Donna Lackey v. Boston Scientific Corporation et al

Filing 27

MINUTES (IN CHAMBERS) ORDER GRANTING PLAINTIFFS MOTION TO REMAND by Judge Beverly Reid O'Connell: The Court finds that although Plaintiff cannot rely on the voluntary-involuntary rule to remand the case, Defendant's removal is untimely unde r Section 1446(c)(1), and Plaintiff did not engage in bad faith to prevent removal. Accordingly, Plaintiff's Motion to Remand 20 is GRANTED. This case is hereby REMANDED to the Los Angeles Superior Court, Central District, Case No. BC515037FF. The hearing scheduled for 10/28/2015, at 1:30 PM, is VACATED. ( MD JS-6. Case Terminated. ) Court Reporter: Not Present. (gk)

JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

Title

CV 15-06764;
CV 15-06769; CV 15-06771; CV 15-06773; CV 15-06776;
CV 15-06777; CV 15-06778; CV 15-06781; CV 15-06782;
CV 15-06785; CV 15-06787; CV 15-06788; CV 15-06791;
CV 15-06792; CV 15-06793; CV 15-06795; CV 15-06796;
CV 15-06799; CV 15-06800; CV 15-06804; CV 15-06806;
CV 15-06809; CV 15-06810; CV 15-06811; CV 15-06815;
CV 15-06816; CV 15-06817; CV 15-06820; CV 15-06824;
CV 15-06825; CV 15-06827; CV 15-06828; CV 15-06829;
CV 15-06830; CV 15-06832; CV 15-06833; CV 15-06836;
CV 15-06837; CV 15-06838; CV 15-06839; CV 15-06841;
CV 15-06844; CV 15-06845; CV 15-06846; CV 15-06847;
CV 15-06848; CV 15-06849; CV 15-06850; CV 15-06851;
CV 15-06852; CV 15-06853; CV 15-06854; CV 15-06855;
CV 15-06856; CV 15-06857; CV 15-06858; CV 15-06859;
CV 15-06862; CV 15-06863; CV 15-06865; CV 15-06868;
CV 15-06925

Date

October 26, 2015

IN RE BOSTON SCIENTIFIC CORP.

Present: The
Honorable

BEVERLY REID O’CONNELL, United States District
Judge

Renee A. Fisher

Not Present

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS)

ORDER GRANTING PLAINTIFF’S MOTION TO REMAND [21]
I.

INTRODUCTION

Pending before the Court is a motion to remand sixty-two cases that have been
recently removed from the Superior Court of California, County of Los Angeles (“Los
Angeles Superior Court”), by Defendant Boston Scientific Corporation (“Defendant”).
(Dkt. No. 21.) The Court has designated Donna Adkins v. Boston Scientific Corp., No.
CV 15-06764-BRO (AJWx) as the lead case, and Plaintiff Donna Adkins’s (“Plaintiff”)
Motion to Remand shall apply to all of the above-listed cases. After considering the
papers filed in support of and in opposition to the instant motion, the Court deems this
matter appropriate for resolution without oral argument of counsel. See Fed. R. Civ. P.
CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 1 of 12

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 15-06764 ET AL.

Title

IN RE BOSTON SCIENTIFIC CORP.

Date

October 26, 2015

78; C.D. Cal. L.R. 7-15. For the following reasons, Plaintiff’s motion is GRANTED and
these cases are remanded to the Los Angeles County Superior Court, Central District.
II.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff initiated this action on July 12, 2013, when she and sixty-four other
plaintiffs filed a complaint against Defendant in the Los Angeles Superior Court.1
(Removal ¶ 3.) Plaintiff, along with the other plaintiffs, sought damages for injuries
caused by an allegedly-defective pelvic mesh implant that Plaintiff claims was designed,
manufactured, packaged, labeled, marketed, sold, and distributed by Defendant.
(Removal ¶ 2; see also Decl. of Eva M. Weiler (“Weiler Decl.”) ¶ 1, Ex. A.) On August
28, 2013, Defendant removed the original action to this Court, claiming that the sixty-two
plaintiffs diverse from Defendant improperly joined their claims with three non-diverse
plaintiffs to defeat federal diversity jurisdiction. (Removal ¶ 4.) The Court, however,
remanded the case and declined Defendant’s request to adopt the fraudulent misjoinder
doctrine, as Ninth Circuit has yet to embrace it. See Pate v. Boston Sci. Corp., No. CV
13-06321-BRO (ECF No. 45) (C.D. Cal. Oct. 21, 2013). The Court also held that even
assuming fraudulent misjoinder was a viable doctrine in the Ninth Circuit, “Defendant
would not have met its heavy burden in demonstrating that removal was proper.” Id. at 7.
On August 5, 2013, Judge Highberger of the Los Angeles County Superior Court
severed the claims of the sixty-five plaintiffs.2 (Removal ¶ 1; see also Weiler Decl. ¶ 2,

