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 Relates to Bianca Fraser-Johnson, et al., Plaintiffs,
G. Campbell United States District Judge
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). 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.
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.
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.
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.
On March 12, 2016, Plaintiffs’ filed their motion to
remand the case to Delaware state court. See Doc.
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). 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. §
Plaintiffs’ Motion to Remand.
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.
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.
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.” 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).