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In re Bard Ivc Filters Products Liability Litigation

United States District Court, D. Arizona

May 4, 2016

C.R. Bard, Inc., et al., Defendants. This Order Relates to Wayne Ruden, Plaintiff,


          DAVID G. CAMPBELL, District Judge.

         This 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. § 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. § 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.

         I. Background.

         The 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, ¶ 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, ¶ 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, ¶ 8. Defendant CPMC is a general medical and surgical hospital with a principal place of business in California. Id., ¶ 9.

         In 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, ¶ 9; 10, ¶ 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, ¶ 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, ¶¶ 31, 33.

         On 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.[1] 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.[2]

         II. Legal Standard.

         A civil 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. § 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. § 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. § 1447(c).

         III. Analysis.

         A. Plaintiff's Motion to Remand.

         Plaintiff 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.

         1. Fraudulent Joinder.

         The doctrine of fraudulent joinder[3] 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.

         In the 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).

         District 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.

         Thus, 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 ...

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