Jenkins v. Medtronic Incorporated et al

Filing 27

ORDER - Plaintiff's motion to remand (Doc. 15 ) is granted. Defendants' request for judicial notice (Doc. 13 ), Defendants' motion to dismiss (Doc. 14 ), and Plaintiff's motion to amend (Doc. 26 ) are found to be moot. The Clerk of the Court shall remand this case to Maricopa County Superior Court. Signed by Judge David G Campbell on 8/5/16. (Attachments: # 1 Remand Letter)(EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dennis Jenkins,
Plaintiff,

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ORDER

v.

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No. CV-16-01802-PHX-DGC

Medtronic Incorporated, et al.,

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Defendants.

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Plaintiff has filed a motion to remand. Doc. 15. Defendants filed a response

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(Doc. 23), and Plaintiff elected not to reply. The Court concludes that oral argument will

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not aid in its decision.1 For the reasons that follow, the Court will grant the motion.

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I.

Background.

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The allegations in the complaint are taken as true for purposes of this motion.

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Plaintiff is a 43-year-old resident of Phoenix, Arizona, who experiences chronic pain in

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his feet. Doc. 1-1 at 2-10 (“Complaint”), ¶ 9. Defendants Medtronic, Inc. and Medtronic

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USA, Inc. (collectively, “Medtronic”) are corporations organized under the laws of

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Delaware and Minnesota respectively. They market, warrant, and sell neurostimulators

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designed to relieve chronic pain without medication. ¶¶ 5-6, 9. Defendants Devin

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Nichols and Kelly Galloway (the “Individual Defendants”) are Medtronic employees who

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reside in Arizona. ¶¶ 7-8.

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Defendants’ request for oral argument is therefore denied. See Fed. R. Civ. P.
78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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In an attempt to address his chronic foot pain, Plaintiff was implanted with a

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Medtronic neurostimulator on December 15, 2014. ¶ 11. Plaintiff relied on Medtronic’s

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representation that the battery used in its neurostimulator would last for nine years.

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¶¶ 12-16. The device was unsuccessful in relieving the pain in Plaintiff’s feet because

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the battery stopped working properly within two months of implantation. ¶¶ 17, 29.

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Plaintiff notified Medtronic that he was having problems with his device. ¶ 17. The

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Individual Defendants undertook to reprogram and readjust Plaintiff’s device in four

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reprogramming sessions that occurred in the offices of Plaintiff’s doctors. ¶¶ 18-19.

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Plaintiff alleges that, during these sessions, “the Medtronic representatives would

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increase the stimulation level of the device to dangerously high levels,” shocking him

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across his back. ¶ 20. On April 24, 2015, Plaintiff had the neurostimulator surgically

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removed.

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functioned properly. ¶ 24. As a result of these events, Plaintiff now suffers from severe

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back pain. ¶ 25.

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The doctor who removed the device noted that its battery never

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On May 6, 2016, Plaintiff initiated this action by filing a complaint in Maricopa

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County Superior Court. The complaint asserted a breach of warranty claim against

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Medtronic and a negligence claim against the Individual Defendants. The warranty claim

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alleges that (1) Medtronic warranted that its neurostimulator battery would last for nine

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years; (2) the battery on Plaintiff’s neurostimulator stopped working properly within two

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months; and (3) as a direct and proximate result, Plaintiff suffered economic and personal

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injuries. ¶¶ 26-31. The negligence claim alleges that (1) the Individual Defendants owed

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Plaintiff a duty to act with reasonable care when they reprogrammed and readjusted his

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neurostimulator; (2) the Individual Defendants breached this duty when they increased

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the stimulation level to dangerously high levels; and (3) as a direct and proximate result,

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Plaintiff suffered personal injuries.

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vicariously liable for the conduct of the Individual Defendants. ¶ 36.

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¶¶ 32-35.

Plaintiff alleges that Medtronic is

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.

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II.

Legal Standard.

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A civil case brought in state court may be removed to the federal court in the

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district where the action is pending if the federal district court would have had original

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jurisdiction. 28 U.S.C. § 1441(a). Removal of an action arising under state law is not

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proper “if any of the parties in interest properly joined and served as defendants is a

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citizen of the State in which such action is brought.” § 1441(b)(2). “If at any time before

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final judgment it appears that the district court lacks subject matter jurisdiction, the case

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shall be remanded.” § 1447(c). Section 1441 is strictly construed against removal. See

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Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002).

The “strong

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presumption” against removal “means that the defendant always has the burden of

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establishing that removal is proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

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1992) (citation omitted). Federal courts must remand a case to state court “if there is any

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doubt as to the right of removal.” Id.

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III.

