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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dennis Jenkins, Plaintiff, 10 11 ORDER v. 12 No. CV-16-01802-PHX-DGC Medtronic Incorporated, et al., 13 Defendants. 14 15 Plaintiff has filed a motion to remand. Doc. 15. Defendants filed a response 16 (Doc. 23), and Plaintiff elected not to reply. The Court concludes that oral argument will 17 not aid in its decision.1 For the reasons that follow, the Court will grant the motion. 18 I. Background. 19 The allegations in the complaint are taken as true for purposes of this motion. 20 Plaintiff is a 43-year-old resident of Phoenix, Arizona, who experiences chronic pain in 21 his feet. Doc. 1-1 at 2-10 (“Complaint”), ¶ 9. Defendants Medtronic, Inc. and Medtronic 22 USA, Inc. (collectively, “Medtronic”) are corporations organized under the laws of 23 Delaware and Minnesota respectively. They market, warrant, and sell neurostimulators 24 designed to relieve chronic pain without medication. ¶¶ 5-6, 9. Defendants Devin 25 Nichols and Kelly Galloway (the “Individual Defendants”) are Medtronic employees who 26 reside in Arizona. ¶¶ 7-8. 27 28 1 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). 1 In an attempt to address his chronic foot pain, Plaintiff was implanted with a 2 Medtronic neurostimulator on December 15, 2014. ¶ 11. Plaintiff relied on Medtronic’s 3 representation that the battery used in its neurostimulator would last for nine years. 4 ¶¶ 12-16. The device was unsuccessful in relieving the pain in Plaintiff’s feet because 5 the battery stopped working properly within two months of implantation. ¶¶ 17, 29. 6 Plaintiff notified Medtronic that he was having problems with his device. ¶ 17. The 7 Individual Defendants undertook to reprogram and readjust Plaintiff’s device in four 8 reprogramming sessions that occurred in the offices of Plaintiff’s doctors. ¶¶ 18-19. 9 Plaintiff alleges that, during these sessions, “the Medtronic representatives would 10 increase the stimulation level of the device to dangerously high levels,” shocking him 11 across his back. ¶ 20. On April 24, 2015, Plaintiff had the neurostimulator surgically 12 removed. 13 functioned properly. ¶ 24. As a result of these events, Plaintiff now suffers from severe 14 back pain. ¶ 25. ¶ 25. The doctor who removed the device noted that its battery never 15 On May 6, 2016, Plaintiff initiated this action by filing a complaint in Maricopa 16 County Superior Court. The complaint asserted a breach of warranty claim against 17 Medtronic and a negligence claim against the Individual Defendants. The warranty claim 18 alleges that (1) Medtronic warranted that its neurostimulator battery would last for nine 19 years; (2) the battery on Plaintiff’s neurostimulator stopped working properly within two 20 months; and (3) as a direct and proximate result, Plaintiff suffered economic and personal 21 injuries. ¶¶ 26-31. The negligence claim alleges that (1) the Individual Defendants owed 22 Plaintiff a duty to act with reasonable care when they reprogrammed and readjusted his 23 neurostimulator; (2) the Individual Defendants breached this duty when they increased 24 the stimulation level to dangerously high levels; and (3) as a direct and proximate result, 25 Plaintiff suffered personal injuries. 26 vicariously liable for the conduct of the Individual Defendants. ¶ 36. 27 28 ¶¶ 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. -2- 1 II. Legal Standard. 2 A civil case brought in state court may be removed to the federal court in the 3 district where the action is pending if the federal district court would have had original 4 jurisdiction. 28 U.S.C. § 1441(a). Removal of an action arising under state law is not 5 proper “if any of the parties in interest properly joined and served as defendants is a 6 citizen of the State in which such action is brought.” § 1441(b)(2). “If at any time before 7 final judgment it appears that the district court lacks subject matter jurisdiction, the case 8 shall be remanded.” § 1447(c). Section 1441 is strictly construed against removal. See 9 Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002). The “strong 10 presumption” against removal “means that the defendant always has the burden of 11 establishing that removal is proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 12 1992) (citation omitted). Federal