Sangimino et al v. Bayer Corporation et al

Filing 51

ORDER GRANTING MOTION TO REMAND AND DENYING AS MOOT MOTION TO DISMISS by Judge Alsup finding as moot 12 Motion to Dismiss; granting 18 Motion to Remand (whalc1, COURT STAFF) (Filed on 6/9/2017)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 ELIZABETH SANGIMINO, et al., No. C 17-01488 WHA 11 For the Northern District of California United States District Court 10 12 13 14 Plaintiffs, v. ORDER GRANTING MOTION TO REMAND AND DENYING AS MOOT MOTION TO DISMISS BAYER CORP., et al., Defendants. / 15 16 17 INTRODUCTION Defendants removed this product liability action from state court on the grounds that it 18 presents a federal question. Plaintiffs now move to remand, and defendants move to dismiss. 19 For the reasons stated below, the motion to remand is GRANTED, and the motion to dismiss is 20 DENIED AS MOOT. 21 22 STATEMENT Plaintiffs are 59 women who had Essure, a permanent contraceptive device, implanted in 23 their fallopian tubes. This action arises from medical complications plaintiffs suffered as a 24 result of alleged defects in the Essure device. Plaintiffs brought five claims under California 25 law including (1) negligence, (2) strict products liability, (3) breach of express warranty, (4) 26 breach of implied warranty, and (5) fraud. 27 28 Defendants removed this action from the Superior Court of Contra Costa County in March 2017 based on federal-question jurisdiction, claiming that plaintiffs’ claims arise under federal law, and then moved to dismiss all claims. Plaintiffs now move to remand, contending 1 that their complaint does not raise a federal question. This order follows full briefing and oral 2 argument. 3 ANALYSIS 4 1. FEDERAL-QUESTION JURISDICTION. 5 District courts have jurisdiction over civil cases arising under the Constitution, laws and 6 treaties of the United States — so-called federal-question jurisdiction. 28 U.S.C. 1331. When 7 such a case is filed in state court, defendants may remove it to federal district court. 28 U.S.C. 8 1441(b). Absent a proper basis for removal, however, a case must be remanded. Steel Co. v. 9 Citizens for a Better Env’t, 523 U.S. 83, 96 (1998). The question of whether a claim “‘arises under’ federal law is determined by reference 11 For the Northern District of California United States District Court 10 to the ‘well-pleaded complaint.’” Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 808 12 (1986) (quoting Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. 13 California, 463 U.S. 1, 8 (1983)). “It is settled law that a case may not be removed to federal 14 court on the basis of a federal defense, including a defense of preemption, even if the defense is 15 anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense 16 is the only question truly at issue.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 17 1102, 1106 (9th Cir. 2000) (quoting Franchise Tax Bd., 463 U.S. at 8). 18 In the vast majority of cases, “arising under federal law” means that the plaintiff has 19 pled a federal claim. Merrell Dow, 478 U.S. at 808. There is, however, a second path to 20 federal- question jurisdiction. If a plaintiff does not present a federal claim, a federal court may 21 nevertheless retain jurisdiction if federal issues presented by the claims are “(1) necessarily 22 raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court 23 without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 133 S. Ct. 24 1059, 1065 (2013) (listing requirements enumerated in Grable & Sons Metal Prod., Inc. v. 25 Darue Eng'g & Mfg., 545 U.S. 308, 308 (2005)). Since plaintiffs have pled only state-law 26 claims, the question is whether defendants have failed to satisfy any element of this four-part 27 test. 28 2 1 A. Necessarily Raised. 2 “[F]ederal jurisdiction is unavailable unless it appears that some substantial, disputed 3 question of federal law is a necessary element of one of the well-pleaded state claims . . . .” 4 Franchise Tax Bd., 463 U.S. at 13. “When a claim can be supported by alternative and 5 independent theories — one of which is a state law theory and one of which is a federal law 6 theory — federal-question jurisdiction does not attach because federal law is not a necessary 7 element of the claim.” Rains v. Criterion Sys., Inc., 80 F.3d 339, 344 (9th Cir. 1996) (citing 8 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988)). 9 Here, none of plaintiffs’ claims relies on federal violations as a necessary element. Scrubbed of any mention of federal law, plaintiffs’ complaint still pleads each element of each 11 For the Northern District of California United States District Court 10 claim. Therefore, the complaint does not satisfy the “necessarily raised” prong of the test for 12 federal-question jurisdiction, and must be remanded to state court. 