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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

May 23, 2016

IN RE BARD IVC FILTERS PRODUCTS LIABILITY LITIGATION MDL No. 2641
v.
C.R. Bard, Inc., et al., Defendants. This Relates to Bianca Fraser-Johnson, et al., Plaintiffs,

          ORDER

          David G. Campbell United States District Judge

         This case was originally filed in Delaware state court, and Defendants removed it to federal court. After removal but before consolidation in this MDL, Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. filed a motion to sever and remand Plaintiffs’ claims against the nondiverse Defendants. See Docs. 5, 6 in Fraser-Johnson v. C.R. Bard, Inc., No. 2:16-cv-00336-DGC (D. Del. Oct. 29, 2015).[1] That motion is fully briefed. See D. Del. Docs. 10; 11; 13. After transfer to this Court, Plaintiffs filed a motion to remand. Doc. 1077. That motion is fully briefed. Docs. 1217; 1354. Plaintiffs’ request for oral argument is denied because it will not aid in the Court’s decision. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir.1998). For the following reasons, the Court will grant Plaintiffs’ motion to remand.

         I. Background.

         The allegations of Plaintiffs’ complaint are taken as true for purposes of this motion. Plaintiffs Bianca Fraser-Johnson and Michael Johnson are a married couple who reside in Delaware. Doc. 1077-1 at 2, ¶ 1. Defendant C.R. Bard, Inc. is a corporation organized under the laws of New Jersey with its principal place of business in New Jersey. Id. at ¶ 2. Defendant Bard Peripheral Vascular, Inc. is an Arizona corporation and a wholly-owned subsidiary of C.R. Bard, Inc., with a principal place of business in Arizona. Id. at 3, ¶ 4. Defendants Christiana Care Health Services, Inc. and Christiana Health System, Inc. (collectively “Christiana Care”) are Delaware corporations that owned, operated, managed, or controlled hospital facilities in Delaware. Id. at 3-4, ¶¶ 8-10. Defendant Thomas Bauer, M.D. is a physician who specializes in thoracic surgery and is licensed to practice medicine in Delaware. Id. at 4, ¶ 12. Defendant Cynthia Heldt, M.D. is a physician who specializes in internal medicine and is licensed to practice medicine in Delaware. Id. at ¶ 15. Dr. Bauer and Dr. Heldt were employed or affiliated with Christiana Care. Id. at ¶¶ 13, 16. Plaintiff Bianca Fraser-Johnson (“Fraser-Johnson”) was a patient of Christiana Care, Dr. Bauer, and Dr. Heldt. Id. at 5, ¶ 18.

         On July 5, 2005, Fraser-Johnson had a Bard Filter (“Filter”) implanted in her at the University of Pennsylvania Hospital in Philadelphia, Pennsylvania. Id. at ¶ 19. In July of 2013, Fraser-Johnson reported significant chest pain to Dr. Bauer. Id. at ¶ 20. On July 10, 2013, Dr. Bauer surgically removed a 4.5 centimeter wire from Fraser-Johnson’s chest at one of Christiana Care’s facilities in Delaware. Id. Neither Dr. Bauer nor Dr. Heldt determined the source of the wire removed from Fraser-Johnson’s body. Id. at ¶¶ 21-22. In April or May of 2015, Fraser-Johnson reported significant chest pain to Dr. Heldt. Id. at ¶ 23. Dr. Heldt advised Fraser-Johnson that she should be evaluated by an interventional radiologist at once. Id. Consultation with the radiologist revealed that the Bard Filter had fractured, causing portions of it to migrate. Id. at ¶ 24. Fraser-Johnson underwent surgeries on June 4 and 9, 2015 to remove the Filter and related debris from her body. Id.

         On September 23, 2015, Plaintiffs filed this action against Defendants in Delaware’s New Castle County Superior Court. See Id. at 2. On October 23, 2015, Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively “Bard”) removed the case to federal court in the District of Delaware. See D. Del. Doc. 1. On October 29, 2015, Bard requested an order severing Plaintiffs’ claims against it from claims against the nondiverse Defendants, and remanding the claims against the nondiverse Defendants to Delaware state court. See D. Del. Docs. 5; 6. On February 4, 2016, the United States Judicial Panel on Multidistrict Litigation transferred Plaintiffs’ case from the District of Delaware to this Court for inclusion in this MDL. See Doc. 562.[2] On March 12, 2016, Plaintiffs’ filed their motion to remand the case to Delaware state court. See Doc. 1077.

         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 the fraudulent joinder of non-diverse defendants will not defeat removal on diversity grounds, In re Briscoe, 448 F.3d 201, 215-16 (3d Cir. 2006).[3] 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). A “removing party carries a heavy burden of persuasion in making this showing” because “removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand.” Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) (internal citations and quotation marks omitted); see 28 U.S.C. § 1447(c).

         III. Analysis.

         A. Plaintiffs’ Motion to Remand.

         Plaintiffs argue that remand to Delaware state court is appropriate because: (1) the nondiverse Defendants were not fraudulently misjoined; (2) complete diversity is lacking; (3) severance of the nondiverse Defendants is inappropriate; and (4) it promotes public policy. Plaintiff seeks to recover attorneys’ fees should the Court conclude that Bard’s removal was improper.

         1. Fraudulent Joinder.

         The doctrine of fraudulent joinder provides a helpful reference point for understanding the doctrine of fraudulent misjoinder.[4] 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 Third Circuit, a “removing defendant may avoid remand only by demonstrating that the non-diverse party was fraudulently joined.” Batoff, 977 F.2d at 851. “Joinder is fraudulent where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants or seek a joint judgment.” Id. (quotation marks omitted; citing Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990); Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985)). “If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court.” Boyer, 913 F.2d at 111. “[T]he inquiry into the validity of a complaint triggered by a motion to dismiss under Rule 12(b)(6) is more searching than that permissible when a party makes a claim of fraudulent joinder.” Batoff, 977 F.2d at 852. Thus, the standard is whether a claim is “wholly insubstantial and frivolous.”[5] Id. Contested issues of fact and uncertainties in controlling substantive law are to be resolved in favor of the plaintiff. Boyer, 913 F.2d at 111 (citations omitted).

         2. ...


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