Mitchell v. Acumed, LLC
Filing
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ORDER granting in part and denying in part 7 Motion to Dismiss; granting 8 Motion to Strike ; denying 19 Motion to Remand (sclc1, COURT STAFF) (Filed on 6/13/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RANDALL RAY MITCHELL,
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) Case No. 11-752 SC
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) ORDER RE: MOTIONS
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Plaintiff,
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v.
For the Northern District of California
United States District Court
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ACUMED, LLC; and DOES 1 through
100, inclusive,
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Defendants.
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I.
INTRODUCTION
Plaintiff Randall Ray Mitchell ("Plaintiff") commenced this
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action in Marin County Superior Court against Acumed, LLC
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("Defendant"), pleading eight causes of action relating to injuries
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Plaintiff allegedly sustained after a device manufactured by
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Defendant was surgically inserted into his body.
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("Notice of Removal") Ex. E ("FAC").
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are now before the Court.
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state court.
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Reply"), 35 ("MTR Supp. Opp'n"), 36 ("MTR Supp. Reply").1
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Defendant moves to dismiss Plaintiff's FAC.
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("MTD Opp'n"), 30 ("MTD Reply").
ECF No. 1
Three fully briefed motions
Plaintiff moves to remand the case to
ECF Nos. 19 ("MTR"), 25 ("MTR Opp'n"), 28 ("MTR
ECF Nos. 7 ("MTD"), 23
Defendant additionally moves to
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The Court required supplemental briefing on Plaintiff's MTR.
No. 32.
ECF
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strike references in the FAC to the allegedly defective design of
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Defendant's device.
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Reply").
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Motion to Remand, GRANTS IN PART and DENIES IN PART Defendant's
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Motion to Dismiss, and GRANTS Defendant's Motion to Strike.
ECF Nos. 8 ("MTS"), 24 ("MTS Opp'n"), 31 ("MTS
For the following reasons, the Court DENIES Plaintiff's
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II.
As it must on a Federal Rule of Civil Procedure 12(b)(6)
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BACKGROUND
motion, the Court assumes the truth of the well-pleaded facts in
United States District Court
For the Northern District of California
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Plaintiff's' FAC.
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surgery.
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Lunate Fixation device ("the device") was implanted into his wrist.
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Id.
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necessitating removal of the device and additional surgery.
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research[ed], develop[ed], manufacture[d], test[ed], market[ed],
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advertise[d], promote[d], distribute[d], warrant[ed] and [sold]"
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the device.
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time of Plaintiff's surgery that it was unsafe and defective
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because it "could not withstand the stresses placed as a patient's
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mobility increased and would fracture and break under the stresses
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that foreseeably accompanied increased mobility while bone union
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and growth . . . was occurring in patients."
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alleges that Defendant falsely represented the strength and use of
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the device in brochures provided to Plaintiff's doctors, and that
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Defendant failed to disclose that the device would fracture.
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11.
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"safe and effective even when used as directed [even though] no
FAC ¶ 7.
Around January 2, 2008, Plaintiff underwent
During the procedure, an Articulating Scaphoid
Subsequent X-rays revealed that the device had fractured,
Id. ¶¶
Plaintiff alleges in his FAC that Defendant "design[ed],
Id. ¶ 8.
Plaintiff alleges that Defendant knew at the
Id. ¶ 10.
Plaintiff
Id. ¶
Plaintiff claims that Defendant represented the device to be
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clinical trials had been done supporting long or short-term
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efficacy."
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known risks about the device, and failed to provide sufficient
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warnings and instructions that would have put the general public on
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notice of the possibility of dangers and adverse effects.
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13, 15.
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it was "reasonably scientifically knowable" that the device would
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fracture and break, and hence Defendant acted with malice in
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failing to warn the public of this danger.
United States District Court
Plaintiff claims that Defendant concealed
Id. ¶
Plaintiff argues that at the time of Plaintiff's surgery,
Id. ¶ 21.
On January 4, 2010, Plaintiff filed his Initial Complaint in
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For the Northern District of California
Id. ¶ 12.
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California Superior Court for the County of Marin.
See Notice of
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Removal Ex. A ("Initial Complaint").
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Plaintiff did not plead the state citizenship of Plaintiff or
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Defendant.
