United States District Court, D. Arizona
G. Campbell United States District Judge
has filed a motion to remand. Doc. 15. Defendants filed a
response (Doc. 23), and Plaintiff elected not to reply. The
Court concludes that oral argument will not aid in its
decision. For the reasons that follow, the Court
will grant the motion.
allegations in the complaint are taken as true for purposes
of this motion. Plaintiff is a 43-year-old resident of
Phoenix, Arizona, who experiences chronic pain in his feet.
Doc. 1-1 at 2-10 (“Complaint”), ¶ 9.
Defendants Medtronic, Inc. and Medtronic USA, Inc.
(collectively, “Medtronic”) are corporations
organized under the laws of Delaware and Minnesota
respectively. They market, warrant, and sell neurostimulators
designed to relieve chronic pain without medication.
¶¶ 5-6, 9. Defendants Devin Nichols and Kelly
Galloway (the “Individual Defendants”) are
Medtronic employees who reside in Arizona. ¶¶ 7-8.
attempt to address his chronic foot pain, Plaintiff was
implanted with a Medtronic neurostimulator on December 15,
2014. ¶ 11. Plaintiff relied on Medtronic’s
representation that the battery used in its neurostimulator
would last for nine years. ¶¶ 12-16. The device was
unsuccessful in relieving the pain in Plaintiff’s feet
because the battery stopped working properly within two
months of implantation. ¶¶ 17, 29. Plaintiff
notified Medtronic that he was having problems with his
device. ¶ 17. The Individual Defendants undertook to
reprogram and readjust Plaintiff’s device in four
reprogramming sessions that occurred in the offices of
Plaintiff’s doctors. ¶¶ 18-19. Plaintiff
alleges that, during these sessions, “the Medtronic
representatives would increase the stimulation level of the
device to dangerously high levels, ” shocking him
across his back. ¶ 20. On April 24, 2015, Plaintiff had
the neurostimulator surgically removed. ¶ 25. The doctor
who removed the device noted that its battery never
functioned properly. ¶ 24. As a result of these events,
Plaintiff now suffers from severe back pain. ¶ 25.
6, 2016, Plaintiff initiated this action by filing a
complaint in Maricopa County Superior Court. The complaint
asserted a breach of warranty claim against Medtronic and a
negligence claim against the Individual Defendants. The
warranty claim alleges that (1) Medtronic warranted that its
neurostimulator battery would last for nine years; (2) the
battery on Plaintiff’s neurostimulator stopped working
properly within two months; and (3) as a direct and proximate
result, Plaintiff suffered economic and personal injuries.
¶¶ 26-31. The negligence claim alleges that (1) the
Individual Defendants owed Plaintiff a duty to act with
reasonable care when they reprogrammed and readjusted his
neurostimulator; (2) the Individual Defendants breached this
duty when they increased the stimulation level to dangerously
high levels; and (3) as a direct and proximate result,
Plaintiff suffered personal injuries. ¶¶ 32-35.
Plaintiff alleges that Medtronic is vicariously liable for
the conduct of the Individual Defendants. ¶ 36.
7, 2016, Defendants removed this action pursuant to 28 U.S.C.
§ 1441, asserting federal diversity jurisdiction under
28 U.S.C. § 1332. Doc. 1.
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 of an action arising under
state law is not proper “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.”
§ 1441(b)(2). “If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”
§ 1447(c). Section 1441 is strictly construed against
removal. See Syngenta Crop Protection, Inc. v.
Henson, 537 U.S. 28, 32 (2002). The “strong
presumption” against removal “means that the
defendant always has the burden of establishing that removal
is proper.” Gaus v. Miles, Inc., 980 F.2d 564,
566 (9th Cir. 1992) (citation omitted). Federal courts must
remand a case to state court “if there is any doubt as
to the right of removal.” Id.
argue that diversity jurisdiction exists because (1) the
Individual Defendants were fraudulently joined, (2) there is
complete diversity between Plaintiff and the properly joined
defendants, and (3) more than $75, 000 is at stake. In the
Ninth Circuit, “[j]oinder of a non-diverse defendant is
deemed fraudulent, and the defendant’s presence in the
lawsuit is ignored for purposes of determining diversity, if
the plaintiff fails to state a cause of action against a
resident defendant, and the failure is obvious according to
the settled rules of the state.” Morris v. Princess
Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001)
(quotation marks, alterations, and citation omitted). Thus,
“the fraudulent joinder inquiry focuses on the validity
of the legal theory being asserted against the non-diverse
defendant, ” without requiring a finding that the
plaintiff acted with fraudulent intent. Davis v. Prentiss
Props. Ltd., Inc., 66 F.Supp.2d 1112, 1114 (C.D. Cal.