1

The original case was styled Sherry Pate, et al. v. Boston Scientific Corp., No. BC5515037 (Los
Angeles Superior Ct.).
2

In the same order, (see Weiler Decl. ¶ 2, Ex. B), Judge Highberger also severed the claims of the
plaintiffs in three similar actions involving Boston Scientific: (1) Edgar v. Boston Scientific Corp., No.
BC-531849 (Los Angeles Superior Ct.); (2) Mauck v. Boston Scientific Corp., No. BC-515043 (Los
Angeles Superior Ct.); and, (3) Muller v. Boston Scientific Corp., No. BC-515042 (Los Angeles
Superior Ct.). Upon Defendant’s removal, the severed cases relating to Muller and Edgar were assigned
to United States District Judge Percy Anderson, while the cases relating to Mauck were assigned to
United States District Judge George Wu. See In Re Boston Sci. Corp., No. CV 15-06741-PA, slip op. at
2 n.1 (ECF No. 29) (C.D. Cal. Sept. 29, 2015).
CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 2 of 12

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 15-06764 ET AL.

Title

IN RE BOSTON SCIENTIFIC CORP.

Date

October 26, 2015

Ex. B at 2.) In the severance order,3 Judge Highberger concluded that the plaintiffs had
not asserted a right to relief arising out of the same transaction or occurrence, so joinder
was not permissible under California Code of Civil Procedure section 378. (Weiler Decl.
¶ 2, Ex. B at 2.) Each severed plaintiff was then given a unique docket number, but the
plaintiffs were not required to submit a new filing fee or complaint. (Id.)

Following the severance, the removed cases relating to Pate were then assigned to
this Court on September 11, 2015. (Dkt. No. 25.) The same day, Plaintiff filed the
instant Motion to Remand, arguing that Defendant’s removal violates the voluntaryinvoluntary rule and that it is untimely under 28 U.S.C. § 1446(c)(1). (Mot. at 2.) The
Court subsequently joined together the cases relating to the Pate severance, assigning
Donna Adkins v. Boston Scientific Corp., No. CV 15-06764-BRO (AJWx) as the lead
case and ordering that Defendant’s Opposition and Plaintiff’s Reply apply to all of the
cases listed above. (Dkt. No. 34.) Defendant timely opposed the motion, (Dkt. No. 36),
and Plaintiff filed a timely reply, (Dkt. No. 39).
III.

LEGAL STANDARD

Whether a defendant may rightfully remove a case from a state court to a federal
district court is governed entirely by statutory authorization by Congress. Libhart v.
Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). Under 28 U.S.C. § 1441,
a civil action may be removed to the district court only if that court has original
jurisdiction over the issues alleged in the state court complaint. See 28 U.S.C. § 1441(a).
Because federal courts are courts of limited jurisdiction, they possess original jurisdiction
only as authorized by the Constitution and federal statute. See, e.g., Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Pursuant to 28 U.S.C. § 1331, a federal district court has “original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the United States.” 28

3

The Court takes judicial notice of the Los Angeles County Superior Court’s severance order, as it is a
publicly-filed document. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (“[U]nder
Fed. R. Evid. 201, a court may take judicial notice of ‘matters of public record.’”) (quoting Mack v. S.
Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)); see also Papai v. Harbor Tug and Barge Co.,
67 F.3d 203, 207 n.5 (9th Cir. 1995) (“Judicial notice is properly taken of orders and decisions made by
other courts or administrative agencies.”).
CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 3 of 12

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 15-06764 ET AL.

Title

IN RE BOSTON SCIENTIFIC CORP.

Date

October 26, 2015

U.S.C. § 1331. A case “arises under” federal law if a plaintiff’s “well-pleaded complaint
establishes either that federal law creates the cause of action” or that the plaintiff’s “right
to relief under state law requires resolution of a substantial question of federal law in
dispute between the parties.” Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for S.
Cal., 463 U.S. 1, 13, 27 (1983).
Original jurisdiction may also be established pursuant to 28 U.S.C. § 1332. Under
§ 1332, a federal district court has “original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and
costs,” and the dispute is between “citizens of different states.” 28 U.S.C. § 1332. The
Supreme Court has interpreted the statute to require “complete diversity of citizenship,”
meaning it requires “the citizenship of each plaintiff [to be] diverse from the citizenship
of each defendant.” Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996). A person is a
“citizen” of the state in which he or she is domiciled, which is the place the person
resides with the intent to remain or to which they intend to return. Kanter v. WarnerLambert Co., 265 F.3d 853, 857 (9th Cir. 2001). “[A] corporation is a citizen of any state
where it is incorporated and of the state where it has its principal place of business.”
Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (citing 28
U.S.C. § 1332(c)).
To remove an action, a defendant must also comply with the procedural
requirements of removal set forth in 28 U.S.C. § 1446. Under the statute, a defendant
may remove an action within thirty days of receipt, “through service or otherwise, of a
copy of the initial pleading.” 28 U.S.C. § 1446(b)(1). However, if a case is not
removable on the basis of the initial pleading, a defendant may later remove within thirty
days of receipt “of a copy of an amended pleading, motion, order[,] or other paper from
which it may first be ascertained that the case is one which is or has become removable.”
28 U.S.C. § 1446(b)(3).
With respect to the timeliness of removal, the Ninth Circuit holds that the first
thirty-day period for removal as set forth in § 1446(b)(1) “only applies if the case stated
by the initial pleading is removable on its face.” Harris v. Bankers Life & Cas. Co., 425
F.3d 689, 694 (9th Cir. 2005). If the case is not removable based on the initial pleading,
then the second thirty-day period as set forth in § 1446(b)(3) may apply and is triggered
once “a change in the parties or other circumstance revealed in a newly-filed ‘paper’”
CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 4 of 12

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 15-06764 ET AL.

Title

IN RE BOSTON SCIENTIFIC CORP.

Date

October 26, 2015

demonstrates a basis for removal. Id. Additionally, when removal is sought on the basis
of jurisdiction conferred by § 1332, a defendant cannot remove under § 1446(b)(3) more
than one year after the commencement of the action, unless the district court finds that
the plaintiff has acted in bad faith to prevent a defendant from removing the action. 28
U.S.C. § 1446(c)(1). The one-year rule, however, does not apply where the case was
initially removable under § 1446(b)(1). Gibson v. Chrysler Corp., 261 F.3d 927, 932 n.3
(9th Cir. 2001).
IV.

DISCUSSION

Plaintiff’s Motion to Remand rests on two principal arguments: (1) the voluntaryinvoluntary rule adopted in the Ninth Circuit supports remand because the severance of
the non-diverse plaintiffs’ claims was not a voluntary act of Plaintiff; and, (2)
Defendant’s removal is untimely under § 1446(c)(1) because it was filed more than one
year after the commencement of this action. (Mot. at 2.) The Court will address each
argument in turn.
A.

Voluntary-Involuntary Rule

Plaintiff’s first argument is that the voluntary-involuntary rule prevents removal in
this case because the state court’s severance order was not a voluntary action by Plaintiff.
(Mot. at 11–12.) In California ex rel. Lungren v. Keating, 986 F.2d 346 (9th Cir. 1993),
the Ninth Circuit discussed the voluntary-involuntary rule, stating that
the plaintiff may by the allegations of his complaint determine the status
with respect to removability of a case . . . and that this power to determine
the removability of his case continues with the plaintiff throughout the
litigation, so that whether such a case nonremovable when commenced shall
afterwards become removable depends not upon what the defendant may
allege or prove or what the court may, after hearing upon the merits, in
invitum, order, but solely upon the form which the plaintiff by his voluntary
action shall give to the pleadings in the case as it progresses towards a
conclusion.
Id. at 348 (quoting Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 282 (1918)).
CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 5 of 12

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 15-06764 ET AL.