Analysis

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Defendants argue that diversity jurisdiction exists because (1) the Individual

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Defendants were fraudulently joined, (2) there is complete diversity between Plaintiff and

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the properly joined defendants, and (3) more than $75,000 is at stake. In the Ninth

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Circuit, “[j]oinder of a non-diverse defendant is deemed fraudulent, and the defendant’s

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presence in the lawsuit is ignored for purposes of determining diversity, if the plaintiff

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fails to state a cause of action against a resident defendant, and the failure is obvious

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according to the settled rules of the state.” Morris v. Princess Cruises, Inc., 236 F.3d

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1061, 1067 (9th Cir. 2001) (quotation marks, alterations, and citation omitted). Thus,

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“the fraudulent joinder inquiry focuses on the validity of the legal theory being asserted

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against the non-diverse defendant,” without requiring a finding that the plaintiff acted

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with fraudulent intent. Davis v. Prentiss Props. Ltd., Inc., 66 F. Supp. 2d 1112, 1114

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(C.D. Cal. 1999) (quotation marks and citation omitted).

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District courts in the Ninth Circuit have noted that “[t]he problem with the

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fraudulent joinder inquiry is that the Court must consider the validity of a claim that

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defeats diversity, a claim over which the Court has no jurisdiction.” Id. “Only by

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considering the merits of the non-diverse claim can the Court be assured of jurisdiction

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over any of the claims in the case.” Id. “The Court must therefore walk a very fine line:

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it must consider the merits of a matter without assuming jurisdiction over it.” Id. To

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accommodate this balancing act, courts have noted that “some room must exist between

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the standard for dismissal under Rule 12(b)(6), for example, and a finding of fraudulent

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joinder.” Id. at 1115. To constitute fraudulent joinder, claims against the non-diverse

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party must not only be unsuccessful, they must be untenable. Id. The Davis case

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concluded that Rule 11 of the Federal Rules of Civil Procedure provides an appropriate

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standard. Id. Under Rule 11, “a party whose claim is not frivolous may legitimately

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present that claim to an appropriate court to have the claim considered.” Id. “The fact

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that the party may lose or even the fact that the party will probably lose does not affect

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the party’s right to present its claim, make its arguments, and receive a ruling from a

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court with proper jurisdiction.” Id.

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Thus, even “‘where it is doubtful whether the complaint states a cause of action

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against the resident defendant, the doubt is ordinarily resolved in favor of the retention of

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the case in state court.’” Ballesteros v. Am. Standard Ins. Co. of Wisc., 436 F. Supp. 2d

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1070, 1072 (D. Ariz. 2006) (quoting Albi v. Street & Smith Publ’ns, 140 F.2d 310, 312

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(9th Cir. 1944)). Indeed, even a “‘glimmer of hope’ that plaintiff can establish [the]

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claim is sufficient to preclude application of [the] fraudulent joinder doctrine.” Id.

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(quoting Mayes v. Rapoport, 198 F.3d 457, 466 (4th Cir. 1999)). This fraudulent joinder

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standard based on Rule 11 has been cited with approval throughout the Ninth Circuit.

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See In re: Bard IVC Filters Products Liab. Litig., No. 2641, 2016 WL 2347430, at *2 (D.

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Ariz. May 4, 2016); Mirchandani v. BMO Harris Bank NA, No. CV11-02286-PHX-

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GMS, 2011 WL 6019311, at *3 (D. Ariz. Dec. 5, 2011); Bellecci v. GTE Sprint

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Commc’ns Corp., No. C-02-03974-WHA, 2003 WL 151538, at *3 (N.D. Cal. Jan. 14,

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2003); see also Jennings-Frye v. NYK Logistics Americas Inc., No. 2:10-cv-09737-JHN-

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EX, 2011 WL 642653, at *3 (C.D. Cal. Feb. 11, 2011); Lujan v. Girardi & Keese, No.

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CV09-00017, 2009 WL 5216906, at *6 (D. Guam Dec. 29, 2009).

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Defendants argue that Plaintiff’s claim against the Individual Defendants is

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obviously deficient under Arizona law because he cannot show that the Individual

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Defendants owed him a duty of care. Doc. 23 at 6-12. The Court does not agree. In

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Arizona, “every person is under a duty to avoid creating situations which pose an

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unreasonable risk of harm to others.” Gipson v. Kasey, 150 P.3d 228, 233 (Ariz. 2007)

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(citation and quotation mark omitted). Stated differently, “[a]n actor ordinarily has a

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duty to exercise reasonable care when the actor’s conduct creates a risk of physical

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harm.” Restatement (Third) of Torts: Phys. & Emot. Harm § 7 (2010). Plaintiff alleges

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that the Individual Defendants reprogrammed and readjusted a neurostimulator implanted

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in his back. Complaint ¶ 19. Because such conduct entails a risk of physical harm, there

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is a reasonable possibility that an Arizona court would find that the Individual

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Defendants were under a duty to exercise reasonable care.

