Pierce v. Frink et al

Filing 22

MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO SEVER CLAIMS, DEFENDANTS' MOTION TO STAY, AND PLAINTIFF'S MOTION TO REMAND signed by Senior Judge William B. Shubb on 10/31/2017: IT IS ORDERED that 7 Defendants' Motion to stay be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that 8 Plaintiff's Motion to remand be, and the same hereby is, DENIED WITHOUT PREJUDICE. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOROTHY A. PIERCE,
Plaintiff,

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----oo0oo---CIV. NO 2:17-1731 WBS DB

v.
NELSON C. FRINK, M.D.; COOK
INCORPORATED; COOK
INCORPORATED a/k/a COOK
MEDICAL INCORPORATED; COOK
GROUP INCORPORATED; COOK
MEDICAL, LLC; and DOES 1
through 60,

MEMORANDUM AND ORDER RE:
DEFENDANTS’ MOTION TO SEVER
CLAIMS, DEFENDANTS’ MOTION TO
STAY, AND PLAINTIFF’S MOTION TO
REMAND

Defendants.

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----oo0oo----

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Plaintiff Dorothy A. Pierce brought this action against

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defendants Nelson C. Frink (“Frink”); Cook Incorporated; Cook

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Group Incorporated; and Cook Medical, LLC (collectively “Cook”)

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seeking relief based on product liability claims in connection

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with a Cook medical device that was implanted into plaintiff by

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Frink.

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diversity jurisdiction.

Cook removed the action to this court on the basis of
Presently before the court are
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plaintiff’s Motion to remand, Cook’s Motion to sever claims

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against Frink, and Cook’s Motion to stay this case pending

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transfer to the Southern District of Indiana.

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I.

Factual and Procedural History

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On May 5, 2011, Frink, a California citizen, (Notice of

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Removal ¶ 15 (Docket No. 1)),

implanted plaintiff, also a

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California citizen, with a Gunther Tulip, which is an inferior

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vena cava (“IVC”) filter manufactured and sold by Cook.

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¶¶ 14-15 (Docket No. 1-1).)

(Compl.

Frink did not contribute to the

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design or manufacturing of the Cook IVC filter.

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incorporated in, and has its principal place of business in,

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Indiana.

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tilted and perforating into plaintiff’s adjacent organs, placing

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plaintiff at risk of future migration, perforations, and/or

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fractures from the retained filter.

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Plaintiff will require ongoing medical care and monitoring for

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the rest of her life because of this.

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(Notice of Removal ¶¶ 11-13.)

Cook is

The Gunther Tulip is now

(Compl. ¶¶ 17-18.)

(Id.)

Issues with the Gunther Tulip have resulted in hundreds

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of actions across the United States against Cook for their sale

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of these purportedly defective devices.

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Multidistrict Litigation (“JPML”) has consolidated hundreds of

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these cases into a federal multidistrict litigation in the United

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States District Court for the Southern District of Indiana (“MDL

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court”), determining that centralization was appropriate for

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cases involving allegations of defects in the various models of

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Cook’s IVC filters.

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Marketing, Sales Practices and Prod. Liab. Litig., MDL No. 2570

The Judicial Panel on

In re: Cook Medical, Inc., IVC Filters

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(S.D. Ind. 2017).1

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On July 20, 2017, plaintiff filed suit in Sutter County

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Superior Court alleging negligence by Frink in failing to (a)

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monitor plaintiff after implantation of the Gunther Tulip and (b)

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implement a follow up plan to monitor, assess, or remove the

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Gunther Tulip once the device was no longer needed.

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54.)

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to warn, (b) strict liability design defect, (c) negligence in

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failing to use reasonable care in designing, manufacturing,

(Compl. ¶

As to Cook, plaintiff alleged (a) strict liability failure

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marketing, labeling, packaging, and/or selling the Gunther Tulip,

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(d) negligence for failure to recall the Gunther Tulip, (e)

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breach of express and implied warranties, and (f) negligent

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misrepresentation.

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federal court on August 18th, 2017.

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(Id. ¶¶ 57-97.)

The case was removed to
(Docket No. 1.)

On August 22, 2017, the JPML issued a conditional

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transfer, stating that this case “involve[s] questions of fact

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that are common to the actions previously transferred to the

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Southern District of Indiana.”

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Remand (Docket No. 16), Ex. B, Aug. 22, 2017 MDL Conditional

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Transfer Order.)

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II.

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(Cook’s Opp’n to Pl.’s Mot. to

Plaintiff has opposed this order.

Discussion
A.

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Order of Pending Motions
As an initial matter, the court must determine which

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motion to entertain first.

Generally, jurisdiction is a

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preliminary matter that should be resolved before all others.

