Dent v. Lopez

NADEAN DENT, Plaintiff, v. ELVA LOPEZ, M.D.; C. R. BARD, INC., A NEW JERSEY CORPORATION; DAVOL, INC.,A NEW JERSEY CORPORATION AND A WHOLLY OWNED SUBSIDIARY OF C. R. BARD INC.;SOFRADIM PRODUCTION SAS; AND DOES 1-100, Defendants.

Case No. 1:14-CV-00442-LJO-SMS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

DATED: July 7, 2014

ORDER GRANTING PLAINTIFF'S

MOTION TO REMAND AND DISMISSING

DEFENDANTS' MOTION TO STAY AS

MOOT.

(Doc. Nos. 7 and 8)

Before the Court in the above-styled and numbered cause of action are Defendants' Motion to Stay All Proceedings Pending a Decision on Transfer by the Judicial Panel on Multidistrict Litigation, filed March 28, 2014 (Doc. No. 7), and Plaintiff's Motion to Remand to the Superior Court of Kern County, California and Request for Award of Costs and Attorney's Fees, filed April 1, 2014 (Doc. No. 8). Having considered the motions and governing law, the Court will grant Plaintiff's motion for remand and dismiss Defendants' motion to stay as moot.

I. Background

On January 10, 2014, Plaintiff Nadean Dent, a California citizen, filed this case in California state court against Defendants Elva Lopez, M.D. ("Dr. Lopez"), a California citizen, and Defendants C. R. Bard, Inc. and Davol, Inc. (together "the removing Defendants" or "Bard").Plaintiff seeks damages for injuries she suffered allegedly as a result of a surgery, performed by Dr. Lopez, implanting Defendant Bard's medical device (a pelvic mesh).

On March 26, 2014, Bard removed the case to federal court, asserting diversity. Removing Defendants concede that Dr. Lopez is domiciled in California, which, they admit, would normally defeat diversity under 28 U.S.C. § 1332. However, removing Defendants assert that the diversity requirement of 28 U.S.C. 1332(a) is satisfied, citing the Court of Appeals for the Eleventh Circuit case Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), overruled on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000), because Dr. Lopez was "fraudulently misjoined" in the action for the purpose of defeating diversity.

On March 28, 2014, Bard filed a Motion to Stay, by which they argue that the Court should first consider the motion to stay before jurisdictional issues. They contend that the Court should grant the motion because, in the interest of conserving judicial resources and promoting consistency, the issue of jurisdiction should be reserved for consideration by the MDL Panel.

On April 1, 2014, Plaintiff filed her Motion to Remand to the Superior Court of California for Kern County. Plaintiff argues that, as a threshold matter, jurisdictional issues should be decided before the motion to stay. She further argues that the doctrine of "fraudulent misjoinder," which serves as an exception to removal requirements as recognized by the Eleventh Circuit in Tapscott, does not apply. Plaintiff alleges that she and Defendant Elva Lopez, M.D., are residents of the State of California, while Defendants C. R. Bard, Inc., Davol, Inc., and Sofradim Production SAS are corporations organized and existing under the laws of New Jersey. On that basis she argues that the case lacks complete diversity, and, thus, the Court should remand to state court. There is no dispute that the amount in controversy exceeds $75,000.

A federal MDL has been established in the Southern District of West Virginia to coordinate federal actions involving Bard. See In Re: C.R. Bard, Inc., Pelvic Repair System LiabilityLitigation (MDL 2187). Bard provided notice to the MDL Panel of this action, and the Panel issued a Conditional Transfer Order ("CTO") on April 1, 2014. See MDL No. 2187, Case CAE/1:14-CV-00442-LJO-SMS (Doc. No. 4). Plaintiff filed a notice of opposition to the CTO on April 1, 2014. See Id. (Doc. No. 6).

The parties' motions are ripe for consideration.

II. Legal Standard

A defendant has the right to remove a matter to federal court where the district court would have original jurisdiction. See 28 U.S.C. § 1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 286, 392 (1987). District courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1441(a). District courts also have original jurisdiction over actions where the amount in controversy exceeds $75,000 and there is complete diversity of citizenship between parties. 28 U.S.C. §§ 1331(a), 1332(a). In other words, plaintiffs must be citizens of different states than each of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 117 S.Ct. 467, 136 L.Ed.2d 437 (1996).

