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 Order Relates to: Bianca Fraser-Johnson, et al., Plaintiffs,
G. CAMPBELL, 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, Â¶ 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 Â¶
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, Â¶ 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, Â¶Â¶ 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, Â¶ 12. Defendant Cynthia Heldt, M.D. is a
physician who specializes in internal medicine and is
licensed to practice medicine in Delaware. Id. at Â¶
15. Dr. Bauer and Dr. Heldt were employed or affiliated with
Christiana Care. Id. at Â¶Â¶ 13, 16. Plaintiff Bianca
Fraser-Johnson ("Fraser-Johnson") was a patient of
Christiana Care, Dr. Bauer, and Dr. Heldt. Id. at 5,
5, 2005, Fraser-Johnson had a Bard Filter
("Filter") implanted in her at the University of
Pennsylvania Hospital in Philadelphia, Pennsylvania.
Id. at Â¶ 19. In July of 2013, Fraser-Johnson
reported significant chest pain to Dr. Bauer. Id. at
Â¶ 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
Â¶Â¶ 21-22. In April or May of 2015, Fraser-Johnson reported
significant chest pain to Dr. Heldt. Id. at Â¶ 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 Â¶ 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.
562. On March 12, 2016, Plaintiffs'
filed their motion to remand the case to Delaware state
court. See Doc. 1077.
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. Â§ 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. Â§ 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. Â§ 1447(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
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 ...