Opinion
Civil Action No. 04-0117, Section "S" (5).
December 9, 2004
ORDER AND REASONS
IT IS ORDERED that summary judgment is GRANTED, dismissing defendant Touro Infirmary, sua sponte. IT IS FURTHER ORDERED that Larroquette's motion for certification under Rule 54(b) (Document 32) is hereby GRANTED.
A. Background.
Between 1979 and 2003, Larroquette worked as a Certified Registered Nurse Anesthetist. Larroquette alleges that during this time, she was exposed to latex gloves manufactured by Cardinal Health 200, Inc., Ansell Healthcare Products, Inc., Kimberly Clark Corporation, and Johnson Johnson Medical, Inc. Larroquette alleges that she experienced anaphylactic reactions caused by her exposure to latex in 2000 and 2003, and that she has been diagnosed with a Type I latex allergy. As a result of her latex allergy, she is totally disabled from working in a hospital environment.
Larroquette moved to remand the case to state court. On May 17, 2004, the court denied Larroquette's motion to remand, finding that Touro had been fraudulently joined as a defendant. The case was thereafter transferred to the United States District Court for the Eastern District of Pennsylvania for inclusion in the multidistrict In re Latex Gloves Products Liability Litigation. Following consolidated pretrial proceedings, the case was remanded to the Eastern District of Louisiana on September 13, 2004. Larroquette has now moved to certify the court's denial of her motion to remand under Rule 54(b).
B. Analysis.
1. Status of defendant Touro.
In determining whether Larroquette had fraudulently joined Touro as a defendant, the court considered whether there was a possibility that she had a valid cause of action against it. McKee v. Kansas City Southern Railway Co., 358 F.3d 329, 334 (5th Cir. 2004). Because the court found that Larroquette fraudulently joined Touro, there is no possibility she may recover against it, and summary judgment dismissing Touro, sua sponte is hereby granted. See Ford v. Elsbury, 32 F.3d 931, 934 n. 4 (5th Cir. 1994) (in fraudulent joinder context, summary judgment "will always be appropriate in favor of a defendant against whom there is no possibility of recovery").
2. Rule 54(b).
Rule 54(b) provides that if "more than one claim for relief is presented in an action," the court "may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Construing plaintiff's request for 54(b) certification as a request for certification of the grant of summary judgment dismissing Touro Infirmary sua sponte, Rule 54(b) certification is hereby granted.
The court finds that there is no just reason for delaying entry of a final judgment against Touro to allow plaintiff to appeal the court's decision that Touro was fraudulently joined. Absent certification this case will proceed to trial without Touro's presence as a defendant. The plaintiff's motion is granted to avoid the hardship and injustice of a potentially needless retrial if Touro is found not to have been fraudulently joined. See PYCA Industries, Inc. v. Harrison County Wastewater Management District, 81 F.3d 1412, 1421 (5th Cir. 1996) (holding that a court "should grant certification only when there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal").