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 Ronald Wolfe, Plaintiff,
G. Campbell United States District Judge
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). 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.
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.
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.
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. 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.
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). 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. §
Plaintiff’s Motion to Remand.
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
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.
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 ...