United States District Court, D. Arizona
IN RE: BARD IVC FILTERS PRODUCTS LIABILITY LITIGATION. MDL No. 2641
C.R. Bard, Inc., et al., Defendants. This Order Relates to Wayne Ruden, Plaintiff,
G. CAMPBELL, District Judge.
case was originally filed in California state court, and
Defendants removed it to federal court. Plaintiff Wayne Ruden
has filed a motion to remand under 28 U.S.C. Â§ 1447(c). Doc.
603. The motion is fully briefed. Docs. 887; 993. Defendant
Sutter West Bay Hospitals, d/b/a California Pacific Medical
Center ("CPMC"), has moved to dismiss
Plaintiff's claims under to Rules 12(b)(6) and 12(e) of
the Federal Rules of Civil Procedure, or, in the alternative,
to remand to California state court under 28 U.S.C. Â§
1447(c). Doc. 870. The motion is fully briefed. Docs. 894;
995; 1076. The parties' requests for oral argument are
denied because the issues have been fully briefed and oral
argument will not aid the Court's decision. See
Fed.R.Civ.P. 78(b); Partridge v. Reich, 141 F.3d
920, 926 (9th Cir. 1998). The Court will grant
Plaintiff's and CPMC's motions to remand and allow
the state court to rule on CPMC's motion to dismiss.
allegations of Plaintiff's complaint are taken as true
for purposes of this motion. Plaintiff Wayne Ruden is a
resident of California. Doc 994-2 at 3, Â¶ 3. Defendant C.R.
Bard, Inc. is a corporation organized under the laws of
Delaware with a principal place of business in New Jersey.
Id. at 4, Â¶ 7. Defendant Bard Peripheral Vascular,
Inc. is a wholly-owned subsidiary of C.R. Bard, Inc. with a
principal place of business in Arizona. Id. at 5, Â¶
8. Defendant CPMC is a general medical and surgical hospital
with a principal place of business in California.
Id., Â¶ 9.
March 2004, Plaintiff had a Bard Recovery Filter
("Filter") implanted in his inferior vena cava at
one of CPMC's facilities in San Francisco, California.
Id. at 5, Â¶ 9; 10, Â¶ 31. In March 2015, Plaintiff
learned that the Filter had fractured, "causing the
embolization of two arm fragments into the proximal right
pulmonary arteries, and the embolization of one fractured arm
fragment into the right atrium of his heart."
Id. at 10, Â¶ 31. Plaintiff explored whether the
fragments could be surgically removed, but experts at
Stanford University refused to perform the procedure because
it was too risky. Doc. 603 at 7. As a result, Plaintiff must
undergo regular medical monitoring. Doc. 994-2 at 10, Â¶Â¶ 31,
October 7, 2015, Plaintiff filed this action against
Defendants C.R. Bard, Inc., Bard Peripheral Vascular, Inc.,
and CPMC in San Francisco County Superior Court. See
Doc. 994-2 at 2-28. On November 12, 2015, C.R. Bard, Inc. and
Bard Peripheral Vascular, Inc. (collectively
"Bard") removed the case to federal court in the
Northern District of California. See Doc. 604-3
at 2-13. Following removal, Plaintiff filed a first amended
complaint. See Doc. 994-1 at 2-30. On February 4,
2016, the United States Judicial Panel on Multidistrict
Litigation transferred Plaintiff's case from the Northern
District of California to this Court for inclusion in MDL No.
2641. See Doc. 562 at 3.
case brought in state court may be removed to the federal
court in the district where the action is pending if the
federal district court would have had original jurisdiction.
28 U.S.C. Â§ 1441(a). Removal based on diversity jurisdiction
is not proper if diversity is lacking or "if any of the
parties in interest properly joined and served as defendants
is a citizen of the State in which such action is brought,
" 28 U.S.C. Â§ 1441(b)(2), but "fraudulently joined
defendants will not defeat removal on diversity grounds,
" Ritchey v. Upjohn Drug Co., 139 F.3d 1313,
1318 (9th Cir. 1998) (citations omitted). Section 1441 is to
be strictly construed against removal. See
Syngenta Crop Protection, Inc. v. Henson, 537 U.S.