courts must remand a case to state court “if there is any 13 doubt as to the right of removal.” Id. 14 III. Analysis 15 Defendants argue that diversity jurisdiction exists because (1) the Individual 16 Defendants were fraudulently joined, (2) there is complete diversity between Plaintiff and 17 the properly joined defendants, and (3) more than $75,000 is at stake. In the Ninth 18 Circuit, “[j]oinder of a non-diverse defendant is deemed fraudulent, and the defendant’s 19 presence in the lawsuit is ignored for purposes of determining diversity, if the plaintiff 20 fails to state a cause of action against a resident defendant, and the failure is obvious 21 according to the settled rules of the state.” Morris v. Princess Cruises, Inc., 236 F.3d 22 1061, 1067 (9th Cir. 2001) (quotation marks, alterations, and citation omitted). Thus, 23 “the fraudulent joinder inquiry focuses on the validity of the legal theory being asserted 24 against the non-diverse defendant,” without requiring a finding that the plaintiff acted 25 with fraudulent intent. Davis v. Prentiss Props. Ltd., Inc., 66 F. Supp. 2d 1112, 1114 26 (C.D. Cal. 1999) (quotation marks and citation omitted). 27 District courts in the Ninth Circuit have noted that “[t]he problem with the 28 fraudulent joinder inquiry is that the Court must consider the validity of a claim that -3- 1 defeats diversity, a claim over which the Court has no jurisdiction.” Id. “Only by 2 considering the merits of the non-diverse claim can the Court be assured of jurisdiction 3 over any of the claims in the case.” Id. “The Court must therefore walk a very fine line: 4 it must consider the merits of a matter without assuming jurisdiction over it.” Id. To 5 accommodate this balancing act, courts have noted that “some room must exist between 6 the standard for dismissal under Rule 12(b)(6), for example, and a finding of fraudulent 7 joinder.” Id. at 1115. To constitute fraudulent joinder, claims against the non-diverse 8 party must not only be unsuccessful, they must be untenable. Id. The Davis case 9 concluded that Rule 11 of the Federal Rules of Civil Procedure provides an appropriate 10 standard. Id. Under Rule 11, “a party whose claim is not frivolous may legitimately 11 present that claim to an appropriate court to have the claim considered.” Id. “The fact 12 that the party may lose or even the fact that the party will probably lose does not affect 13 the party’s right to present its claim, make its arguments, and receive a ruling from a 14 court with proper jurisdiction.” Id. 15 Thus, even “‘where it is doubtful whether the complaint states a cause of action 16 against the resident defendant, the doubt is ordinarily resolved in favor of the retention of 17 the case in state court.’” Ballesteros v. Am. Standard Ins. Co. of Wisc., 436 F. Supp. 2d 18 1070, 1072 (D. Ariz. 2006) (quoting Albi v. Street & Smith Publ’ns, 140 F.2d 310, 312 19 (9th Cir. 1944)). Indeed, even a “‘glimmer of hope’ that plaintiff can establish [the] 20 claim is sufficient to preclude application of [the] fraudulent joinder doctrine.” Id. 21 (quoting Mayes v. Rapoport, 198 F.3d 457, 466 (4th Cir. 1999)). This fraudulent joinder 22 standard based on Rule 11 has been cited with approval throughout the Ninth Circuit. 23 See In re: Bard IVC Filters Products Liab. Litig., No. 2641, 2016 WL 2347430, at *2 (D. 24 Ariz. May 4, 2016); Mirchandani v. BMO Harris Bank NA, No. CV11-02286-PHX- 25 GMS, 2011 WL 6019311, at *3 (D. Ariz. Dec. 5, 2011); Bellecci v. GTE Sprint 26 Commc’ns Corp., No. C-02-03974-WHA, 2003 WL 151538, at *3 (N.D. Cal. Jan. 14, 27 2003); see also Jennings-Frye v. NYK Logistics Americas Inc., No. 2:10-cv-09737-JHN- 28 EX, 2011 WL 642653, at *3 (C.D. Cal. Feb. 11, 2011); Lujan v. Girardi & Keese, No. -4- 1 CV09-00017, 2009 WL 5216906, at *6 (D. Guam Dec. 29, 2009). 