Mercado et al v. Regents of the University of California et al

Filing 21

ORDER by Magistrate Judge Jacqueline Scott Corley granting 9 Motion to Remand (ahm, COURT STAFF) (Filed on 10/16/2014)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JUAN MERCADO, et al., Case No. 14-cv-03367-JSC Plaintiffs, 8 v. ORDER GRANTING MOTION TO REMAND 9 10 United States District Court Northern District of California 11 REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Re: Dkt. No. 9 Defendants. 12 13 Now pending before the Court is Plaintiffs Juan Mercado and Patsy Mercado’s motion to 14 remand. (Dkt. No. 9.) Plaintiffs contend that removal was improper because none of their state- 15 law negligence and strict liability claims “arise under” federal law. After carefully considering the 16 parties’ submissions, and having had the benefit of oral argument on October 16, 2014, the Court 17 GRANTS the motion and REMANDS this case to San Francisco County Superior Court. BACKGROUND 18 19 Plaintiff Juan Mercado alleges that in May 2012, after liver transplant surgery at 20 University of California San Francisco Medical Center (“UCSF”), a nurse at the hospital 21 administering medicine through a catheter introduced air into his circulatory system—what is 22 known as an “air embolism”—causing him to suffer cardiac arrest and a stroke. Plaintiffs filed a 23 form complaint in state court in San Francisco in February 2013 alleging three causes of action: 1) 24 a negligence claim against Defendant Regents of the University of California (“the Regents”); 2) a 25 products liability claim against Defendant Arrow International, Inc. (“Arrow”) for its defective 26 design, manufacturing, and failure to warn; and 3) a loss of consortium claim against both the 27 Regents and Arrow. 28 In May 2014, Arrow filed a motion for summary judgment on all product liability claims. 1 Arrow asserted that its warnings regarding air embolisms were adequate as a matter of law and 2 that it exercised reasonable care in the design and manufacture of the catheter. Arrow relied on 3 Federal Drug Administration (“FDA”) regulations and federal statutes regarding medical device 4 labeling to show that Arrow’s warnings were adequate and its design and manufacture consistent 5 with industry standards. In their opposition to the motion filed two months later, Plaintiffs 6 asserted that, even if the product itself contained adequate warnings, Arrow was still liable for its 7 failure to warn UCSF (the purchaser) of the existence of other Arrow catheters that Plaintiffs 8 contend are safer than the catheter used on Plaintiff. 9 10 Arrow removed this case to federal court three days after Plaintiffs filed their opposition to the summary judgment motion. This motion to remand to state court followed. LEGAL STANDARD United States District Court Northern District of California 11 12 Subject to time constraints, defendants in a state court action may remove that action to 13 federal court when the case could have originally been brought in federal court. 28 USC §§ 1441, 14 1446(b). Courts strictly construe the removal statute against removal jurisdiction, “and any doubt 15 about the right of removal requires resolution in favor of remand.” Moore–Thomas v. Alaska 16 Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). “The presumption against removal means that 17 the defendant always has the burden of establishing that removal is proper.” Id. (internal 18 quotation marks omitted). 19 Congress has authorized the federal district courts to exercise original jurisdiction in “all 20 civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 21 1331. A case can “aris[e] under” federal law in two ways. “Most directly, a case arises under 22 federal law when federal law creates the cause of action asserted. As a rule of inclusion, this 23 ‘creation’ test admits of only extremely rare exceptions, and accounts for the vast bulk of suits that 24 arise under federal law[.]” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (citations omitted). 25 “But even where a claim finds its origins in state rather than federal law . . . we have identified a 26 ‘special and small category’ of cases in which arising under jurisdiction still lies.” Id. (quoting 27 Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 (2006)). 28 The Supreme Court has described the latter inquiry as follows: 2 1 Does the “state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities”? That is, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federalstate balance approved by Congress. 2 3 4 5 6 Id. (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005)). 7 DISCUSSION 8 9 Arrow contends that Plaintiffs’ state-law products liability claim “arises under” federal law because “the novel ‘failure to warn’ theories proffered by Plaintiffs would greatly impact the overall function and regulatory scheme of the FDA in its ability to carry out consistent oversight 11 United States District Court Northern District of California 10 and regulation of the recall, advertising, branding, and labeling of prescription medical devices.” 12 (Dkt. No. 15 at 5.) Plaintiffs disagree, asserting that Arrow’s alleged duty to warn is based on 13 California law and does not implicate any significant federal issue. Plaintiffs also argue that 14 remand is required because Arrow’s removal was untimely. 15 A. 16 Section 1446 provides two 30-day windows during which a case may be removed—during 17 the first 30 days after the defendant receives the initial pleading or during the first 30 days after the 18 defendant receives a paper “from which it may first be ascertained that the case is one which is or 19 has become removable” if “the case stated by the initial pleading is not removable.” 28 U.S.C. § 20 1446(b). 21 Timeliness of Removal Arrow learned of Plaintiff’s expanded duty to warn theory when Plaintiffs filed their 22 opposition to Arrow’s motion for summary judgment. Arrow asserts that this new theory, which 23 was not stated in the Complaint, forms the basis of federal question jurisdiction. Because Arrow 24 became aware of Plaintiffs’ duty to warn theory only when Plaintiffs filed its opposition to the 25 motion for summary judgment, Arrow’s removal of the case three days after receiving the 26 opposition complied with Section 1446’s time requirements. 