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Defendants cite several cases applying the learned intermediary doctrine for the

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proposition that sales representatives working for medical device or pharmaceutical

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companies generally do not have a duty to warn patients. Doc. 23 at 10. These cases are

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inapposite. Plaintiff does not allege that the Individual Defendants violated a duty to

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warn; he alleges that they negligently manipulated a device implanted in his back.

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Defendants argue that the Individual Defendants cannot be liable because they

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were taking direction from Plaintiff’s doctor when they manipulated his device. Id.

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Defendants do not cite any Arizona authority holding that a non-physician is immunized

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from liability for acts taken at the direction of a physician. Even if such authority exists,

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Defendants’ argument fails for want of any evidence that the Individual Defendants were

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taking directions from Plaintiff’s doctor when they increased the stimulation level of his

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neurostimulator. An Arizona court would not grant a motion to dismiss based on an

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unsupported factual premise. See McDonald v. City of Prescott, 5 P.3d 900, 901 (Ariz.

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Ct. App. 2000) (Arizona courts must draw all reasonable inferences in favor of plaintiff

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on a motion to dismiss).2

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Finally, Defendants argue that Plaintiff fails to allege sufficient factual allegations

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to state a claim against the Individual Defendants under Bell Atl. Corp. v. Twombly, 550

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U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Whether that is true is

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immaterial: the fraudulent joinder analysis looks to whether the claim against the resident

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defendant is viable under “the settled rules of the state,” Morris, 236 F.3d at 1067

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(emphasis added), and federal courts therefore look to the state’s pleading standard in

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determining whether a claim against a resident defendant is viable, see Edwea, Inc. v.

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Allstate Ins. Co., No. CIV.A. H-10-2970, 2010 WL 5099607, at *5 (S.D. Tex. Dec. 8,

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2010) (collecting cases). Arizona has not adopted the Twombly and Iqbal pleading

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standards, Cullen v. Auto-Owners Ins. Co., 189 P.3d 344 (2008), and Defendants do not

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argue that the claim against the Individual Defendants is obviously deficient under

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Arizona’s “notice pleading standard,” Coleman v. City of Mesa, 284 P.3d 863, 867 (Ariz.

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2012). Nor would such an argument be well taken. Plaintiff alleges that the Individual

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Defendants reprogrammed and readjusted his neurostimulator four times between

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December 15, 2014 and February 13, 2015, that they increased the stimulation level of

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the device to dangerously high levels during these sessions, that these increases produced

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shocks across his back like a cattle prod, and that he was injured as a result. Complaint

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¶¶ 19-20, 22, 25. There is a reasonable possibility that an Arizona court would find these

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allegations sufficient to state a claim under its notice pleading standard.

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This evidentiary gap distinguishes Wilssens v. Medtronic, Inc., No. 09-60792CIV, 2009 WL 9151079 (S.D. Fla. July 23, 2009), and Suckow v. Medtronic, Inc., 971 F.
Supp. 2d 1042 (D. Nev. 2013). In Wilssens, the plaintiff asserted a negligence claim
against a Medtronic representative who allegedly misprogrammed his medical device.
See 2009 WL 9151079 at *1. The representative provided a declaration stating that she
was acting on the physician’s direction when she programmed the device. See id. at *7.
The court relied on this declaration in finding the claim non-viable. See id. (claim was
non-viable because plaintiff was unable to “overcome [the representative’s] statement
that she acted at the direction of a physician when she programmed Plaintiff’s . . .
device”). Similarly, the Medtronic representative in Suckow provided a declaration
stating that any work he performed on the plaintiff’s device was done at the request of a
physician. See 971 F. Supp. 2d at 1047. The court relied on this evidence – and
plaintiff’s failure to contest removal – in finding the claim against the representative was
not viable. See id. at 1047-48.
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As noted above, federal courts must remand cases to state court “if there is any

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doubt as to the right of removal.” Gaus, 980 F.2d at 566. Furthermore, doubts regarding

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fraudulent joinder are resolved in favor of remand. Albi, 140 F.2d at 312. For the

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reasons discussed above, the Court finds that Defendants have not carried their burden of

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showing that the Individual Defendants were fraudulently joined or that removal was

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proper.

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IT IS ORDERED:

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1.

Plaintiff’s motion to remand (Doc. 15) is granted.

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2.

Defendants’ request for judicial notice (Doc. 13), Defendants’ motion to

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dismiss (Doc. 14), and Plaintiff’s motion to amend (Doc. 26) are found to

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be moot.

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3.

The Clerk of the Court shall remand this case to Maricopa County Superior
Court.

Dated this 5th day of August, 2016.

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