MARK J. DINSMORE, District Judge.
Before the Court is Defendant's Motion to Compel Production of Discovery. [Dkt. 29.] However, before that issue may be addressed, the Court must first address whether it has subject matter jurisdiction over this case. Accordingly, the Magistrate Judge recommends that the matter be
On April 7, 2014, Larry and Christine Johnson ("Plaintiffs") filed their Complaint for Damages in the Marion County Superior Court alleging products liability against Defendant Globus Medical, Inc. ("Globus") and medical malpractice against Defendant Anonymous Physician (JKC) ("Physician"). [Dkt. 1-1.] One month later, Globus removed the case to this Court on account of the Physician's anonymity and the completely diversity between Plaintiffs and Globus. [Dkt. 1.] However, on May 29, 2014 Physician's counsel filed a notice of appearance before the Court, and the Magistrate Judge issued an Order to Show Cause why, if the Physician is a resident of Indiana, the case should not be remanded for lack of subject matter jurisdiction. [Dkt. 13.] In the Physician's Verified Response to the Order to Show Cause, his or her counsel, Brett T. Clayton, affirmed and stated that "Anonymous Physician (JKC) is a citizen of the State of Indiana." [Dkt. 14.] Despite this affirmation of lack of complete diversity, Globus filed a Response to the Court's Order to Show Cause, asserting that the Physician's residency should still be ignored upon consideration of the Court's jurisdiction over the matter. [Dkt. 15.] Globus has now moved to compel the production of discovery [Dkt. 29], but before ruling on the motion the Court must first address whether it has jurisdiction over the matter.
"It is well settled that the jurisdiction of the federal courts is limited; no presumption of federal jurisdiction exists." Preston v. Purtell, 410 F.2d 234, 236 (7th Cir. 1969). Accordingly, it is the district court's "nondelegable duty to police the limits of federal jurisdiction with meticulous care." Mkt. St. Associates Ltd. P'ship v. Frey, 941 F.2d 588, 590 (7th Cir. 1991). When complete diversity exists among the parties and the amount in controversy exceeds $75,000, the district court has subject matter jurisdiction over a case even if federal law is not in question. 28 U.S.C. § 1332(a). However, if any one plaintiff and any one defendant are citizens of the same State, jurisdiction cannot be based upon 28 U.S.C. § 1332, and "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case
Globus first asserts that federal jurisdiction is appropriate pursuant to the plain language of Title 28 of the United States Code, which declares that "[i]n determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded." 28 U.S.C. § 1441(b).
Second, Globus reiterates that "Plaintiffs have used a fictitious name" pursuant of the requirements of the MMA and that such naming falls under the exception from diversity jurisdiction consideration delineated in § 1441. Again, Globus is confusing the anonymous naming of a known defendant for confidentiality purposes with the naming of a fictitious defendant who has yet to be identified and may not even exist. The terms of the MMA are clear: "a claimant may commence an action in court for malpractice at the same time the claimant's proposed complaint is being considered by a medical review panel," but the "complaint filed in court may not contain
Globus then walks through the reasoning in Thornburg v. Stryker Corporation, also of the Southern District of Indiana, in support of its interpretations of the MMA and § 1441, which the Court has addressed above. [Dkt. 15 at 3-4.] The Court acknowledges that, in Thornburg, the court noted that "the Court may not consider the anonymous Indiana Defendants' citizenship to assess the existence of diversity jurisdiction." 1:05-CV-1378-RLY-TAB, 2006 WL 211952 (S.D. Ind. Jan. 27, 2006). Since then, however, the court has found that a known, albeit anonymous, defendant cannot be disregarded as "fictitious" when the nondiverse citizenship is known to the court, remanding the matters with MMA claims to state court. See Miller v. Anonymous Corp. A, 1:12-CV-562-TWP-DML, 2012 WL 3236304 (S.D. Ind. Aug. 7, 2012); Caywood v. Anonymous Hosp., 856 F.Supp.2d 1001 (S.D. Ind. 2012) aff'd, 1:11-CV-1313-TWP-MJD, 2012 WL 3264572 (S.D. Ind. Aug. 9, 2012). Recently, Judge DeGuilio of the Northern District of Indiana did follow Thornburg when presented with a similar argument, but in that case the defendants in question, Defendants John Does 1-10, were truly unknown. Kennedy v. Schneider Elec., 2:12-CV-122-JD, 2013 WL 683360 (N.D. Ind. Feb. 22, 2013). Indeed, when "the actual identities of the anonymous hospital and doctor are not known or before the Court," remand is not appropriate. Ossim v. Anulex Technologies, Inc., 1:14-CV-00254-TWP-DKL, 2014 WL 2876760 (S.D. Ind. June 24, 2014) reconsideration denied, 1:14-CV-00254-TWP-DKL, 2014 WL 4437501 (S.D. Ind. Sept. 9, 2014).
The recent case law reviewed above clearly distinguishes matters where the citizenship of the anonymous defendant is known, as is the case here, from cases where the defendant is truly unknown to both the Court and to the parties. Here, not only is the identity of the Physician known to the parties, but counsel for the Physician has filed an appearance on his or her behalf. Further, in response to the Court's Order to Show Cause, the Physician's counsel certified that the Physician is a resident of the State of Indiana. [Dkt. 14.] Because the Plaintiffs are also residents of the State of Indiana [Dkt. 1-1 at 1], it is abundantly clear to the Court that diversity jurisdiction does not exist. Accordingly, subject-matter jurisdiction is lacking, and the Court, pursuant to federal law, must remand the case to state court. 28 U.S.C. § 1447(c).
In a final effort to salvage federal jurisdiction,
For the aforementioned reasons, the Court should order that the matter be