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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 DOROTHY A. PIERCE, Plaintiff, 13 14 15 16 17 18 ----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. 19 20 21 ----oo0oo---- 22 Plaintiff Dorothy A. Pierce brought this action against 23 defendants Nelson C. Frink (“Frink”); Cook Incorporated; Cook 24 Group Incorporated; and Cook Medical, LLC (collectively “Cook”) 25 seeking relief based on product liability claims in connection 26 with a Cook medical device that was implanted into plaintiff by 27 Frink. 28 diversity jurisdiction. Cook removed the action to this court on the basis of Presently before the court are 1 1 plaintiff’s Motion to remand, Cook’s Motion to sever claims 2 against Frink, and Cook’s Motion to stay this case pending 3 transfer to the Southern District of Indiana. 4 I. Factual and Procedural History 5 On May 5, 2011, Frink, a California citizen, (Notice of 6 Removal ¶ 15 (Docket No. 1)), implanted plaintiff, also a 7 California citizen, with a Gunther Tulip, which is an inferior 8 vena cava (“IVC”) filter manufactured and sold by Cook. 9 ¶¶ 14-15 (Docket No. 1-1).) (Compl. Frink did not contribute to the 10 design or manufacturing of the Cook IVC filter. 11 incorporated in, and has its principal place of business in, 12 Indiana. 13 tilted and perforating into plaintiff’s adjacent organs, placing 14 plaintiff at risk of future migration, perforations, and/or 15 fractures from the retained filter. 16 Plaintiff will require ongoing medical care and monitoring for 17 the rest of her life because of this. 18 (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 19 of actions across the United States against Cook for their sale 20 of these purportedly defective devices. 21 Multidistrict Litigation (“JPML”) has consolidated hundreds of 22 these cases into a federal multidistrict litigation in the United 23 States District Court for the Southern District of Indiana (“MDL 24 court”), determining that centralization was appropriate for 25 cases involving allegations of defects in the various models of 26 Cook’s IVC filters. 27 Marketing, Sales Practices and Prod. Liab. Litig., MDL No. 2570 The Judicial Panel on In re: Cook Medical, Inc., IVC Filters 28 2 1 (S.D. Ind. 2017).1 2 On July 20, 2017, plaintiff filed suit in Sutter County 3 Superior Court alleging negligence by Frink in failing to (a) 4 monitor plaintiff after implantation of the Gunther Tulip and (b) 5 implement a follow up plan to monitor, assess, or remove the 6 Gunther Tulip once the device was no longer needed. 7 54.) 8 to warn, (b) strict liability design defect, (c) negligence in 9 failing to use reasonable care in designing, manufacturing, (Compl. ¶ As to Cook, plaintiff alleged (a) strict liability failure 10 marketing, labeling, packaging, and/or selling the Gunther Tulip, 11 (d) negligence for failure to recall the Gunther Tulip, (e) 12 breach of express and implied warranties, and (f) negligent 13 misrepresentation. 14 federal court on August 18th, 2017. 15 (Id. ¶¶ 57-97.) The case was removed to (Docket No. 1.) On August 22, 2017, the JPML issued a conditional 16 transfer, stating that this case “involve[s] questions of fact 17 that are common to the actions previously transferred to the 18 Southern District of Indiana.” 19 Remand (Docket No. 16), Ex. B, Aug. 22, 2017 MDL Conditional 20 Transfer Order.) 21 II. 22 (Cook’s Opp’n to Pl.’s Mot. to Plaintiff has opposed this order. Discussion A. 23 Order of Pending Motions As an initial matter, the court must determine which 24 motion to entertain first. Generally, jurisdiction is a 25 preliminary matter that should be resolved before all others. 26 Smith v. Mail Boxes, Etc., 191 F. Supp. 2d 1155, 1157 (E.D. Cal. 27 28 1 Master Case No. 1:14-ml-2570-RLY-TAB. 3 1 2002) (“[J]urisdictional issues should be resolved before the 2 court determines if a stay is appropriate.”). 3 approach changes when deference to an MDL court will further “the 4 uniformity, consistency, and predictability in litigation that 5 underlies the MDL system.” 6 Inc., 325 F. Supp. 2d 1049, 1053 (N.D. Cal. 2004). 7 can resolve a motion to remand when “the motion raises issues 8 likely to arise in other actions pending in [the consolidated 9 action].” However, the Conroy v. Fresh Del Monte Produce The MDL court Id.; see also In re Vioxx Prods. Liab. Litig., 360 F. 10 Supp. 2d 1352, 1354 (J.P.M.L. 2005) (“[M]otions to remand ... can 11 be presented to and decided by the transferee judge.”). 12 Several courts, including this one, have applied the 13 Conroy methodology when considering simultaneous motions to 14 remand and stay in the MDL context. 15 Volkswagen Grp. of Am., Inc., Civ. No. 16-cv-27-GFVT, 2016 WL 16 3040492, at *2-6 (E.D. Ky. May 25, 2016); Leeson v. Merck & Co., 17 Inc., Civ. No. 2:05-2240 WBS PAN, 2006 WL 3230047, at *2-4 (E.D. 18 Cal. Jan. 27, 2006). 19 merits of the motion to remand” and consider it in full if “this 20 preliminary assessment suggests that removal was improper.” 21 Conroy, 325 F. Supp. 2d at 1053. 22 issue appears factually or legally difficult, the court should 23 determine whether identical or similar jurisdictional issues have 24 been raised in other cases that have been or may be transferred 25 to the MDL proceeding.” 