                                                                           FILED
                           NOT FOR PUBLICATION                             FEB 24 2016

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JENNIFER KWASNIEWSKI,                            No. 13-17390
individually and as Special Administrator
of the ESTATE OF ANDREW A.                       D.C. No. 2:12-cv-00515-GMN-
KWASNIEWSKI; TAYLOR L.                           NJK
KWASNIEWSKI; DYLAN A.
KWASNIEWSKI, a minor, by and through
Jennifer Kwasniewski, his mother and             MEMORANDUM*
guardian,

              Plaintiffs - Appellants,

 v.

SANOFI-AVENTIS U.S., LLC, a
Delaware limited liability company;
NADINE LEONE, MFT; BEHAVIORAL
HEALTHCARE OPTIONS, INC., a
Nevada corporation,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                 Gloria M. Navarro, Chief District Judge, Presiding

                     Argued and Submitted February 10, 2016
                            San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: THOMAS, Chief Judge and SCHROEDER and NGUYEN, Circuit Judges.

         This is an interlocutory appeal of the district court’s dismissal of non-diverse

defendants upon a finding of fraudulent joinder. Plaintiffs are the family of Andrew

Kwasniewski, who committed suicide after taking Ambien. Plaintiffs originally filed this

case in state court against the manufacturer, Sanofi-Aventis; a marriage and family

therapist, Nadine Leone (“Leone”), who treated Kwasniewski before his suicide; and

Leone’s employer, Behavioral Healthcare Options, Inc. (“BHO”). The district court

denied Plaintiffs’ motion to remand the case to state court, holding that the therapist and

BHO were fraudulently joined to defeat diversity jurisdiction.

         This court reviews a denial of a motion to remand de novo, Hunter v. Philip

Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009), a denial of a motion for

reconsideration for abuse of discretion, Kona Enters., Inc. v. Estate of Bishop, 229 F.3d

877, 883 (9th Cir. 2000), and a denial of a motion to amend under 28 U.S.C. § 1447(e)

regarding joinder for abuse of discretion, Newcombe v. Adolf Coors Co., 157 F.3d 686,

691 (9th Cir. 1998). A defendant is fraudulently joined when “plaintiff fails to state a

cause of action against a resident defendant, and the failure is obvious according to the

settled rules of the state.” McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir.

1987).




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       Plaintiffs argue that their malpractice claim against Leone included the theory that

Leone negligently failed to diagnose Kwasniewski as suicidal, and that the district court

erred in holding they alleged only a failure to warn about Ambien. Plaintiffs rely on only

one sentence in their complaint. The district court correctly explained that when the

sentence is taken in context, the allegation is that the therapist fell below the standard of

care by not warning Mr. Kwasniewski about the side effects of Ambien. Plaintiffs claim

against Leone was therefore a failure to warn. The district court determined that no such

duty exists under Nevada law.

       Plaintiffs next contend that even if they did not state such a malpractice claim in

the complaint, the possibility of such a claim defeats fraudulent joinder. Our reasoning in

Hunter is to the contrary. See 582 F.3d at 1046. We there looked to the complaint to

determine whether the plaintiff had stated a cause of action against a resident defendant.

Id. The court is not required to speculate about possible claims.

       The district court did not err in holding that under Nevada law, there is no duty to

warn on the part of a non-prescribing therapist. See Klasch v. Walgreen Co., 264 P.3d

1155, 1158–61 (Nev. 2011). The Nevada Supreme Court in Klasch recognized that in

limited circumstances, a pharmacist dispensing a prescription medication may have a duty

to warn if the pharmacist is aware of a consumer’s specific risk such as an allergy or

contraindication with other medications the plaintiff is taking. Id. at 1160. No such


                                              3
exception has been recognized for therapists. As the court said in Klasch, “It is the

physician who is in the best position to decide when to use and how and when to inform

his patient regarding risks and benefits pertaining to drug therapy.” Id. at 1158 n.9

(citation omitted).

       We recognize that affirmative defenses, which often “require[] an inquiry into the

merits of a case,” cannot be considered as a part of the fraudulent joinder analysis. See

Hunter, 582 F.3d at 1044–45. Klasch involved the learned intermediary doctrine, an

affirmative defense. Here, we refer to Klasch only to establish whether a duty to warn, a

fundamental aspect of Plaintiffs’ claim against the non-diverse defendants, exists under

Nevada law.

       After the dismissal of Leone and BHO, Plaintiffs sought leave to amend the

complaint to add a malpractice claim. The district court properly denied the motion

because the proposed amendment sought to rejoin diversity-destroying defendants under

the analysis required by 28 U.S.C. § 1447(e).

       BHO requests that the panel sanction Plaintiffs for filing a frivolous appeal. “An

appeal is frivolous if the results are obvious, or the arguments of error are wholly without

merit.” Maisano v. United States, 908 F.2d 408, 411 (9th Cir. 1990) (citation omitted).

Sanctions are not warranted.

       AFFIRMED.

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