(a)(5)–(6). 3 Federal Rule of Appellate Procedure 26(b), providing for the Court of Appeals to extend the time 4 prescribed by various rules, specifies that “the court may not extend the time to file: (1) a notice of 5 appeal (except as authorized in Rule 4) or a petition for permission to appeal. Fed. R. App. P. 6 26(b)(1). We have held that a Court of Appeals “has no power whatever to extend the deadline for 7 filing [a] notice of appeal.” Matarese v. LeFevre , 801 F.2d 98, 105 (2d Cir. 1986); seealso Martinez 8
v. Hoke , 38 F.3d 655, 656 (2d Cir. 1994). Moreover, the Clerk of Court or her representative is 9 authorized to decide only “routine, unopposed pro cedural motions,” Local Rule 27.1(c), and Staff 10 Attorney Bass, as the Clerk’s representative, had no authority to extend the time to appeal in this 11

case. 12
II. Of Removal and Remand 13 The federal removal statute allows a defendant to remove an action to federal court in “any 14 civil action brought in a State court of which the di strict courts of the United States have original 15 jurisdiction.” 28 U.S.C. § 1441(a) (2006). The district courts “have original jurisdiction of all civil 16 actions where the matter in controversy exceeds th e sum or value of $75,000, exclusive of interest 17 and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a) (2006). 18 To remove a case based on diversity jurisdiction, the diverse defendant must aver that all of 19 the requirements of diversity jurisdiction have been met. See28 U.S.C. § 1446(a) (2006). Complete 20 diversity of citizenship of the parties is required, since an “action shall be removable only if none of 21 the parties in interest properly joined and served as defendants is a citizen of the State in which such 22 action is brought.” 28 U.S.C. § 1441(b) (2006). A plaintiff who believes a case has been improperly 23 removed may seek remand under the provisions of 28 U.S.C. § 1447(c), which provides: “If at any 24 time before final judgment it appears that the di strict court lacks subject matter jurisdiction, the case 25
shall be remanded.” 26

13A plaintiff may not defeat diversity jurisdiction by improperly joining a non-diverse 1 defendant with no genuine connection to the matter. Bounds v. Pine Belt Mental Health Care Res. , 2 593 F.3d 209, 215 (2d Cir. 2010). This rule is known as the doctrine of fraudulent joinder: 3 The doctrine of fraudulent joinder is meant to prevent plaintiffs from joining non4 diverse parties in an effort to defeat federal jurisdiction. Under the doctrine, courts 5 overlook the presence of a non-diverse defe ndant if from the pleadings there is no 6 possibility that the claims against that defend ant could be asserted in state court. The 7 defendant bears the heavy burden of proving the circumstances by clear and convincing 8 evidence, with all factual and legal ambiguities resolved in favor of plaintiff. 9
Id. (quoting Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc. , 373 F.3d 296, 302 (2d Cir. 2004)). 10 Notwithstanding the foregoing, if a jurisdictional defect exists at some time prior to a district 11 court’s entry of judgment, the court’s judgment is still valid if the jurisdictional defect is cured before 12 final judgment is entered. In Caterpillar, Inc. v. Lewis , 519 U.S. 61 (1996), the Supreme Court held 13 that a district court’s error in failing to remand an improperly removed case was not fatal to the 14 ensuing adjudication where federal jurisdiction existed when judgment was entered. According to 15
the Court: 16 Once a diversity case has been tried in fede ral court, with rules of decision supplied by 17 state law under the regime of Erie R. Co. v. Tompkins , 304 U.S. 64 (1938), 18 considerations of finality, efficiency, an d economy become overwhelming. . . . Despite 19 a federal trial court’s threshold denial of a motion to remand, if, at the end of the day 20 and case, a jurisdictionaldefect remains uncured, the judgment must be vacated. . . . In 21 this case, however, no jurisdictional defect lingered through judgment in the District 22 Court. To wipe out the adjudication postjudgm ent, and return to state court a case now 23 satisfying all federal jurisdictional requireme nts, would impose an exorbitant cost on our 24 dual court system, a cost incompatible withthe fair and unprotracted administration of 25 justice. 26
Id. at 75–77 (citations omitted; emphasis in original). 27 We have followed the principle set forth in Caterpillar . In Hallingby v. Hallingby , 574 F.3d 28 51 (2d Cir. 2009), we recognized that even though complete diversity was lacking at the time of 29 removal, a district court’s judgment on the me rits withstood attack because the non-diverse 30 defendant had been dismissed with prejudice from the action before entry of judgment. Id. at 31 56–57. According to Hallingby, “we view the critical issue to be whether the district court had 32 subject matter jurisdiction at any time before it rendered judgment.” Id. at 56; see also Briarpatch 33

14Ltd. , 373 F.3d at 301 (“Mindful that a district court’s erroneous failure to remand does not, by itself, 1 necessitate reversal, we view the critical issue to be whether the district court had subject matter 2 jurisdiction at any time before it rendered judgment.”). 3 Here, Brown argues that the District Court (1 ) failed to determine the existence of complete 4 diversity when it first obtained jurisdiction and (2) improperly retained jurisdiction of the action, 5 which involved “complex issues of Mississippi law” without first ruling on his motion to remand. 6 Brown’s first argument is without merit because, as discussed above, diversity existed between 7 Brown (Mississippi) and Eli Lilly (Indiana) at the timethat final judgment was entered in favor of Eli 8 Lilly. SeeCaterpillar , 519 U.S. at 75–77. Moreover, his reliance on Bounds is misplaced. In 9
Bounds , we found that the district court improperly granted summary judgment against non-diverse 10
defendants and thus remanded with instructions to the district court to remand the action to state 11 court. 593 F.3d at 218. Here, the District Court granted summary judgment in favor of the non12 diverse defendants, and Brown has failed timely to appeal those judgments. Thus when the District 13 Court entered final judgment as to Eli Lilly, there was no jurisdictional defect. 14 While it is true that “the existence of federal subject matter jurisdiction over an action 15 removed from state court to federal court is normally to be determined as of the time of removal,” 16 Hallingby , 574 F.3d at 56, the “critical issue” is whether there was complete diversity at any time 17 before the entry of judgment. Id. (internal quotation marks omitted). Although the better practice 18 is to verify jurisdiction in a diversity action early on, especially where complex issues of state law are 19 presented, seeAllen v. Ferguson , 791 F.2d 611, 616 (7th Cir. 1986), the elimination of non-diverse 20 defendants prior to judgment saves the action from dismissal for lack of jurisdiction. 21 III. Of the Claim against Eli Lilly 22 The only question before us, then, is whether summary judgment was properly granted in 23 favor of Eli Lilly. This Court reviews de novo a district court’s grant of summary judgment. FDIC 24
v. Great Am. Ins. Co. , 607 F.3d 288, 292 (2d Cir. 2010). Summary judgment must be granted where 25 the pleadings, the discovery and disclosure materials on file, and any affidavits show “that there is no 26

15genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 1 Fed. R. Civ. P. 56(a). Where the moving party demonstrates “the absence of a genuine issue of 2 material fact,” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986), the opposing party must come 3 forward with specific evidence demonstrating the existence of a genuine dispute of material fact. 4 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986). More specifically, it “must do more than 5 simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. 6 Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986), and “may not rely on conclusory allegations or 7 unsubstantiated speculation,” Great Am. Ins. Co. , 607 F.3d at 292. Where no rational finder of fact 8 “could find in favor of the nonmoving party because the evidence to support its case is so slight,” 9 summary judgment must be granted. Id. (internal quotation marks omitted). 10 The parties agree that Mississippi substantive law governs this action. In Mississippi, 11 products liability claims are governed by statute. Williams v. Bennett , 921 So. 2d 1269, 1273 (Miss. 12 2006) (citing Miss. Code Ann. § 11-1-63(a)(i)–(iii )). The Mississippi Supreme Court has described 13 the requisite elements as follows: 14 [A] claimant must make out a prima facie prod ucts liability case . . . by showing that a 15 product was defective; that the defect caused the product to be unreasonably dangerous; 16 that the unreasonably dangerous defect cause d the harm complained of; and that the 17 defective condition existed at the time the product left the control of the manufacturer 18 or seller. 19
Williams , 921 So. 2d at 1273. A plaintiff also must establish that the defective and unreasonably 20 dangerous condition of the product proximately caused the injury for which recovery is sought. See 21 Moffett v. SmithKline Beecham Corp. , No. 03-cv-532, 2005 U.S. Dist. LEXIS 34326, at *7 (S.D. 22 Miss. June 9, 2005). For a plaintiff in a prescrip tion drug case, the statute requires the plaintiff to 23 demonstrate that the injury would not have occurred had the drug not been administered. Bennett 24
v. Madakasira , 821 So. 2d 794, 807 (Miss. 2002). Further, Mississippi law requires expert medical 25 testimony where causation is an issue in a complicated case because “such determinations are 26 generally outside the scope of the average experi ences and qualifications of most lay jurors.” 27

16Jackson v. Bayer Corp. , No. 06-cv-101, 2007 U.S. Dist. LEXIS 65564, at *11 (S.D. Miss. Sept. 4, 1 2007). 2 Here, the District Court found that “[n]o expert or evidence has connected [Ms. Brown’s] 3 cause of death or any medical problem to Zyprexa. Her claim cannot stand. . . . The evidence does 4 not support any link to Zyprexa and an expert would not help.” In coming to this conclusion, the 5 court noted that Brown had not produced an expert report as required. 2 However, even if Brown 6 had produced the required expert report, the District Court apparently was persuaded that, based on 7 the limited evidence in the record, even an expert report could not help Brown in making out his 8

case. Moreover, the court found unfounded Brown’s contention that Lilly had not met its burden 9 on summary judgment because it did not offer any evidence disproving a link between Zyprexa and 10 Ms. Brown’s death or health problems. As describe d above, however, it is the plaintiff’s burden to 11 make out a prima facie case. SeeWilliams , 921 So. 2d at 1273. 12 On appeal, Brown does not challenge the findings of the District Court, but rather argues 13
that because the court failed to consider the a ctions of Noxubee and Baptist together with the 14 actions of Lilly, the court “was without the nece ssary evidentiary predicate to consider a vast 15 majority of Lilly’s argument in support of its mo tion for summary judgment.” This argument fails 16 because we have determined that the time to appeal the court’s grant of summary judgment in favor 17 of Noxubee and Baptist has passed in any event. Moreover, with respect to the remaining 18 defendant, Eli Lilly, Brown has offered no argume nt as to how Zyprexa proximately caused Ms. 19 Brown’s death or why the District Court erred in finding that Brown failed to make out a prima facie 20
case. SeeBennett , 821 So. 2d at 807 (requiring a plaintiff in a prescription drug case to prove 21 causation). These arguments are therefore deemed abandoned. SeeYueqing Zhang v. Gonzales , 22

2Under Case Management Order 32, and pursuant to Mississippi pre-suit requirements, Brown was directed to produce a “case-specific expert liability report.” When the deadline passed without Brown having supplied the requisite report, the parties submitted a joint propos al that Brown would either produce an expert report or dismiss the claims against Lilly. Apparently, Brown’s counsel stated that he would not be investing in an expert evaluation and was leaving the matter to Brown,as the plaintiff, to handle. Despite not having produced the report, Brown did not dismiss the claims against Lilly.
17426 F.3d 540, 546 n.7 (2d Cir. 2005) (deeming an argument abandoned because the petitioner only 1 dedicated “a single conclusory sentence to the argument”). The District Court did not err in 2 granting summary judgment in favor of Eli Lilly. 3
IV. Conclusion 4 For the foregoing reasons, the appeals from the judgments entered in favor of Noxubee 5 General Hospital and Baptist Memorial Hospital are dismissed, and the judgment dismissing the 6 action against Eli Lilly and Company is affirmed. 7

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