1999) (quotation marks and citation omitted).
courts in the Ninth Circuit have noted that “[t]he
problem with the fraudulent joinder inquiry is that the Court
must consider the validity of a claim that defeats diversity,
a claim over which the Court has no jurisdiction.”
Id. “Only by considering the merits of the
non-diverse claim can the Court be assured of jurisdiction
over any of the claims in the case.” Id.
“The Court must therefore walk a very fine line: it
must consider the merits of a matter without assuming
jurisdiction over it.” Id. To accommodate this
balancing act, courts have noted that “some room must
exist between the standard for dismissal under Rule 12(b)(6),
for example, and a finding of fraudulent joinder.”
Id. at 1115. To constitute fraudulent joinder,
claims against the non-diverse party must not only be
unsuccessful, they must be untenable. Id. The
Davis case concluded that Rule 11 of the Federal
Rules of Civil Procedure provides an appropriate standard.
Id. Under Rule 11, “a party whose claim is not
frivolous may legitimately present that claim to an
appropriate court to have the claim considered.”
Id. “The fact that the party may lose or even
the fact that the party will probably lose does not affect
the party’s right to present its claim, make its
arguments, and receive a ruling from a court with proper
even “‘where it is doubtful whether the complaint
states a cause of action against the resident defendant, the
doubt is ordinarily resolved in favor of the retention of the
case in state court.’” Ballesteros v. Am.
Standard Ins. Co. of Wisc., 436 F.Supp.2d 1070, 1072 (D.
Ariz. 2006) (quoting Albi v. Street & Smith
Publ’ns, 140 F.2d 310, 312 (9th Cir. 1944)).
Indeed, even a “‘glimmer of hope’ that
plaintiff can establish [the] claim is sufficient to preclude
application of [the] fraudulent joinder doctrine.”
Id. (quoting Mayes v. Rapoport, 198 F.3d
457, 466 (4th Cir. 1999)). This fraudulent joinder standard
based on Rule 11 has been cited with approval throughout the
Ninth Circuit. See In re: Bard IVC Filters Products Liab.
Litig., No. 2641, 2016 WL 2347430, at *2 (D. Ariz. May
4, 2016); Mirchandani v. BMO Harris Bank NA, No.
CV11-02286-PHX-GMS, 2011 WL 6019311, at *3 (D. Ariz. Dec. 5,
2011); Bellecci v. GTE Sprint Commc’ns Corp.,
No. C-02-03974-WHA, 2003 WL 151538, at *3 (N.D. Cal. Jan. 14,
2003); see also Jennings-Frye v. NYK Logistics Americas
Inc., No. 2:10-cv-09737-JHN-EX, 2011 WL 642653, at *3
(C.D. Cal. Feb. 11, 2011); Lujan v. Girardi &
Keese, No. CV09-00017, 2009 WL 5216906, at *6 (D. Guam
Dec. 29, 2009).
argue that Plaintiff’s claim against the Individual
Defendants is obviously deficient under Arizona law because
he cannot show that the Individual Defendants owed him a duty
of care. Doc. 23 at 6-12. The Court does not agree. In
Arizona, “every person is under a duty to avoid
creating situations which pose an unreasonable risk of harm
to others.” Gipson v. Kasey, 150 P.3d 228, 233
(Ariz. 2007) (citation and quotation mark omitted). Stated
differently, “[a]n actor ordinarily has a duty to
exercise reasonable care when the actor’s conduct
creates a risk of physical harm.” Restatement (Third)
of Torts: Phys. & Emot. Harm § 7 (2010). Plaintiff
alleges that the Individual Defendants reprogrammed and
readjusted a neurostimulator implanted in his back. Complaint