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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 Ronald Wolfe, Plaintiff,

          ORDER

          David G. Campbell United States District Judge

         This case was originally filed in Ohio state court, and Defendants removed it to federal court. After removal but before consolidation in this MDL, Defendants filed a motion to sever and remand the claims against Defendant Lawrence Schmetterer, M.D. See Docs. 4, 5 in Wolfe v. C.R. Bard, Inc., No. 2:16-cv-00786-DGC (N.D. Ohio Mar. 11, 2016).[1] Plaintiff responded. See N.D. Ohio Doc. 8. Plaintiff also filed a motion to remand (N.D. Ohio Doc. 7), which Defendants opposed (Doc. 1323). No party has requested oral argument, and 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). For the following reasons, the Court will grant the motion to remand.

         I. Background.

         The allegations of Plaintiff’s complaint are taken as true for purposes of this motion. Plaintiff Ronald Wolfe is a resident of Ohio. N.D. Ohio Doc. 1-2 at 5. Defendant C.R. Bard, Inc. is a corporation organized under the laws of Delaware with its principal place of business in New Jersey. Id. at 7-8, ¶ 9. 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 8, ¶ 10. Defendant Lawrence Schmetterer, M.D. is a licensed physician who specializes in vascular surgery and resides in Ohio. Id. at 9, ¶ 12.

         On or about March 30, 2012, Plaintiff had a Bard Eclipse Filter implanted in his inferior vena cava by Dr. Schmetterer in Youngstown, Ohio. Id. at 7, ¶ 8. The Eclipse Filter subsequently failed - it migrated out of position, tilted off center, penetrated the inferior vena cava, failed to protect against pulmonary emboli, and caused blood clots to develop. Id. The Eclipse Filter cannot be removed. Id. As a result, on or about March 24, 2015, Plaintiff had a Bard Meridian Filter implanted above the Eclipse Filter. Id. The Meridian Filter has failed in a manner similar to the Eclipse Filter. Id.

         On February 1, 2016, Plaintiff filed this action against Defendants C.R. Bard, Inc., Bard Peripheral Vascular, Inc., and Dr. Lawrence Schmetterer in Ohio’s Mahoning County Court of Common Pleas. See Id. at 5. On March 9, 2016, C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively “Bard”) removed the case to federal court in the Northern District of Ohio. See N.D. Ohio Doc. 1 at 1-10. On March 11, 2016, Bard moved for an order severing the claims against it from the claims against Dr. Schmetterer, and remanding the claims against Dr. Schmetterer to Ohio state court.[2] See N.D. Ohio Docs. 4-5. On March 18, 2016, Plaintiff filed a motion to remand the proceedings to Ohio state court. See N.D. Ohio Doc. 7. On March 21, 2016, the United States Judicial Panel on Multidistrict Litigation transferred the case for inclusion in this MDL. See Doc. 1156.

         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, ” Coyne v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) (citations omitted).[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 defendant seeking to remove a case to federal court carries the burden of establishing diversity jurisdiction, and “[a]ll doubts as to the propriety of removal are resolved in favor of remand.” Coyne, 183 F.3d at 493 (citation omitted); see 28 U.S.C. § 1447(c).

         III. Analysis.

         A. Plaintiff’s Motion to Remand.

         Plaintiff argues that remand to Ohio state court is appropriate because: (1) there is no diversity of citizenship on the face of the complaint; (2) the Sixth Circuit has not adopted fraudulent misjoinder, and, even if it did adopt the doctrine, this would not be an appropriate case to apply it; and (3) public policy weighs in favor of remand. The Court will consider Plaintiff’s fraudulent misjoinder arguments first.

         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 Sixth Circuit, “fraudulent joinder of non-diverse defendants will not defeat removal on diversity grounds.” Coyne, 183 F.3d at 493 (citations omitted). “To prove fraudulent joinder, the removing party must present sufficient evidence that a plaintiff could not have established a cause of action against non-diverse defendants under state law.” Id. (citation omitted). Remand is appropriate, however, “if there is a colorable basis for predicting that a plaintiff may recover against non-diverse defendants.” Id. All ambiguities in the controlling state law and all doubts about the propriety of removal are resolved in favor of remand. Id. (citation omitted). A party’s motive for joining the non-diverse defendant is immaterial. Jerome-Duncan, Inc. v. Auto-By-Tel, LLC, 176 F.3d 904, 907 (6th Cir. 1999) (citation omitted). “When deciding a motion to remand, including ...


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