Title

IN RE BOSTON SCIENTIFIC CORP.

Date

October 26, 2015

Thus, to properly invoke the voluntary-involuntary rule, Plaintiff must have had
the power to determine the removability of the case throughout the litigation. See In re
Johnson & Johnson Cases, No. CV 15-5311-JGB, slip op. at 5–6 (C.D. Cal. Aug. 24,
2015) (holding that where the named plaintiff was diverse from the defendants but other
plaintiffs were not, “the power to defeat removal [was] wholly out of Plaintiff’s hands
from the commencement of [the] case. That power was held by other parties who
voluntarily consented to join Plaintiff’s suit. Although Plaintiff benefitted from the [nondiverse] plaintiffs’ power to defeat removal, it does not follow that Plaintiff ever
personally held the power to defeat removal herself. Having never personally possessed
the power to defeat removal, Plaintiff cannot now assert that this power to determine the
removability of [her] case continues with [her] throughout the litigation . . . .”) (internal
quotation marks omitted). Here, Plaintiff does not possess any such power, as she is
diverse from Defendant for purposes of § 1332 and thus could not herself prevent
removal at any time. If there existed a power to preclude removal in this case, it lay with
the plaintiffs who are citizens of the same state as Defendant and who by the nature of
their citizenship frustrate the complete diversity requirement. Any ability Plaintiff
possessed to thwart removal was merely derivative of the non-diverse plaintiffs’ power to
do so. Accordingly, because Plaintiff herself cannot and could not defeat removal, she
cannot rely on the voluntary-involuntary rule to remand this action.
B.

28 U.S.C. § 1446(c)(1)
1.

Removal Is Untimely Pursuant to § 1446(c)(1)

As discussed above, where a defendant’s removal relies on § 1332 as the basis for
federal jurisdiction, the defendant cannot remove under § 1446(b)(3) more than one year
after the “commencement” of the action. 28 U.S.C. § 1446(c)(1). Defendant proffers
many arguments in an attempt to avoid application of the one-year rule in these cases. In
one such argument, Defendant contends that § 1446(c)(1) does not apply here because the
claims of the individual plaintiffs were initially removable under § 1446(b)(1). (Removal
¶ 44; Opp’n at 17–18.) More specifically, Defendant maintains that because the
individual plaintiffs in these actions were diverse from Defendant during the initial state
court proceeding, and because each individual plaintiff sought damages in excess of
$75,000, each plaintiff’s claim was removable at the outset of the state court action. (See
id.) Thus, according to Defendant, §§ 1446(b)(3) and 1446(c)(1) do not apply. (Removal
CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 6 of 12

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 15-06764 ET AL.

Title

IN RE BOSTON SCIENTIFIC CORP.

Date

October 26, 2015

¶¶ 40–41.) Rather, Defendant maintains removal is proper under § 1446(b)(1) because
Defendant filed the removal within thirty days of the state court’s severance, which
effectively “commenced” the present action. (Id.)
The Court is not persuaded by this argument. Defendant overlooks that § 1441
does not provide for the removal of individual “claims.” See 28 U.S.C. § 1441. Rather,
it provides for the removal of “actions.” See id.; see also In re Johnson & Johnson
Cases, slip op. at 7 (“[A]ny facial plausibility of this argument is based on its conflating
‘cases,’ ‘claims,’ and ‘actions.’ In fact, Plaintiff’s claims were not initially removable on
diversity grounds because § 1441 does not provide for the removal of individual claims,
only for the removal of actions. See § 1441(a). While the removal statute at one time
provided for removal of individual parts of an action, the statute has since been amended
to remove these provisions.”) (emphasis in original). Here, of the sixty-five original
plaintiffs in the state-court action, three were citizens of the same state as Defendant.
(Opp’n at 16.) Thus, the action was not initially removable under § 1332 because
complete diversity did not exist. As a result, § 1446(b)(1) does not apply here, and
Defendant must have satisfied the procedural requirements of §§ 1446(b)(3) and
1446(c)(1) to properly remove the above-listed cases.
Accordingly, the principal issue here is when the case “commenced” for purposes
of § 1446(c)(1). Less than thirty days after Judge Highberger’s August 5, 2015 severance
of the non-diverse plaintiffs’ claims, Defendant filed its removal. (Compare Dkt. No. 1,
with Weiler Decl. ¶ 2, Ex. B.) Therefore, if, as Defendant argues, the present case
“commenced” upon the severance of those claims, Defendant satisfied the thirty-day
requirement of § 1446(b)(3). See 28 U.S.C. § 1446(b)(3). However, if the case
“commenced” when the original plaintiffs filed the state court action, the one-year rule
bars removal, as over two years have passed since the plaintiffs filed their complaint in
state court on July 12, 2013. Id.
While neither the Ninth Circuit nor any other circuit court has defined
“commencement” under § 1446(c)(1), some district courts have addressed the issue of
whether a state court severance “commences” a new action, thereby restarting the oneyear time limit. The courts are split in their conclusions. Some district courts have held
that a severance restarts the one-year time period. See, e.g., Farmer v. St. Paul Fire &
Marine Ins. Co., No. CV-05-161-D, 2006 WL 1134238, at *2 (N.D. Miss. Apr. 24, 2006)
CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 7 of 12