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August 12, 2010.
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September 13, 2010; on December 29, 2010, the court sustained the
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demurrer, giving Plaintiff leave to amend his complaint.
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4.
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Complaint in state court.
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section entitled "Identity and Capacity of Parties" in which
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Plaintiff pleaded that he was a resident of California.
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6.
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is informed and believed that each of the fictitiously named
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defendants is responsible in some manner for the occurrences herein
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alleged, and that plaintiff's damages as herein alleged were and
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continue to be proximately caused by such occurrences."
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Plaintiff brings eight causes of action against Defendant and Doe
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Defendants: (1) strict product liability -- failure to warn; (2)
In his Initial Complaint,
Defendant was served with the Initial Complaint on
Notice of Removal at 3.
Defendant demurred on
Id. at 3-
On January 28, 2011, Plaintiff filed his First Amended
See FAC.
Included in the FAC was a
Id. ¶¶ 3-
Plaintiff also named sixty Doe Defendants, writing: "Plaintiff
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Id. ¶ 4.
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strict liability; (3) negligence; (4) breach of implied warranty;
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(5) breach of express warranty; (6) fraud; (7) fraud by
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concealment; and (8) negligent misrepresentation.
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See FAC.
On February 18, 2011, Defendant removed the action to federal
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court.
See Notice of Removal.
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diversity of the parties, noting that the FAC identified Plaintiff
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as a citizen and resident of California while alleging that
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Defendant is a Delaware corporation with its principal place of
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business in Hillsboro, Oregon.
Defendant based removal on
Id. at 2.
United States District Court
For the Northern District of California
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III. LEGAL STANDARDS
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A.
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Any civil action brought in a state court may be removed to
Motion to Remand
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federal court if there is complete diversity of citizenship and
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where the amount in controversy exceeds $75,000.
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1332, 1441.
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the removal statute, "and any doubt about the right of removal
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requires resolution in favor of remand."
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Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citation
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omitted).
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defendant always has the burden of establishing that removal is
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proper."
28 U.S.C. §§
As a general rule, the court must strictly construe
Moore-Thomas v. Alaska
"The presumption against removal means that the
Id. (internal quotations omitted).
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B.
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A motion to dismiss under Federal Rule of Civil Procedure
Motion to Dismiss
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12(b)(6) "tests the legal sufficiency of a claim."
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Block, 250 F.3d 729, 732 (9th Cir. 2001).
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on the lack of a cognizable legal theory or the absence of
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sufficient facts alleged under a cognizable legal theory.
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Navarro v.
Dismissal can be based
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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
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1990).
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should assume their veracity and then determine whether they
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plausibly give rise to an entitlement to relief."
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Iqbal, 129 S. Ct. 1937, 1950 (2009).
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court must accept as true all of the allegations contained in a
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complaint is inapplicable to legal conclusions.
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recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice."
"When there are well-pleaded factual allegations, a court
Ashcroft v.
However, "the tenet that a
Threadbare
Iqbal, 129 S. Ct. at 1950
United States District Court
For the Northern District of California
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(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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allegations made in a complaint must be both "sufficiently detailed
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to give fair notice to the opposing party of the nature of the
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claim so that the party may effectively defend against it" and
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sufficiently plausible such that "it is not unfair to require the
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opposing party to be subjected to the expense of discovery."
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v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011).
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C.
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The
Starr
Rule 12(f) provides that "[t]he court may strike from a
Motion to Strike
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pleading an insufficient defense or any redundant, immaterial,
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impertinent, or scandalous matter."
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Motions to strike are generally regarded with disfavor.
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County of San Mateo, No. 06–3923, 2007 WL 902551, at *1 (N.D. Cal.
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Mar. 22, 2007).
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to "avoid the expenditure of time and money that must arise from
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litigating spurious issues by dispensing with those issues prior to
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trial."
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1993), rev'd on other grounds, 510 U.S. 517 (1994).
Fed. R. Civ. P. 12(f).
Ganley v.
The essential function of a Rule 12(f) motion is
Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.
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IV.
DISCUSSION
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A.
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While Plaintiff does not challenge the state citizenship of
Plaintiff's Motion to Remand
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Defendant or the satisfaction of the amount-in-controversy, he
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makes two arguments in favor of remanding the action to state
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court.
