Buckles v. Otismed Corporation et al
Filing
32
ORDER denying 12 Motion to Dismiss for Failure to State a Claim; terminating as moot 15 Motion to Remand to State Court. Signed by Judge Roy B. Dalton, Jr. on 12/28/2016. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NANCY BUCKLES,
Plaintiff,
v.
Case No. 6:16-cv-1619-Orl-37KRS
SCOTT COOMBS and HOWMEDICA
OSTEONICS CORP.,
Defendants.
ORDER
This cause is before the Court on the following:
1.
Scott Coombs’[s] Motion to Dismiss Complaint for Failure to State a Claim
Under Federal Rule of Civil Procedure 12(b)(6) and Incorporated
Memorandum of Law (Doc. 12), filed October 11, 2016;
2.
Plaintiff’s Motion to Remand and Incorporated Memorandum of Law
(Doc. 15), filed October 12, 2016;
3.
Plaintiff’s Response in Opposition to Scott Coombs[’s] Motion to Dismiss
and Incorporated Memorandum of Law (Doc. 20), filed October 31, 2016;
and
4.
Defendant [Howmedica Osteonics Corp.]’s Response in Opposition to
Motion Remand and Incorporated Memorandum of Law (Doc. 21), filed
October 31, 2016.
1
BACKGROUND 1
On August 21, 2012, Plaintiff Nancy Buckles (“Buckles”) underwent knee
replacement surgery. (Doc. 2, ¶ 9.) According to the Complaint, the was performed using
either a Stryker ShapeMatch cutting guide (“Cutting Guide”) or an OtisMed cutting block
(“Cutting Block”). 2 (Id. ¶¶ 9, 10.) Defects in the cutting device used during Buckles’s
surgery allegedly caused her to suffer “a significant slope of the proximal tibia, leading to
a poor outcome resulting in mechanical loosening and the need for revision surgery.”
(Id. ¶¶ 13, 14.)
Based on the foregoing, Buckles filed a product liability action in state court 3 on
August 4, 2016, seeking to recover compensatory damages, costs, and interest from
OtisMed Corporation (“OtisMed”), Stryker Corporation (“Stryker”), and Scott Coombs
(“Coombs”) (collectively “Defendants”). (Doc. 1-3, pp. 4–13.) Specifically, Buckles
asserted state law claims for: (1) negligence (id. ¶¶ 15–21, 30–36, 45–50) (Counts I, III &
V), and strict liability (id. ¶¶ 22–29, 37–44) (Counts II & IV). 4
On November 15, 2016, Stryker timely removed this action to federal court on the
basis of diversity jurisdiction under 28 U.S.C. § 1332. (Doc. 1 (“Notice”).) Stryker averred
that removal was proper because: (1) the amount in controversy exceeds $75,000
1
These facts are taken from the Complaint, the allegations of which the Court must
accept as true when considering a motion to dismiss. See Linder v. Portocarrero, 963
F.2d 332, 334 (11th Cir. 1992).
2 As defined in the Complaint, cutting blocks “are single use, disposable cutting
guides which are intended to be used during knee replacement surgery to assist in the
positioning of the replacement components in guiding the marking of bone prior to
cutting.” (Doc. 2, ¶ 12.) The cutting blocks are customized for each patient by proprietary
3D imaging software that uses patient-specific data taken from MRI or CT scans. (Id.)
3 (See Doc. 1-3, pp. 4–13.)
4 Plaintiff originally asserted Counts I and II against OtisMed, Counts III and IV
against Stryker Corporation, and Count V against Coombs. (Doc. 2.)
2
(id. at 10–13); and (2) complete diversity exists between Plaintiff, a citizen of Florida, and
Stryker, a citizen of Michigan, and OtisMed, a citizen of California. (Id. ¶¶ 8–10.) In the
Notice, Stryker concedes that Coombs is a citizen of Florida and therefore not diverse
from Buckles. However, Stryker asserts that the Court should disregard Coombs
citizenship in determining the existence of diversity jurisdiction because Buckles
fraudulently joined Coombs to defeat diversity jurisdiction. (Id. ¶ 11.)
On October 6, 2016, the parties stipulated to, and the Court granted, the
substitution of Defendant Howmedica Osteonics Corp. (“Howmedica”) in place of
Stryker and OtisMed on the ground that the product used for the surgery was a Stryker
Cutting Guide manufactured by Howmedica, not an OtisMed Cutting Block. (See Docs.
9, 17.) Buckles now moves to remand this action to state court, claiming that she has
stated a viable cause of action against Coombs. (Doc. 15.) Buckles also argues that this
action should be remanded because Howmedica has failed to establish that the amount
in controversy exceeds the jurisdictional limit. (Id.) For his part, Coombs seeks dismissal
of the claims against him for failure to state a claim. (Doc. 12.) The parties have filed their
respective responses (Docs. 20, 21), and the motions are now ripe for adjudication.
STANDARDS
“[A]ny civil action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed . . . to the district court of the United
States for the district and division embracing the place where such action is pending.”
