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Jenkins v. Medtronic Inc.

United States District Court, D. Arizona

August 5, 2016

Dennis Jenkins, Plaintiff,
v.
Medtronic Incorporated, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge

         Plaintiff 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.[1] For the reasons that follow, the Court will grant the motion.

         I. Background.

         The 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.

         In an 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.

         On May 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.

         On June 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.

         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 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.

         III. Analysis

         Defendants 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).

         District 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 jurisdiction.” Id.

         Thus, 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).

         Defendants 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 ...


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