McCarty et al v. Johnson & Johnson et al

Filing 13

ORDER GRANTING Plaintiffs' Motion to Amend Complaint to Join Defendant and Remand to State Court 7 , signed by Judge Oliver W. Wanger on 7/1/10: CASE REMANDED to Fresno County Superior Court; Copy of remand order sent to other court. (CASE CLOSED)(Hellings, J)

Robert B. Abel, Jr. Esq. S.B. # 141405 Law Offices of Robert B. Abel, Jr. The Standard Oil Building 225 Bush Street, 16th Floor San Francisco, CA 94104 Tel: [phone] Fax: [phone] [e-mail] Attorney for Plaintiffs LYNN MARIE MCCARTY and LARRY DALE MCCARTY UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION LYNN MARIE MCCARTY and LARRY DALE MCCARTY, Plaintiff, vs. JOHNSON & JOHNSON, DePUY, INC., DePUY ORTHOPAEDICS, INC., STEVE WHITFIELD and DOES 1 through 100, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:10-CV-00350 ORDER GRANTING PLAINTIFFS' MOTION TO AMEND COMPLAINT TO JOIN DEFENDANT AND REMAND TO STATE COURT Complaint Filed: December 15, 2009 Trial Date: unassigned Assigned to: Hon. Oliver W. Wanger Date: June 14, 2010 Time: 10:00 a.m. Dept.: Hon. Oliver W. Wanger, Courtroom 3

On June 14, 2010, plaintiffs' motion to amend complaint to join defendant and remand to state court came before this court for hearing. The court having reviewed and considered the moving papers and the parties' oppositions thereto and having heard oral argument, and GOOD CAUSE APPEARING, IT IS HEREBY ORDERED: // // // // //

PROOF OF SERVICE

Defendant Steve Whitfield was not fraudulently joined to the strict liability claim, therefore this case is REMANDED to Fresno County Superior Court (Unlimited Jurisdiction) for lack of federal jurisdiction. Even if he were, plaintiffs can state a claim against San Joaquin Valley Orthopaedics, Inc. for strict liability. Amendment to add San Joaquin Valley Orthopaedics, Inc. is proper because plaintiffs meet all six factors expressed in IBC Aviation Services v. Companies Mexicanna de Aviation, 125 F.Supp. 2d 1008 (N.D. Cal. 2000). Plaintiffs shall pursue amendment to join San Joaquin Valley Orthopaedics, Inc. as a defendant in Fresno County Superior Court (Unlimited Jurisdiction). Plaintiffs' request for attorney's fees and costs is DENIED.

IT IS SO ORDERED. Dated:

July 1, 2010
DEAC_Signature-END:

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
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PROOF OF SERVICE