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 15-06764 ET AL.

Title

IN RE BOSTON SCIENTIFIC CORP.

Date

October 26, 2015

(“[T]he court finds that the state court’s severance of the Plaintiff’s claims against
[defendant] from the original action into a separate and new action restarted Section
1446(b)’s one-year time limit for removal of diversity actions . . . .”); Crump v. Wal-Mart
Grp. Health Plan, 925 F. Supp. 1214, 1220 (W.D. Ky. 1996) (“Since the state court’s act
of severing [plaintiff’s] claim created a separate cause of action, then it only logically
follows that [§ 1446(c)’s] one-year time limitation for filing diversity jurisdiction
removal began with that court’s action.”); Pennsylvania Emp. Benefit Tr. Fund v.
Astrazeneca Pharm., LP, No. CV 08-04787-JF, 2008 WL 4891387, at *1 (E.D. Pa. Nov.
13, 2008) (rejecting the plaintiff’s argument that the defendant’s removal was untimely
under § 1446(c)(1) when the defendant filed the removal over one year after the plaintiff
filed the original complaint, reasoning that the state court severed the claim, the plaintiff
filed a new complaint, and the defendant removed within thirty days of the severance).
Defendant also cites a Fifth Circuit case to support its argument that the present
action “commenced” when Judge Highberger severed the claims. (Removal ¶ 33). In
United States v. O’Neil, the court stated that “[w]here a single claim is severed out of a
suit, it proceeds as a discrete, independent action, and a court may render a final,
appealable judgment in either one of the resulting two actions notwithstanding the
continued existence of unresolved claims in the other.” 709 F.2d 361, 368 (5th Cir.
1983). Setting aside the fact that O’Neil is not binding authority, Defendant’s reliance on
this case is misplaced, as the Fifth Circuit was not addressing whether a state court’s
severance resets the one-year limitation period. See id. In fact, the timing restriction was
not mentioned in the case at all. See id. Rather, the court was determining whether the
district court had severed the claims under Federal Rule of Civil Procedure 21. Id.
Accordingly, this Court declines to construe the Fifth Circuit’s out-of-context statement
as a conclusion that a state court’s severance of claims creates a newly “commenced”
action for purposes of § 1446(c)(1).
The other set of district court cases addressing the severance issue holds that a case
“commences” when the state court action is filed, not when the state court issues its
severance order. See, e.g., Wejrowski v. Wyeth, No. CV-06-292-CDP, 2012 WL
2367388, at *3 (E.D. Mo. June 21, 2012) (“Thus, like a Rule 21 severance, this severed
claim proceeds as a discrete, independent action and the trial court may render final,
appealable judgment on the severed claim . . . . But even though the plaintiffs’ second
amended complaint will proceed as an independent claim from the point it was severed, it
CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 8 of 12

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 15-06764 ET AL.

Title

IN RE BOSTON SCIENTIFIC CORP.

