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: Ronald Wolfe, Plaintiff,
G. CAMPBELL, 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, Â¶ 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, Â¶
10. Defendant Lawrence Schmetterer, M.D. is a licensed
physician who specializes in vascular surgery and resides in
Ohio. Id. at 9, Â¶ 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, Â¶ 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.
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. 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, " 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. Â§ 1447(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 arguments
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
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 fraudulent joinder