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Smith v. Mail Boxes, Etc., 191 F. Supp. 2d 1155, 1157 (E.D. Cal.

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Master Case No. 1:14-ml-2570-RLY-TAB.
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2002) (“[J]urisdictional issues should be resolved before the

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court determines if a stay is appropriate.”).

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approach changes when deference to an MDL court will further “the

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uniformity, consistency, and predictability in litigation that

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underlies the MDL system.”

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Inc., 325 F. Supp. 2d 1049, 1053 (N.D. Cal. 2004).

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can resolve a motion to remand when “the motion raises issues

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likely to arise in other actions pending in [the consolidated

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action].”

However, the

Conroy v. Fresh Del Monte Produce
The MDL court

Id.; see also In re Vioxx Prods. Liab. Litig., 360 F.

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Supp. 2d 1352, 1354 (J.P.M.L. 2005) (“[M]otions to remand ... can

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be presented to and decided by the transferee judge.”).

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Several courts, including this one, have applied the

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Conroy methodology when considering simultaneous motions to

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remand and stay in the MDL context.

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Volkswagen Grp. of Am., Inc., Civ. No. 16-cv-27-GFVT, 2016 WL

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3040492, at *2-6 (E.D. Ky. May 25, 2016); Leeson v. Merck & Co.,

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Inc., Civ. No. 2:05-2240 WBS PAN, 2006 WL 3230047, at *2-4 (E.D.

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Cal. Jan. 27, 2006).

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merits of the motion to remand” and consider it in full if “this

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preliminary assessment suggests that removal was improper.”

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Conroy, 325 F. Supp. 2d at 1053.

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issue appears factually or legally difficult, the court should

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determine whether identical or similar jurisdictional issues have

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been raised in other cases that have been or may be transferred

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to the MDL proceeding.”

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both difficult and similar or identical to those in cases

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transferred or likely to be transferred, the court should stay

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the action.”

See, e.g., Beshear v.

“First, the court should [scrutinize] the

Id.

Second, “if the jurisdictional

“[I]f the jurisdictional issue is

Id.; see also Meyers v. Bayer AG, 143 F. Supp. 2d
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1044, 1048-49 (E.D. Wis. 2001).

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Applying this methodology, the court finds that a stay

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is proper.

First, in light of Cook’s diversity jurisdiction

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arguments, “removal was not plainly improper.”

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WL 3230047, at *3.

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the parties are in complete diversity and the amount in

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controversy exceeds $75,000.

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Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).

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presents no argument regarding the amount in controversy

See Leeson, 2006

Federal diversity jurisdiction exists when

Matheson v. Progressive Specialty
Plaintiff

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requirement or the timeliness of Cook’s removal, but instead

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argues that Frink’s California citizenship defeats complete

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diversity.

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Federal Rule of Civil Procedure 21 to retain diversity

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jurisdiction over a case by dropping a non-diverse party if that

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party is not necessary and indispensable to the case under Rule

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19.

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(9th Cir. 2002).

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cannot be given to existing parties in the party’s absence; (2)

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disposition in the party’s absence may impair the party’s ability

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to protect its interest in the controversy; or (3) the party’s

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absence would expose existing parties to substantial risk of

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double or inconsistent obligations.

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A party is “indispensable” under Rule 19(b) when “in equity and

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good conscience” the action should not be allowed to proceed

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without that party.

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Univ. Of Cal., 765 F.3d 1010, 1026-28 (9th Cir. 2014).

However, district courts have discretion under

See Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1022
A party is “necessary” if: (1) complete relief

See Fed. R. Civ. P. 19(a).

Fed. R. Civ. P. 19(b); see also White v.

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Cook removed this case to federal court on two

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independent theories: (1) the theory that Frink should be severed
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from the case under Federal Rule of Civil Procedure 21; and (2)

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fraudulent misjoinder.

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indispensable to this action.

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Supreme Court held that a physician who performed an implant

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surgery was not a necessary party to a product liability action

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against the medical device manufacturer.

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Applying this reasoning, Frink is not necessary for the

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resolution of plaintiff’s product liability claims here.

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Pursuant to Rule 19(b), because Frink is not a necessary party,

Frink appears to be neither necessary nor
In Temple v. Synthes Corp., the

498 U.S. 5 (1990).

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he cannot be indispensable.

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under Rule 19(b) is necessary, because the threshold requirements

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of Rule 19(a) have not been satisfied.”)

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preliminary assessment required by Conroy does not suggest that

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removal was improper or that Cook’s diversity jurisdiction

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arguments are baseless.

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See id. at 8 (“Here, no inquiry

Accordingly, the

Second, the jurisdictional issue here is similar to

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jurisdictional issues in cases already transferred to the MDL

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court.