27 28 Plaintiffs’ arguments to the contrary are unpersuasive. Plaintiffs assert that Arrow should have deduced from the deposition testimony of a UCSF nurse specialist in April that Plaintiffs 3 1 would pursue their expanded duty to warn theory. The nurse specialist testified that UCSF 2 replaced the catheters used on Plaintiff with alternative, presumably safer, catheters after Arrow 3 informed the hospital that such alternative catheters were available. While the nurse’s testimony 4 may support Plaintiffs’ claims, it did not provide Arrow notice that Plaintiffs would pursue their 5 expanded duty to warn theory. After all, it is Plaintiffs’ case—not the nurses’ or Arrow’s—and 6 Plaintiffs’ chosen theories control. Starting the removal clock when evidence is produced that 7 supports a mere potential theory of liability that invokes federal court jurisdiction would be 8 wasteful and is unsupported by any authority. 9 Nor is Arrow’s removal untimely because Arrow cited federal statutes and regulations in support of its motion for summary judgment. Arrow does not argue that federal question 11 United States District Court Northern District of California 10 jurisdiction arises where federal statutes and regulations are cited; rather, Arrow contends that 12 Plaintiffs’ expanded theory of a manufacturer’s duty to warn so concerns federal issues that 13 Plaintiffs’ claims “arise under” federal law. Thus, the bare fact that Arrow relied on FDA 14 regulations and federal statutes in its motion for summary judgment does not somehow preclude 15 removal two months later when Arrow “first [] ascertained that the case is one which is or has 16 become removable.” 28 U.S.C. § 1446(b). 17 B. Whether Plaintiffs’ Products Liability Claim “Arises Under” Federal Law 18 As stated above, “federal jurisdiction over a state law claim will lie if a federal issue is: (1) 19 necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal 20 court without disrupting the federal-state balance approved by Congress.” Gunn, 133 S. Ct. at 21 1065. Where all four of these requirements are met, “jurisdiction is proper because there is a 22 serious federal interest in claiming the advantages thought to be inherent in a federal forum, which 23 can be vindicated without disrupting Congress's intended division of labor between state and 24 federal courts.” Id. (internal quotation marks omitted). Plaintiffs’ state-law products liability 25 claim does not satisfy this test. 26 Plaintiffs’ state-law claim does not present any “necessarily raised” or “actually disputed” 27 federal issue. Arrow identifies Plaintiffs’ expanded duty to warn theory as necessary to Plaintiffs’ 28 products liability claim. However, whether this expanded duty exists in California is a question of 4 1 California law; specifically, California courts apply the so-called Rowland factors to determine 2 whether a duty exists that would support a finding of negligence. See Elsheref v. Applied 3 Materials, Inc., 223 Cal. App. 4th 451, 459-60 (2014); see also Rowland v. Christian, 69 Cal. 2d 4 108, 112-13 (1968). These factors include “the foreseeability of harm to the plaintiff, the degree 5 of certainty that the plaintiff suffered injury, the closeness of the connection between the 6 defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, 7 the policy of preventing future harm, the extent of the burden to the defendant and consequences 8 to the community of imposing a duty to exercise care with resulting liability for breach, and the 9 availability, cost, and prevalence of insurance for the risk involved.” Elsheref, 223 Cal. App. 4th at 459 (internal quotation marks omitted). Arrow fails to explain why this examination necessarily 11 United States District Court Northern District of California 10 includes an interpretation or application of federal law. Arrow otherwise fails to specifically identify a federal issue, capable of resolution, that is 12 13 necessarily raised and actually disputed. At best, Arrow argues that, if the expanded duty to warn 14 is found to exist, it would pose “substantial implications” on the FDA’s “regulatory scheme as a 15 whole.” (Dkt. No. 15 at 18.) This argument sounds in preemption. 1 However, ordinary 16 preemption, as with other defenses, does not confer federal question jurisdiction. See Marin Gen. 17 Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 945 (9th Cir. 2009) (“The general rule is 18 that a defense of federal preemption of a state-law claim . . . is an insufficient basis for original 19 federal question jurisdiction . . . .”). Neither Grable nor Gunn has removed the requirement that 20 the substantial federal issue appear on the face of a plaintiff’s well-pleaded complaint. See Cal. 21 Shock Trauma Air Rescue v. State Compensation Ins. Fund, 636 F.3d 538, 542 (9th Cir. 2011) 22 (“Grable stands for the proposition that a state-law claim will present a justiciable federal question 23 1 24 25 26 27 28 The Ninth Circuit has identified three forms of defensive preemption: “(1) express preemption— where Congress explicitly defines the extent to which its enactments preempt state law; (2) field preemption—where state law attempts to regulate conduct in a field that Congress intended the federal law exclusively to occupy; and (3) conflict preemption—where it is impossible to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Topa Equities, Ltd. v. City of Los Angeles, 342 F.3d 1065, 1069 (9th Cir. 2003) (internal quotation marks omitted). Complete preemption, a “doctrine of jurisdiction” not invoked by Arrow, is “related” to preemption law, but should not be confused with the ordinary preemption doctrine. Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1107 n.7 (9th Cir. 2000). 5 1 only if it satisfies both the well-pleaded complaint rule and passes the ‘implicate[s] significant 2 federal issues’ test.”). Because Arrow fails to identify a federal issue that is necessarily raised and 3 actually disputed, Arrow fails to establish that Plaintiffs’ state-law claim “arises under” federal 4 law. 2 CONCLUSION 5 6 For the reasons stated above, Plaintiffs’ motion to remand is GRANTED. 7 IT IS SO ORDERED. 8 Dated: October 16, 2014 ______________________________________ JACQUELINE SCOTT CORLEY United States Magistrate Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 28 Since Arrow fails to establish the first two requirements of the test for “arising under” jurisdiction, the Court need not address the latter two requirements of that test. 6

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