In In re DePuy Orthopaedics, Inc., Case No. 1:12-dp-20699 (6th Cir. March 27, 2019), the Sixth Circuit vacated the district court?s orders in 12 consolidated cases conditionally dismissing them on forum non conveniens grounds, and remanded them for further proceedings consistent with its opinion.
These 12 cases were part of the MDL litigation pending in Ohio involving some 8,500 plaintiffs with over 12,000 claims that certain DePuy hip implants were defective. They were filed in 2012 by Spanish residents and either Spanish or British citizens with short form complaints pursuant to the trial court?s standing orders, and diversity was the asserted jurisdictional basis. The claims sat for several years until defendants moved to dismiss based upon on forum non conveniens, which the trial court granted. Plaintiffs appealed and the Sixth Circuit bounced them out for lack of diversity jurisdiction because one of the defendants, DePuy, was a British company and none of the plaintiffs was a US resident. In sum, there must be complete diversity on both sides, meaning there cannot be only foreign plaintiffs and a foreign defendant, along with US resident defendants. The Court stated:
Before argument, we asked the parties whether the district court had diversity jurisdiction. The plaintiffs have since called this jurisdictional issue a ?technicality,? noting that ?[t]his was the first time the issue of subject matter jurisdiction? had been raised.
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Indeed, if citizens of different states are on both sides of a dispute, most courts hold that ? 1332(a)(3) even permits foreign citizens to join as additional parties on both sides.
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What happens, though, if foreign citizens are on both sides of a dispute but a state citizen is on only one side (say, a Spanish plaintiff sues defendants from Ohio and the United Kingdom)? This fact pattern does not fit ? 1332(a)(3) because citizens of different states do not fall on both sides (as in the example involving an Ohio citizen suing a Michigan citizen and a Spanish citizen). And it does not fit ? 1332(a)(2) because we have read that provision to require ?complete? diversity?meaning that only state citizens are on one side of the dispute and only foreign citizens are on the other (as in the example involving a Spanish plaintiff suing an Ohio defendant).