Date

October 26, 2015

was still part of the original case filed on July 7, 2004, and the state court recognized that
it was commenced then. Defendant’[s] opportunity to remove was limited to one year
from that original commencement date, and the intervening removal, remand, and
severance have no effect on the one-year time limit.”) (internal quotation marks and
citation omitted); Clark v. Wyeth, No. CV-06-275-RWS, 2012 WL 3027916, at *1 (E.D.
Mo. July 24, 2012) (holding that the case “commenced” the day it was filed in state court,
and noting that “the state court did not dismiss the claims or require the filing of new
actions. Instead, the severance order required the plaintiffs to file separate amended
petitions. No filing fee was imposed and no service of process was required for the
amended petitions.”); Perez v. Lancer Ins. Co., No. C-06-388, 2006 WL 2850065, at *2
(S.D. Tex. Oct. 4, 2006) (holding that the defendant was time-barred from removing the
case because the case did not “commence” on severance of the state law claims, but
rather when the case was filed in state court).
In an action in this district that was directly related and factually identical to the
present case,4 Judge Anderson held that, for purposes of § 1446(c)(1), “the date of the
‘commencement of the action’ of each individual plaintiff’s claims was the date of the
filing of the initial complaint” in state court. In re Boston Sci. Corp., No. CV-15-06741,
slip op. at 4 (C.D. Cal. Sept. 29, 2015). In coming to this conclusion, Judge Anderson
relied on the fact that “Judge Highberger did not order the filing of new complaints or
filing fees when he severed the claims of the individual plaintiffs.” Id. As such, the state
court “otherwise treated those [severed] claims as continuations of the claims previously
asserted” in the original actions. Id.
Likewise, in Perez v. Lancer Insurance Co., the Southern District of Texas stated
that the policies behind § 1446 support a finding that cases commence when the original
state court proceeding is filed. Perez, 2006 WL 2850065, at *4. “As the Fifth Circuit has
noted, Congress enacted the one-year time limit to ‘address[ ] problems that arise from a
change of parties as an action progresses toward trial in state court, such as when the
elimination of parties may create for the first time a party alignment that supports
diversity jurisdiction.’” Id. (quoting New York Life Ins. Co. v. Deshotel, 142 F.3d 873,
886 (5th Cir. 1998)) (brackets in original); see also H.R. Rep. No. 100-889 (1988).
“Congress found that ‘[r]emoval late in the proceedings may result in substantial delay

4

See discussion supra note 2.

CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 9 of 12

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 15-06764 ET AL.

Title

IN RE BOSTON SCIENTIFIC CORP.

Date

October 26, 2015

and disruption’ of a case, and enacted the one-year limit as ‘a means of reducing the
opportunity for removal after substantial progress has been made in state court.’” Id.
(quoting New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 886 (5th Cir. 1998)); see also
H.R. Rep. No. 100-889 (1988). The Perez court reasoned that the state court’s severance
order was “precisely the kind of elimination of parties creating for the first time a party
alignment that supports diversity jurisdiction that motivated Congress” to codify the oneyear time limit. Id. (internal quotation marks omitted). It further explained that to permit
the defendant to remove over a year after the plaintiffs filed the initial action in state
court would cause the type of “substantial delay and disruption” Congress sought to
prevent by creating the one-year limit. Id.
This Court agrees with the line of cases holding that when a state court severs
previously joined claims, the severance does not “commence” a new action for purposes
of § 1446(c)(1). As applied here, each individual plaintiff’s claim commenced on July
12, 2013—the date the initial complaint was filed in Pate. In coming to this decision, the
Court considers that the removal statute is strictly construed against removal jurisdiction.
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Further, “[f]ederal jurisdiction
must be rejected if there is any doubt as to the right of removal.” Id. These principles,
coupled with the fact that Congress created the one-year limit to avoid “removal late in
the proceedings” because it “may result in substantial delay and disruption,” support the
Court’s conclusion that this action commenced for purposes of § 1446(c)(1) when the
original plaintiffs filed their complaint in state court on July 12, 2013. H.R. Rep. No.
100-889 (1988). Moreover, that Judge Highberger did not require the filing of a new
complaint or filing fees after severing the claims further supports this conclusion, as it
demonstrates the court’s treatment of those claims as continuations of the original action.
See In re Boston Sci. Corp., No. CV-15-06741, slip op. at 4 (C.D. Cal. Sept. 29, 2015).
Accordingly, the Court finds that so long as Plaintiff did not act in bad faith to bar
Defendant’s removal under § 1446(c)(1), Defendant failed to timely remove this case.
2.