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other IVC filter cases on the basis of fraudulent joinder,

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including three in the Ninth Circuit.2

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Cook has already removed and sought transfer of twelve

Some of these cases have

See Osorio v. Cook Group Incorporated et al., Civ. No.
5:17-1146 (C.D. Cal.); Berman-Cheung et al. v. Cook Group
Incorporated et al., Civ. No. 5:17-2564 (N.D. Cal.); Kay v.
Regents of the University of California et al., Civ. No. 3:171512 (S.D. Cal.) (remanded without addressing Cook’s motion to
stay or the court’s power to sever non-diverse parties); LowtherBerman v. Cook Incorporated et al., Civ. No. 2:17-3852, (S.D. W.
Va.); Strickland v. Proffitt et al., Civ. No. 3:17-2059 (N.D.
Tex.); Schmellick v. Cook Incorporated et al., Civ. No. 2:172640-WB (E.D. Pa.); Pleasant v. Cook Incorporated et al., Civ.
No. 3:17-1498 (N.D. Tex.); Givney v. Savage et al., Civ. No.
3:17-01432 (N.D. Tex.); Jewett v. Baxter et al., Civ. No. 5:175036 (D.S.D.); Lowicki v. Lung et al., Civ. No. 2:17-1615 (D.
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already been transferred to the MDL.3

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routinely issues conditional transfer orders for cases such as

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this one, even where a motion to remand is pending.

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In re: Cook Medical, Inc., IVC Filters Marketing, Sales Practices

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and Prods. Liab. Litig., MDL No. 2570 (J.P.M.L. Dec. 7, 2016),

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(Docket No. 172) (“We have held that a motion for remand alone

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generally is an insufficient basis to vacate a conditional

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transfer order.

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the transferee judge.”).

Furthermore, the JPML

See, e.g.,

Plaintiff can present her motion for remand to
Consequently, “identical or similar

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jurisdictional issues have been raised in other cases that have

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been or may be transferred to the MDL proceeding.”

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F. Supp. 2d at 1053

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Conroy, 325

Further, this case shares “common question[s] of fact”

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with other cases already transferred to the MDL court.

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§ 1407(a).

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claims injuries allegedly arising from the placement of a Cook

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Gunther Tulip into plaintiff.

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identical to the allegations plaintiffs in all other cases in the

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Cook MDL make--that one of Cook’s IVC filters was defectively

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designed and that Cook failed to provide adequate warnings about

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the filter.

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Filters Marketing, Sales Practices, and Prod. Liab. Litig., MDL

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No. 2570 (Jan. 28, 2015)(ECF No. 213)(Notice of Filing Master

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Consolidated Compl. for Individual Claims).

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Nev.) Collins, et al. v. Cook Group Incorporated, et al., Civ.
No. 4:16-2140 (E.D. Mo.); Halinski et al. v. Cook Group
Incorporated et al., Civ. No. 4:16-2141 (E.D. Mo.).

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28 U.S.C.

Plaintiff here, like plaintiffs in the MDL action,

Plaintiff’s allegations are nearly

See Compl.; c.f. In re Cook Medical, Inc., IVC

See, e.g., Berman-Cheung (N.D. Cal), Osoroio (C.D.
Cal), Jewett, Lowicki, and Schmellick.
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Because jurisdiction is a threshold issue and the MDL

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court has many cases with pending motions to remand, the MDL

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court will necessarily need to rule on the motions to remand. The

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Conroy methodology suggests that the court should rule upon

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defendants’ motion to stay.

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B.

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Motion to Stay
The power to stay proceedings “is incidental to the

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power inherent in every court to control the disposition of the

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cases on its docket with economy of time and effort for itself,

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for counsel, and for litigants.”

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248, 254 (1936).

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are particularly appropriate when the parties contest issues that

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are “likely to arise in other actions pending” in the

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consolidated proceedings.

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evaluating whether to stay proceedings, the court is concerned

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with balancing competing interests and should consider: “(1)

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potential prejudice to the non-moving party; (2) hardship and

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inequity to the moving party if the action is not stayed; and (3)

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the judicial resources that would be saved by avoiding

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duplicative litigation if the cases are in fact consolidated.”

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Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal.

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1997); see also Landis, 299 U.S. at 254-55; CMAX, Inc. v. Hall,

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300 F.2d 265, 268 (9th Cir. 1962).

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Landis v. N. Am. Co., 299 U.S.

Moreover, a stay and deference to the MDL court

Conroy, 325 F. Supp. 2d at 1053.

In

First, as to prejudice to plaintiff, plaintiff argues

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that a stay will place her case in the MDL court with hundreds of

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other cases where she will be unfairly prejudiced by a delay in

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proceedings.

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11).)

(Pls.’ Opp’n to Cook’s Mot. to Stay 10 (Docket No.