Removal statutes are to be strictly construed, Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992), and the party seeking removal bears the burden of establishing the existence of federal subject-matter jurisdiction. See, e.g., Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921); see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); Prize Frize, Inc. v. Matrix Inc., 167 F.3d 1261, 1265 (9th Cir. 1999) ("burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction."); see also Abrego v. Dow Chem. Co., 443 F.3d 676, 683-85 (9th Cir. 2006); see also Calif. Ex. Rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 ("the burden of establishing federal jurisdiction falls to the party invoking the statute.").

If "at any time before final judgment" the district court determines it lacks subject-matter jurisdiction, the case must be remanded. 28 U.S.C. § 1447(c). A district court should remand an action to state court if it appears that it was removed improvidently. Id. "[A]ny doubt about the right of removal requires resolution in favor of remand." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus, 980 F.2d at 566).

III. Discussion

A. Decision Sequence

Before the Court can evaluate the parties' motions it must determine whether, as Plaintiff suggests, the Court should first address jurisdiction before addressing the motion to stay, or, as removing Defendants argue, the issue of jurisdiction should be reserved for consideration by the MDL Panel. The Court thus begins by assessing the appropriate order in which to proceed.

Plaintiff relies on Supreme Court and Ninth Circuit precedent in support of her argument that the Court should address its jurisdiction prior to other threshold matters. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ("Federal courts are courts of limited jurisdiction. . . [i]t is to be presumed that a cause lies outside this limited jurisdiction . . . and the burden of establishing the contrary rests upon the party asserting jurisdiction"); Potter v. Hughes, 546 F.3d 1051, 1061 (9th Cir. 2008) ("federal courts normally must resolve questions of subject matter jurisdiction before reaching other threshold issues. Only where the other issue itself creates the jurisdictional issue . . . or the resolution of the issue is clear while the jurisdictional issue is difficult, . . . is it appropriate for the Court to proceed without confirming jurisdiction."); Conroy v. Fresh Del Monte Produce, Inc., 325 F.Supp.2d 1049, 1054 (N.D. Cal. 2004) ("[I]t is in the interest of judicial economy to decide issues of jurisdiction as early in the litigation process as possible. If federal jurisdiction does not exist, the case can be remanded before federal resources are further expended . . . .").

Plaintiff details a long list of pelvic mesh cases where a removing defendant alleges fraudulent misjoinder in similar circumstances and a district court finds it appropriate to address the jurisdictional issue before the competing motion to stay, and ultimately finds removal improper. For instance, the Central District of California recently remanded four identical product liability cases to state court after mesh manufacturers improperly removed the cases. See Haston v. Yeo, et al., No. ED CV 13-00364-JFW (OPx), (C.D. Cal. Mar. 11, 2013) (Walters, J.) (finding that the defendant failed to demonstrate fraudulent joinder under California law, thus, complete diversity of citizenship was lacking); Goodwin v. Kojian, Case No. 13-cv-325-JST (C.D. Cal. Apr. 12, 2013) (Tucker, J.) (finding that fraudulent misjoinder did not apply and both plaintiff and implanting doctor were citizens of California for diversity purposes); Lung v. Schlesinger, Case No. 13-cv-00672 SJO (C.D. Cal. Apr. 1, 2013) (Otero, S.) (finding that the California doctor was not fraudulently joined, thus, complete diversity was lacking and removal was improper); Guardado v. Highshaw, Case No. 13-cv-365 PSG (C.D. Cal. May 6, 2013) (Gutierrez, P.) (finding it appropriate to address plaintiff's motion to remand rather than staying case and deferring jurisdictional issues to MDL court). Plaintiff further offers that the Northern District of California also recently remanded a pelvic mesh products liability case to state court on the same basis, concluding that mesh manufacturers improperly removed the case. See Lopez v. Pfeffer, et al., Case No. 13-cv-03341-NC (N.D. Cal. Sep. 25, 2013). Although Plaintiff acknowledges that the Eastern District of California has issued divergent opinions on this topic. Compare Perry v. Luu, Case No. 13-cv-729-AWI-JLT, 2013 WL 3354446 (E.D. Cal. July 3, 2013) (first considering the matter of jurisdiction where defendant mesh manufacturers removed under the Eleventh Circuit's Tapscott decision on "fraudulent misjoinder," declining to apply a theory not adopted by the Ninth Circuit, finding removal improper, and granting plaintiff's motion to remand), with Rubio v. Arndal, 2013 WL796669 (E.D. Cal. Mar. 4, 2013) (considering the motion to stay first for the purposes of judicial efficiency and fairness, and finding the motion to remand moot).

According to Defendants, "other courts in California,...