28, 32 (2002); Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100, 108-09 (1941). This "strong
presumption" against removal "means that the
defendant always has the burden of establishing that removal
is proper." Gaus v. Miles, Inc., 980 F.2d 564,
566 (9th Cir. 1992) (citation omitted). Federal jurisdiction
must be rejected, and the case remanded to state court,
"if there is any doubt as to the right of removal in the
first instance." Id .; see 28 U.S.C. Â§ 1447(c).
Plaintiff's Motion to Remand.
presents three arguments for why remand to California state
court is appropriate: (1) removal was not proper because
Defendant CPMC did not consent to removal; (2) the Ninth
Circuit has not recognized the doctrine of fraudulent
misjoinder, and, even if it were valid, the doctrine would
not apply in this case; and (3) CPMC is a non-severable,
indispensable party that is not diverse. Plaintiff seeks to
recover attorneys' fees should the Court conclude that
Bard's removal was improper. The Court will consider
Plaintiff's fraudulent misjoinder argument first.
doctrine of fraudulent joinder provides a helpful
reference point for understanding the doctrine of fraudulent
misjoinder. It is well-settled that "[f]ederal courts
may and should take such action as will defeat attempts to
wrongfully deprive parties entitled to sue in the [f]ederal
courts of the protection of their rights in those
tribunals." Ala. Great S. Ry. Co. v. Thompson,
200 U.S. 206, 218 (1906). Fraudulent joinder and fraudulent
misjoinder have been developed to carry out this mandate.
Ninth Circuit, "[j]oinder of a non-diverse defendant is
deemed fraudulent, and the defendant's presence in the
lawsuit is ignored for purposes of determining diversity, if
the 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." Morris v. Princess
Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001)
(quotation marks, alterations, and citation omitted). Thus,
"the fraudulent joinder inquiry focuses on the validity
of the legal theory being asserted against the non-diverse
defendant, " without requiring a finding of subjective
fraudulent intent by the plaintiff. Davis v. Prentiss
Props. Ltd., Inc., 66 F.Supp.2d 1112, 1114 (C.D. Cal.
1999) (quotation marks and citation omitted).
courts in the Ninth Circuit have noted that "[t]he
problem with the fraudulent joinder inquiry is that the Court
must consider the validity of a claim that defeats diversity,
a claim over which the Court has no jurisdiction."
Id. "Only by considering the merits of the
non-diverse claim can the Court be assured of jurisdiction
over any of the claims in the case." Id.
"The Court must therefore walk a very fine line: it must
consider the merits of a matter without assuming jurisdiction
over it." Id. To accommodate this balancing
act, courts have noted that "some room must exist
between the standard for dismissal under Rule 12(b)(6), for
example, and a finding of fraudulent joinder."
Id. at 1115. To constitute fraudulent joinder,
claims against the non-diverse party must not only be
unsuccessful, they must be untenable from the beginning.
Id. The Davis case concluded that Rule 11
of the Federal Rules of Civil Procedure provides an
appropriate standard. Id. Under Rule 11, "a
party whose claim is not frivolous may legitimately present
that claim to an appropriate court to have the claim
considered." Id. "The fact that the party
may lose or even the fact that the party will probably lose
does not affect the party's right to present its claim,
make its arguments, and receive a ruling from a court with
proper jurisdiction." Id.
even "where it is doubtful whether the complaint states
a cause of action against the resident defendant, the doubt
is ordinarily resolved in favor of the retention of the case
in state court." Ballesteros v. Am. Standard Ins.
Co. of Wisc.,436 F.Supp.2d 1070, 1072 (D. Ariz. 2006)
(quoting Albi v. Street & Smith Publ'ns, 140
F.2d 310, 312 (9th Cir. 1944)). Indeed, even a "glimmer
of hope' that plaintiff can establish [the] claim is
sufficient to preclude application of [the] fraudulent
joinder doctrine." Id. (quoting Mayes v.
Rapoport,198 F.3d 457, 466 (4th Cir. 1999)). This
fraudulent joinder standard based on Rule 11 has been cited
with approval throughout the Ninth Circuit. SeeMirchandani v. BMO Harris Bank NA, No.
CV11-02286-PHX-GMS, 2011 WL 6019311, at *3 (D. Ariz. Dec. 5,
2011); Bellecci v. GTE Sprint Commc'ns Corp.,
No. C-02-03974-WHA, 2003 WL 151538, at *3 (N.D. Cal. Jan. 14,
2003); see ...