Plaintiff Did Not Engage in Bad Faith

As discussed above, the one-year rule does not apply if Plaintiff acted in bad faith
to prevent Defendant from removing the action. See U.S.C. § 1446(c)(1). Defendant
argues that by joining her claims with sixty-one diverse and three non-diverse plaintiffs,
Plaintiff acted in bad faith to defeat diversity jurisdiction. (Opp’n at 16.) Plaintiff, on the
CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 10 of 12

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 15-06764 ET AL.

Title

IN RE BOSTON SCIENTIFIC CORP.

Date

October 26, 2015

other hand, argues that bad faith is a high threshold and that, absent any other evidence,
joining three non-diverse plaintiffs in the original complaint does not meet that high
standard. (Mot. at 18–19.) Plaintiff also points out that this Court previously remanded
this case and in doing so did not find that there was fraudulent misjoinder. (Mot. at 19.)
While the Ninth Circuit has not addressed what conduct meets the bad faith
requirement under § 1446(c)(1), bad faith carries a high threshold in the context of
determining sanctions. Escalante v. Burlington Nat’l Indem., Ltd., 2014 WL 6670002, at
*3 (C.D. Cal. Nov. 24, 2014) (“While the bad-faith standard in regard to § 1446 is
unclear, the Ninth Circuit has previously held that the requirement of bad-faith, in the
context of awarding sanctions, carries with it a high threshold and entails actions
tantamount to recklessly raising a frivolous argument or disrupting and hindering court
proceedings.”) (citing Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th
Cir. 1997)). “Previous examples of bad faith include removal-defeating strategies such as
fraudulently joining parties to destroy diversity or refraining to serve defendants until the
passage of the one-year deadline.” Id.
The Court finds Plaintiff did not engage in bad faith by joining non-diverse
plaintiffs in the original action. While Judge Highberger severed the non-diverse
plaintiffs’ claims and found that joinder was not appropriate, he did not conclude that the
plaintiffs’ claims were fraudulently joined. (See Weiler Decl. ¶ 2, Ex. B at 2.) A finding
of misjoinder is not the same as a finding of bad faith. See In re Boston Sci. Corp., No.
CV-15-06741, slip op. at 5 (C.D. Cal. Sept. 29, 2015). Moreover, this Court declined to
find fraudulent joinder when it previously remanded a related action. See Pate v. Boston
Sci. Corp., No. CV 13-06321-BRO (ECF No. 45) (C.D. Cal. Oct. 21, 2013). Defendant
has also not pointed to any conduct preventing it from seeking severance prior to July
2015, when it eventually attempted to sever the plaintiffs’ claims. Additionally, there is
no evidence before the Court indicating that Defendant could not have sought severance
and removed the action within the one-year time limit. As the removing party, Defendant
bears the burden of demonstrating that Plaintiff has acted in bad faith. NKD Diversified
Elecs., Inc. v. First Mercury Ins. Co., No. CV-14-00183-AWI, 2014 WL 1671659, at *3
(N.D. Cal. Apr. 28, 2014). Here, Defendant fails to carry its burden.

CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 11 of 12

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 15-06764 ET AL.

Title

IN RE BOSTON SCIENTIFIC CORP.

Date

October 26, 2015

V.

CONCLUSION

As explained above, the Court finds that although Plaintiff cannot rely on the
voluntary-involuntary rule to remand the case, Defendant’s removal is untimely under
§ 1446(c)(1), and Plaintiff did not engage in bad faith to prevent removal. Accordingly,
Plaintiff’s Motion to Remand is GRANTED. This case is hereby REMANDED to the
Los Angeles Superior Court, Central District. The hearing scheduled for Wednesday,
October 28, 2015, at 1:30 p.m., is VACATED.
:

IT IS SO ORDERED.
Initials of
Preparer

rf

CV-90 (06/04)

CIVIL MINUTES – GENERAL

Page 12 of 12