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more than thirty days after Defendant was served with the Initial
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Complaint, and thus Defendant's removal was untimely under 28
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U.S.C. § 1446(b). Second, he argues that remand is proper because
United States District Court
For the Northern District of California
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First, he argues that Defendant filed the Notice of Removal
he intends to join a non-diverse Doe defendant.
Under 28 U.S.C. § 1446(b),
The notice of removal of a civil action or
proceeding shall be filed within thirty days
after the receipt by the defendant, through
service or otherwise, of a copy of the initial
pleading setting forth the claim for relief
upon which such action or proceeding is based,
or within thirty days after the service of
summons upon the defendant if such initial
pleading has then been filed in court and is
not required to be served on the defendant,
whichever period is shorter.
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See MTR.
Plaintiff argues that Defendant "was aware of the
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circumstances surrounding the allegations of the original complaint
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as early as January 2010," and hence Defendant's February 2011
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removal was beyond the thirty-day removal period provided by §
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1446(b).
Id. at 4.
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Defendant counters that Plaintiff did not plead his
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citizenship in the Initial Complaint, and the first time
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Plaintiff's citizenship was pleaded was in the FAC filed January
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28, 2011.
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thirty-day deadline for removal was not triggered until the FAC was
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filed, and so removal was timely.
MTR Opp'n at 2-3.
Defendant argues that as such, the
Plaintiff responds that
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Defendant should have surmised Plaintiff's citizenship from the
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facts alleged in the Initial Complaint -- namely, that Plaintiff
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underwent surgery in San Rafael, California.
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Plaintiff writes: "Patients on a Kaiser plan rarely travel out of
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their area for common medical services and there is no indication
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so far that Kaiser San Rafael was or is a Mecca for wrist surgery
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at the time of surgery."
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Reply at 2.
Id.
"[N]otice of removability under § 1446(b) is determined
through examination of the four corners of the applicable
United States District Court
For the Northern District of California
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pleadings, not through subjective knowledge or a duty to make
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further inquiry."
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694 (9th Cir. 2005).
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location of the hospital where Plaintiff's surgery took place that
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Plaintiff was a California resident.
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argument fails.
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Harris v. Bankers Life & Cas. Co., 425 F.3d 689,
Defendant could not have known from the
Therefore, Plaintiff's first
Plaintiff's second argument is that the action should be
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remanded because Plaintiff intends to join a non-diverse Doe
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defendant, defeating diversity.
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"nothing more than a thinly disguised attempt to defeat diversity
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jurisdiction," and notes, "Plaintiff has cited to no case law which
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allows a court to consider a prospective defendant in determining
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whether to remand."
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MTR at 7.
Defendant calls this
MTR Opp'n at 4.
The Court finds this argument to fail as well; the Court looks
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to the pleadings, not the speculation of the parties, to determine
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whether removal was proper, and finds that removal was proper here.
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The Court ordered supplemental briefing on this motion in
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light of language within 28 U.S.C. § 1446(b) prohibiting removal on
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the basis of diversity jurisdiction more than one year after
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commencement of the action.
ECF No. 32.
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this was a procedural limitation and challenged both its
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applicability and what it perceived as the Court's sua sponte
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raising of it.
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§ 1446(b)'s one-year bar "only bars removal of actions which were
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not originally removable," and claims that while the Initial
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Complaint failed to put Defendant on notice of Plaintiff's
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California citizenship, it did not change the "underlying fact that
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Plaintiff was a resident of California."
MTR Supp. Opp'n at 1-2.
Defendant argued that
Defendant argued that
Id. at 3.
Plaintiff used
United States District Court
For the Northern District of California
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his supplemental brief to restate law cited by the Court and the
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arguments made in his MTR.
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The Court is persuaded by Defendant, and finds removal of this
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action to be timely and proper.
Accordingly, Plaintiff's MTR is
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DENIED.
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B.
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In its MTD, Defendant argues that Plaintiff's two strict
Defendant's Motions to Dismiss and Strike
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liability claims fail to state a claim upon which relief can be
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granted because "claims of design defect of an implantable medical
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device" are barred by law.
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Plaintiff's sixth and seventh claims sound in fraud and are not
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pleaded with the required specificity.
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1.
MTD at 1.