26 both difficult and similar or identical to those in cases 27 transferred or likely to be transferred, the court should stay 28 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 4 1 1044, 1048-49 (E.D. Wis. 2001). 2 Applying this methodology, the court finds that a stay 3 is proper. First, in light of Cook’s diversity jurisdiction 4 arguments, “removal was not plainly improper.” 5 WL 3230047, at *3. 6 the parties are in complete diversity and the amount in 7 controversy exceeds $75,000. 8 Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). 9 presents no argument regarding the amount in controversy See Leeson, 2006 Federal diversity jurisdiction exists when Matheson v. Progressive Specialty Plaintiff 10 requirement or the timeliness of Cook’s removal, but instead 11 argues that Frink’s California citizenship defeats complete 12 diversity. 13 Federal Rule of Civil Procedure 21 to retain diversity 14 jurisdiction over a case by dropping a non-diverse party if that 15 party is not necessary and indispensable to the case under Rule 16 19. 17 (9th Cir. 2002). 18 cannot be given to existing parties in the party’s absence; (2) 19 disposition in the party’s absence may impair the party’s ability 20 to protect its interest in the controversy; or (3) the party’s 21 absence would expose existing parties to substantial risk of 22 double or inconsistent obligations. 23 A party is “indispensable” under Rule 19(b) when “in equity and 24 good conscience” the action should not be allowed to proceed 25 without that party. 26 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. 27 Cook removed this case to federal court on two 28 independent theories: (1) the theory that Frink should be severed 5 1 from the case under Federal Rule of Civil Procedure 21; and (2) 2 fraudulent misjoinder. 3 indispensable to this action. 4 Supreme Court held that a physician who performed an implant 5 surgery was not a necessary party to a product liability action 6 against the medical device manufacturer. 7 Applying this reasoning, Frink is not necessary for the 8 resolution of plaintiff’s product liability claims here. 9 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). 10 he cannot be indispensable. 11 under Rule 19(b) is necessary, because the threshold requirements 12 of Rule 19(a) have not been satisfied.”) 13 preliminary assessment required by Conroy does not suggest that 14 removal was improper or that Cook’s diversity jurisdiction 15 arguments are baseless. 16 See id. at 8 (“Here, no inquiry Accordingly, the Second, the jurisdictional issue here is similar to 17 jurisdictional issues in cases already transferred to the MDL 18 court. 19 other IVC filter cases on the basis of fraudulent joinder, 20 including three in the Ninth Circuit.2 21 22 23 24 25 26 27 28 2 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. 6 1 already been transferred to the MDL.3 2 routinely issues conditional transfer orders for cases such as 3 this one, even where a motion to remand is pending. 4 In re: Cook Medical, Inc., IVC Filters Marketing, Sales Practices 5 and Prods. Liab. Litig., MDL No. 2570 (J.P.M.L. Dec. 7, 2016), 6 (Docket No. 172) (“We have held that a motion for remand alone 7 generally is an insufficient basis to vacate a conditional 8 transfer order. 9 the transferee judge.”). Furthermore, the JPML See, e.g., Plaintiff can present her motion for remand to Consequently, “identical or similar 10 jurisdictional issues have been raised in other cases that have 11 been or may be transferred to the MDL proceeding.” 12 F. Supp. 2d at 1053 13 Conroy, 325 Further, this case shares “common question[s] of fact” 14 with other cases already transferred to the MDL court. 15 § 1407(a). 16 claims injuries allegedly arising from the placement of a Cook 17 Gunther Tulip into plaintiff. 18 identical to the allegations plaintiffs in all other cases in the 19 Cook MDL make--that one of Cook’s IVC filters was defectively 20 designed and that Cook failed to provide adequate warnings about 21 the filter. 22 Filters Marketing, Sales Practices, and Prod. Liab. Litig., MDL 23 No. 2570 (Jan. 28, 2015)(ECF No. 213)(Notice of Filing Master 24 Consolidated Compl. for Individual Claims). 25 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.). 26 27 28 3 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. 7 1 Because jurisdiction is a threshold issue and the MDL 2 court has many cases with pending motions to remand, the MDL 3 court will necessarily need to rule on the motions to remand. The 4 Conroy methodology suggests that the court should rule upon 5 defendants’ motion to stay. 6 B. 7 Motion to Stay The power to stay proceedings “is incidental to the 8 power inherent in every court to control the disposition of the 9 cases on its docket with economy of time and effort for itself, 10 for counsel, and for litigants.” 11 248, 254 (1936). 12 are particularly appropriate when the parties contest issues that 13 are “likely to arise in other actions pending” in the 14 consolidated proceedings. 