2 Defendants argue that Plaintiff’s claim against the Individual Defendants is 3 obviously deficient under Arizona law because he cannot show that the Individual 4 Defendants owed him a duty of care. Doc. 23 at 6-12. The Court does not agree. In 5 Arizona, “every person is under a duty to avoid creating situations which pose an 6 unreasonable risk of harm to others.” Gipson v. Kasey, 150 P.3d 228, 233 (Ariz. 2007) 7 (citation and quotation mark omitted). Stated differently, “[a]n actor ordinarily has a 8 duty to exercise reasonable care when the actor’s conduct creates a risk of physical 9 harm.” Restatement (Third) of Torts: Phys. & Emot. Harm § 7 (2010). Plaintiff alleges 10 that the Individual Defendants reprogrammed and readjusted a neurostimulator implanted 11 in his back. Complaint ¶ 19. Because such conduct entails a risk of physical harm, there 12 is a reasonable possibility that an Arizona court would find that the Individual 13 Defendants were under a duty to exercise reasonable care. 14 Defendants cite several cases applying the learned intermediary doctrine for the 15 proposition that sales representatives working for medical device or pharmaceutical 16 companies generally do not have a duty to warn patients. Doc. 23 at 10. These cases are 17 inapposite. Plaintiff does not allege that the Individual Defendants violated a duty to 18 warn; he alleges that they negligently manipulated a device implanted in his back. 19 Defendants argue that the Individual Defendants cannot be liable because they 20 were taking direction from Plaintiff’s doctor when they manipulated his device. Id. 21 Defendants do not cite any Arizona authority holding that a non-physician is immunized 22 from liability for acts taken at the direction of a physician. Even if such authority exists, 23 Defendants’ argument fails for want of any evidence that the Individual Defendants were 24 taking directions from Plaintiff’s doctor when they increased the stimulation level of his 25 neurostimulator. An Arizona court would not grant a motion to dismiss based on an 26 unsupported factual premise. See McDonald v. City of Prescott, 5 P.3d 900, 901 (Ariz. 27 Ct. App. 2000) (Arizona courts must draw all reasonable inferences in favor of plaintiff 28 -5- 1 on a motion to dismiss).2 2 Finally, Defendants argue that Plaintiff fails to allege sufficient factual allegations 3 to state a claim against the Individual Defendants under Bell Atl. Corp. v. Twombly, 550 4 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Whether that is true is 5 immaterial: the fraudulent joinder analysis looks to whether the claim against the resident 6 defendant is viable under “the settled rules of the state,” Morris, 236 F.3d at 1067 7 (emphasis added), and federal courts therefore look to the state’s pleading standard in 8 determining whether a claim against a resident defendant is viable, see Edwea, Inc. v. 9 Allstate Ins. Co., No. CIV.A. H-10-2970, 2010 WL 5099607, at *5 (S.D. Tex. Dec. 8, 10 2010) (collecting cases). Arizona has not adopted the Twombly and Iqbal pleading 11 standards, Cullen v. Auto-Owners Ins. Co., 189 P.3d 344 (2008), and Defendants do not 12 argue that the claim against the Individual Defendants is obviously deficient under 13 Arizona’s “notice pleading standard,” Coleman v. City of Mesa, 284 P.3d 863, 867 (Ariz. 14 2012). Nor would such an argument be well taken. Plaintiff alleges that the Individual 15 Defendants reprogrammed and readjusted his neurostimulator four times between 16 December 15, 2014 and February 13, 2015, that they increased the stimulation level of 17 the device to dangerously high levels during these sessions, that these increases produced 18 shocks across his back like a cattle prod, and that he was injured as a result. Complaint 19 ¶¶ 19-20, 22, 25. There is a reasonable possibility that an Arizona court would find these 20 allegations sufficient to state a claim under its notice pleading standard. 21 22 23 24 25 26 27 28 2 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. -6- 1 As noted above, federal courts must remand cases to state court “if there is any 2 doubt as to the right of removal.” Gaus, 980 F.2d at 566. Furthermore, doubts regarding 3 fraudulent joinder are resolved in favor of remand. Albi, 140 F.2d at 312. For the 4 reasons discussed above, the Court finds that Defendants have not carried their burden of 5 showing that the Individual Defendants were fraudulently joined or that removal was 6 proper. 7 IT IS ORDERED: 8 1. Plaintiff’s motion to remand (Doc. 15) is granted. 9 2. Defendants’ request for judicial notice (Doc. 13), Defendants’ motion to 10 dismiss (Doc. 14), and Plaintiff’s motion to amend (Doc. 26) are found to 11 be moot. 12 13 14 3. The Clerk of the Court shall remand this case to Maricopa County Superior Court. Dated this 5th day of August, 2016. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?