13 Defendants make two arguments to the contrary, both unavailing. Defendants first 14 argue that plaintiffs necessarily raise federal issues because they “must be suing for conduct that 15 violates the [MDA] (or else [their] claim[s] [are] expressly preempted) . . .” (Def.’s Opp. at 5) 16 (quoting De La Paz v. Bayer Healthcare LLC, 159 F. Supp. 3d 1085, 1092 (N.D. Cal. 2016)). 17 Defendants go on to cite three out-of-circuit district court decisions in support of the proposition 18 that a preemption defense can provide the basis for federal-question jurisdiction. Dooley v. 19 Medtronic, Inc., 39 F. Supp. 3d 973, 985 (W.D. Tenn. 2014) (Judge John Fowlkes, Jr.); Jenkins 20 v. Medtronic, Inc., 984 F. Supp. 2d 873, 880 (W.D. Tenn. 2013) (Judge John Fowlkes, Jr.); H.R. 21 ex rel. Reuter v. Medtronic, Inc., 996 F. Supp. 2d 671, 679 (S.D. Ohio 2014) (Judge Timothy 22 Black). 23 The Supreme Court and our court of appeals have spoken on this issue. A preemption 24 defense does not confer federal-question jurisdiction “even if the defense is anticipated in the 25 plaintiff’s complaint” as it is here, and “even if both parties concede that the federal defense is 26 the only question truly at issue.” Balcorta, 208 F.3d at 1106 (quoting Franchise Tax Bd., 463 27 U.S. at 14). To the extent that Dooley, Jenkins, and Reuter hold otherwise, this Court disagrees. 28 Defendants cannot rely on a preemption defense to support removal. 3 1 Defendants next argue that plaintiffs have necessarily raised federal issues by alleging 2 violations of federal law to support elements of their claims (Def.’s Opp. at 7 (citing Compl. ¶¶ 3 857, 882–83)). Defendants point the Court to Burrell v. Bayer Corp., No. 117CV00031 MOC 4 DCK, 2017 WL 1032524, at *3 (W.D.N.C. Mar. 17, 2017) (Judge Max Cogburn, Jr.), a decision 5 out of the Western District of North Carolina arising from another suit against Bayer related to 6 the Essure device. In Burrell, the court acknowledged that the complaint did not state a federal 7 claim, but held that the because the plaintiffs alleged violations of federal requirements, the 8 complaint necessarily raised federal issues. 9 Here, like Burrell, a great number of plaintiffs’ allegations are predicated on defendants’ alleged failure to follow FDA requirements, including an allegation that failure to comply with 11 For the Northern District of California United States District Court 10 federal requirements amounts to negligence per se (e.g. Compl. ¶¶ 857–60; 883–887; 889). But 12 this alone is not enough to confer federal-question jurisdiction. If plaintiffs’ claims are also 13 “supported by alternative and independent [state-law] theories” then they do not necessarily 14 raise federal issues, and must be remanded. Rains, 80 F.3d at 343–44 (remanding suit that 15 alternatively pled a violation of state and federal law to fulfill an element of a claim). Such is 16 the case here. The complaint states garden-variety California negligence, products liability, 17 warranty, and fraud claims without reference to federal law (see Compl. ¶¶ 855–857; 909; 18 935–940; 959–965). Plaintiffs cannot be faulted for explicating alternative federal-law-based 19 theories, especially since they must do so to avoid preemption. 20 Our court of appeals has made it clear that where a complaint pleads alternative theories 21 to support a claim — one federal and one state-based — it does not satisfy the “necessarily 22 raised” requirement of federal-question jurisdiction. Therefore, “federal law is not a necessary 23 element of [plaintiffs’] claim[s].” Rains, 80 F.3d at 343–44. To the extent Burrell is in conflict 24 with this result, the Court is bound by Rains and finds that plaintiffs have not necessarily raised 25 federal issues by pleading alternative theories that rely, in part, on the breach of federal duties. 26 Finally, at oral argument defendants relied on Grable, arguing that it modified the 27 standard set forth in Merrell Dow. The part of Grable relied upon by counsel, however, related 28 to the substantiality and federal-state balance prongs of the four-part test for federal-question 4 1 jurisdiction. Grable, unlike this action, indisputably raised a federal issue, which was as an 2 “essential element” of the only claim. Because the complaint here does not necessarily raise 3 federal issues, the Court does not reach the other prongs of the Supreme Court’s test for federal- 4 question jurisdiction. Accordingly, Plaintiffs’ action must be REMANDED. 5 CONCLUSION 6 For the foregoing reasons, plaintiffs’ motion to remand is GRANTED. The pending 7 motion to dismiss is DENIED AS MOOT The Clerk shall please REMAND the action to Superior 8 Court for Contra Costa County and CLOSE THE FILE. 9 11 For the Northern District of California United States District Court 10 IT IS SO ORDERED. 12 13 Dated: June 9, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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