15 evaluating whether to stay proceedings, the court is concerned 16 with balancing competing interests and should consider: “(1) 17 potential prejudice to the non-moving party; (2) hardship and 18 inequity to the moving party if the action is not stayed; and (3) 19 the judicial resources that would be saved by avoiding 20 duplicative litigation if the cases are in fact consolidated.” 21 Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 22 1997); see also Landis, 299 U.S. at 254-55; CMAX, Inc. v. Hall, 23 300 F.2d 265, 268 (9th Cir. 1962). 24 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 25 that a stay will place her case in the MDL court with hundreds of 26 other cases where she will be unfairly prejudiced by a delay in 27 proceedings. 28 11).) (Pls.’ Opp’n to Cook’s Mot. to Stay 10 (Docket No. The court is aware that there may be some delay or 8 1 inconvenience to plaintiff if a stay is granted. 2 this case is transferred to the MDL, the efficiencies gained 3 through the MDL will benefit all parties.” 4 Grp. of Am., Inc., Civ. No. 16-754 WMW TNL, 2016 WL 3004631, at 5 *2 (D. Minn. May 24, 2016). 6 plaintiff from seeking remand in the MDL court, and plaintiff may 7 very well benefit from the perspectives of plaintiffs' counsel in 8 other cases with pending motions to remand. 9 courts have stayed cases pending transfer to an MDL court when However, “if Lessard v. Volkwagen Granting a stay will not preclude Further, other 10 “plaintiffs have not demonstrated any prejudice in the event of a 11 stay except the slight delay in deciding the remand motion.” 12 See, e.g., Med. Soc’y of N.Y. v. Conn. Gen. Corp., 187 F. Supp. 13 2d 89, 92 (S.D.N.Y. 2001). 14 particular action might inconvenience or delay some parties to 15 that action, such a transfer often is necessary to further the 16 expeditious resolution of the litigation taken as a whole.” 17 (Cook’s Mem. in Supp. of Mot. to Stay, Ex. A, Aug. 1 JPML 18 Transfer Order). 19 Moreover, “[w]hile transfer of a Second, the potential hardship and inequity to Cook 20 weighs heavily in favor of a stay. If this court considers and 21 denies plaintiff’s motion to remand, plaintiff may have a second 22 chance before the MDL court if the case is subsequently 23 transferred because the MDL court will necessarily need to 24 address motions to remand in the several cases already 25 transferred. 26 same motion repeatedly brought by the same plaintiff.” 27 2006 WL 3230047, at *4. 28 that defendants improperly removed this case but the MDL court “[Defendants] should not have to defend against the Leeson, Conversely, if this court determines 9 1 holds removal was proper in similar cases, defendants will be 2 stuck with a decision in this case that is inconsistent with the 3 majority of other similar cases. 4 No. 13-2466 JST, 2013 WL 3889159, at *2 (N.D. Cal. July 26, 2013) 5 (“On the other hand, Defendants would face the risk of 6 unnecessary proceedings and inconsistent rulings on recurring 7 questions of law and fact if the case is not stayed.”). 8 defendants would not be able to appeal an order granting remand. 9 See Kunzi v. Pan Am. World Airways, Inc., 833 F.2d 1291, 1293 10 (9th Cir. 1987) (“Remand orders ... are immune from appellate 11 review ... even if the district court’s jurisdictional decision 12 was erroneous.”). 13 potentially respond to any other pretrial matters raised by 14 plaintiffs that the MDL court could decide. 15 adjudicated by this court increases the risk of inconsistent 16 rulings and prejudices defendants’ ability to defend themselves 17 in the actions with similar allegations and issues. 18 2013 WL 3889159, at *2. 19 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 20 goal of the MDL court is to coordinate pretrial management of 21 actions with common facts. 22 the JPML's decision to consolidate this action in the MDL court 23 increases efficiency and consistency, especially “when the 24 pending motions raise issues likely to be raised in other cases.” 25 Manual for Complex Litigation (Fourth) § 22.35; see Meyers, 143 26 F. Supp. 2d at 1053 (“[J]udicial economy clearly favors a stay” 27 when the “other cases present the same or a similar issue.”). 28 majority of courts have concluded that it is often appropriate to See 28 U.S.C. § 1407. 10 A stay pending “A 1 stay preliminary pretrial proceedings while a motion to transfer 2 and consolidate is pending with the MDL Panel because of the 3 judicial resources that are conserved.” 4 1362. 5 its energies familiarizing itself with the intricacies of a case 6 that would be heard by another judge.” 7 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 8 court will potentially be in a better position to address 9 plaintiff’s motion to remand and any other pretrial matters. 10 “Given the fact that hundreds of similar cases have been 11 transferred already, and the likelihood of many more cases being 12 in a similar procedural posture, the interests of judicial 13 economy and the threat of inconsistent rulings outweighs any 14 potential prejudice to the [plaintiff].” 15 3040492, at *8. 16 motion to stay the proceedings pending transfer of this action to 17 the MDL court. 18 19 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. 20 IT IS FURTHER ORDERED that plaintiff’s Motion to remand 21 be, and the same hereby is, DENIED WITHOUT PREJUDICE. 22 Dated: October 31, 2017 23 24 25 26 27 28 11

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