Defendant also argues that
Id.
Design Defects
In California, it has long been the law that implanted medical
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devices are exempted from strict liability for design defects.
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Brown v. Super. Ct., 44 Cal. 3d 1049, 1069 (1988); Artiglio v.
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Super. Court, 22 Cal. App. 4th 1388, 1393 (Ct. App. 1994).
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Plaintiff's response is that the present case is factually
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distinguishable because it involves a "surgical screw," whereas
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Brown involved a drug taken internally and Artiglio involved breast
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implants.
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wholly devoid of merit; Plaintiff makes no logical argument that
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Brown and Artiglio should not cover the surgical screw at issue
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here.
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valid strict liability claims premised on Defendant's failure to
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warn or a manufacturing defect, the Court does not dismiss them in
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their entirety.
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action premised on defective design of the device.
MTD at 3.
The Court finds Plaintiff's argument to be
Because Plaintiff's first and second claims still recite
Rather, it DISMISSES, with PREJUDICE, any cause of
Likewise, it
United States District Court
For the Northern District of California
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STRIKES all references to the allegedly defective design of the
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device as immaterial under Rule 12(f).
2.
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Fraud Claims
Defendant additionally argues that Plaintiff has failed to
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See MTD at
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plead his fraud claims with the requisite specificity.
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1.
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"grounded in fraud," they must plead their claim with particularity
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as required by Rule 9(b) of the Federal Rules of Civil Procedure.
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See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-66 (9th Cir.
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2004); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.
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2003).
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how" of the fraud.
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plaintiff satisfies the particularity requirement only if his or
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her allegations are "specific enough to give defendants notice of
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the particular misconduct which is alleged to constitute the fraud
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charged so that they can defend against the charge and not just
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deny that they have done anything wrong."
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236 F.3d 1014, 1019 (9th Cir. 2001) (citation and internal
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quotation marks omitted).
Where plaintiffs allege fraud, or conduct that is sufficiently
Plaintiffs must include "the who, what, when, where, and
Vess, 317 F.3d at 1106 (citations omitted).
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A
Bly-Magee v. California,
Plaintiff does not argue that his fraud claims satisfy Rule
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9(b) -- rather, he requests leave to amend his complaint.
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Defendant argues that if the Court allows Plaintiff to amend its
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FAC, Defendant "will be severely prejudiced because it will be
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forced to engage in further motion practice before the court,
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incurring additional fees and costs to strike baseless and
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frivolous claims."
The Court finds Plaintiff's fraud claims to be extremely
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Reply at 3.
poorly pleaded.
Plaintiff fails to identify the "who, what, when,
United States District Court
For the Northern District of California
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where," or "how" of the alleged fraud.
Nor does he allege facts in
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his MTD Opposition that would tend to support his fraud claims.
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For these reasons, the Court DISMISSES Plaintiff's claims for fraud
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and fraudulent concealment WITHOUT PREJUDICE.
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Plaintiff has made no attempt to justify his fraud claims, the
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Court does not grant Plaintiff leave to amend his Complaint at this
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time.
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claims sounding in fraud, he must first seek leave of the Court.
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Should Plaintiff amend his FAC to include "baseless and frivolous
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claims," he will face appropriate sanctions under Federal Rule of
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Civil Procedure 11, 28 U.S.C. § 1927, and/or the Court's inherent
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authority.
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///
However, because
Should Plaintiff desire to amend his Complaint to include
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V.
CONCLUSION
For the foregoing reasons, Plaintiff Randall Ray Mitchell's
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Motion to Remand is DENIED.
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Dismiss is GRANTED IN PART and DENIED IN PART.
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WITH PREJUDICE any strict liability cause of action premised on
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design defect and DISMISSES WITHOUT PREJUDICE Plaintiff's sixth and
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seventh causes of action for fraud and fraud (concealment).
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Defendant's Motion to Strike is GRANTED: the Court STRIKES all
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references in Plaintiff's FAC to the allegedly defective design of
United States District Court
For the Northern District of California
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Defendant Acumed, LLC's Motion to
The Court DISMISSES
the Articulating Scaphoid Lunate Fixation device.
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IT IS SO ORDERED.
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Dated: June 13, 2011
UNITED STATES DISTRICT JUDGE
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