The court is aware that there may be some delay or
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inconvenience to plaintiff if a stay is granted.

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this case is transferred to the MDL, the efficiencies gained

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through the MDL will benefit all parties.”

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Grp. of Am., Inc., Civ. No. 16-754 WMW TNL, 2016 WL 3004631, at

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*2 (D. Minn. May 24, 2016).

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plaintiff from seeking remand in the MDL court, and plaintiff may

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very well benefit from the perspectives of plaintiffs' counsel in

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other cases with pending motions to remand.

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courts have stayed cases pending transfer to an MDL court when

However, “if

Lessard v. Volkwagen

Granting a stay will not preclude

Further, other

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“plaintiffs have not demonstrated any prejudice in the event of a

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stay except the slight delay in deciding the remand motion.”

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See, e.g., Med. Soc’y of N.Y. v. Conn. Gen. Corp., 187 F. Supp.

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2d 89, 92 (S.D.N.Y. 2001).

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particular action might inconvenience or delay some parties to

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that action, such a transfer often is necessary to further the

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expeditious resolution of the litigation taken as a whole.”

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(Cook’s Mem. in Supp. of Mot. to Stay, Ex. A, Aug. 1 JPML

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Transfer Order).

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Moreover, “[w]hile transfer of a

Second, the potential hardship and inequity to Cook

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weighs heavily in favor of a stay.

If this court considers and

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denies plaintiff’s motion to remand, plaintiff may have a second

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chance before the MDL court if the case is subsequently

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transferred because the MDL court will necessarily need to

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address motions to remand in the several cases already

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transferred.

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same motion repeatedly brought by the same plaintiff.”

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2006 WL 3230047, at *4.

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that defendants improperly removed this case but the MDL court

“[Defendants] should not have to defend against the
Leeson,

Conversely, if this court determines

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holds removal was proper in similar cases, defendants will be

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stuck with a decision in this case that is inconsistent with the

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majority of other similar cases.

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No. 13-2466 JST, 2013 WL 3889159, at *2 (N.D. Cal. July 26, 2013)

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(“On the other hand, Defendants would face the risk of

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unnecessary proceedings and inconsistent rulings on recurring

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questions of law and fact if the case is not stayed.”).

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defendants would not be able to appeal an order granting remand.

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See Kunzi v. Pan Am. World Airways, Inc., 833 F.2d 1291, 1293

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(9th Cir. 1987) (“Remand orders ... are immune from appellate

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review ... even if the district court’s jurisdictional decision

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was erroneous.”).

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potentially respond to any other pretrial matters raised by

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plaintiffs that the MDL court could decide.

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adjudicated by this court increases the risk of inconsistent

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rulings and prejudices defendants’ ability to defend themselves

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in the actions with similar allegations and issues.

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2013 WL 3889159, at *2.

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See A.D. v. Pfizer, Inc., Civ.

Yet

Denying a stay will also require defendants to

Each pretrial matter

See Pfizer,

Third, judicial economy weighs in favor of a stay.

The

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goal of the MDL court is to coordinate pretrial management of

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actions with common facts.

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the JPML's decision to consolidate this action in the MDL court

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increases efficiency and consistency, especially “when the

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pending motions raise issues likely to be raised in other cases.”

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Manual for Complex Litigation (Fourth) § 22.35; see Meyers, 143

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F. Supp. 2d at 1053 (“[J]udicial economy clearly favors a stay”

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when the “other cases present the same or a similar issue.”).

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majority of courts have concluded that it is often appropriate to

See 28 U.S.C. § 1407.

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A stay pending

“A

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stay preliminary pretrial proceedings while a motion to transfer

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and consolidate is pending with the MDL Panel because of the

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judicial resources that are conserved.”

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1362.

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its energies familiarizing itself with the intricacies of a case

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that would be heard by another judge.”

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Rivers, 980 F. Supp. at

Absent a stay, “this Court will have needlessly expended

Id. at 1360.

If this case is transferred to the MDL court, the MDL

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court will potentially be in a better position to address

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plaintiff’s motion to remand and any other pretrial matters.

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“Given the fact that hundreds of similar cases have been

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transferred already, and the likelihood of many more cases being

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in a similar procedural posture, the interests of judicial

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economy and the threat of inconsistent rulings outweighs any

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potential prejudice to the [plaintiff].”

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3040492, at *8.

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motion to stay the proceedings pending transfer of this action to

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the MDL court.

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Beshear, 2016 WL

Accordingly, the court will grant defendants’

IT IS THEREFORE ORDERED that defendants’ Motion to stay
be, and the same hereby is, GRANTED.

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IT IS FURTHER ORDERED that plaintiff’s Motion to remand

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be, and the same hereby is, DENIED WITHOUT PREJUDICE.

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Dated:

October 31, 2017

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