28 U.S.C. § 1441(a). A district court may have original jurisdiction where both “the matter
in controversy exceeds the sum or value of $75,000” and the citizenship of each plaintiff
is
diverse from the
citizenship of
each
3
defendant. 28 U.S.C. § 1332(a);
Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996) (citing Strawbridge v. Curtiss, 7 U.S. 267
(1806)).
The doctrine of fraudulent joinder provides an exception to this diversity of
citizenship requirement. Tran v. Waste Mgmt., Inc., 290 F. Supp. 2d 1286, 1292
(M.D. Fla. 2003). “When a plaintiff names a non-diverse defendant solely in order to
defeat diversity jurisdiction, the district court must ignore the presence of the non-diverse
defendant and deny any motion to remand the matter back to state court.” Henderson v.
Wash. Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006); Waste Mgmt., Inc.,
290 F. Supp. 2d at 1292. “To establish fraudulent joinder, ‘the removing party has the
burden of proving by clear and convincing evidence that either: (1) there is no possibility
the plaintiff can establish a cause of action against the resident defendant; or (2) the
plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state
court.’” Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011) (per curiam)
(quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)) (alterations omitted).
The removing party bears the burden of proving by clear and convincing evidence that
fraudulent joinder has occurred. Stillwell, 663 F.3d at 1332.
A district court’s process for resolving a claim of fraudulent joinder is similar to that
used for ruling on a motion for summary judgment. Crowe, 113 F.3d at 1538. To
determine whether the case should be remanded, the district court must evaluate the
factual allegations in the light most favorable to the plaintiff and must resolve any
uncertainties about state substantive law in favor of the plaintiff. Legg v. Wyeth, 428 F.3d
1317, 1322 (11th Cir. 2005) (quoting Pacheco de Perez v. AT & T Co., 139 F.3d 1368,
1380 (11th Cir. 1998)). The district court makes these determinations based on the
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plaintiff’s pleadings at the time of removal; however, the court may also consider affidavits
and deposition transcripts submitted by the parties. Id. Though the district court must
resolve all questions of fact in the plaintiff’s favor, when the plaintiff fails to dispute
affidavits proffered by the defendant, the court may not resolve the facts in the plaintiff’s
favor based solely on unsupported allegations in the complaint. Id. at 1323.
DISCUSSION
I.
Motion for Remand
A.
Diversity of the Parties
Buckles first argues that complete diversity does not exist between the parties
because she and Coombs are citizens of the same state. (Doc. 15, pp. 2–5.) Howmedica
does not dispute the lack of diversity but argues that Buckles fraudulently joined Coombs
to this action because: (1) the negligence claim against Coombs is premised upon duties
that do not exist under Florida law (id. ¶¶ 13–14); (2) Buckles fails to allege that Coombs
breached any duty of care independent of his employer’s duty (id. ¶¶ 15–16);
(3) Coombs had no duty to warn the physician who utilized the Cutting Guide during
surgery of the risks and dangers associated with the device (id. ¶ 18); and (4) Buckles’s
allegations against Coombs lack evidentiary support (id. ¶ 19.) For the reasons that follow,
the Court agrees with Howmedica.
To state a cause of action for negligence, a plaintiff must
allege: (1) that a defendant had a legal duty of care owed to
the plaintiff; (2) the defendant breached that duty; (3) that the
breach was the proximate cause of the injury; and (4) actual
loss or damages. . . . Under Florida law, a sales representative
may be held individually liable for her negligent acts
committed in the scope of her employment. . . . However, to
be held individually liable, it must be alleged that an employee
acted tortiously in her individual capacity, or personally
participated in the tortious conduct. . . . In other words, the
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employee must individually owe a duty to plaintiff, or it must
be alleged that the employee knew or should have known of
the risks caused by the product.
Wilssens v. Medtronic, Inc., No. 09-60792-CIV, 2009 WL 9151079, at *6 (S.D. Fla. July
23, 2009) (citations omitted).
Here, Buckles alleges that Coombs was under a duty to promote, advertise,
represent, recommend, and sell medical devices, including the Cutting Guide in a
non-negligent manner. Coombs allegedly breached this duty by:
a.
negligently promoting, advertising, representing,
recommending and selling the [Cutting Guide] for use
during [Buckles’s] knee replacement surgery;
b.
negligently testing or failing to test the [Cutting Guide];
c.
negligently inspecting or failing to inspect the [Cutting
Guide] for defects;
d.
marketing, promoting, advertising and representing
that the [Cutting Guide] was suitable for use when, if
fact, it was not;
e.
negligently warning or failing to warn medical
professionals, patients and end users that . . . use
of the [Cutting Guide] during knee replacement
. . . could cause significant knee misalignment; and
f.
marketing, promoting, advertising and representing
that the [Cutting Guide] was safe when, in fact,
Defendant knew that it was not because the
[Cutting Guide] would cause the knee to be
improperly implanted during normal and foreseeable
use.
(Doc. 2, ¶ 48.)
As set forth in Coombs’s affidavit, however: (1) he was present during Buckles’s
surgery “only to facilitate bringing the implants to the operating room and for no other
purpose” (Doc. 21-1 ¶ 4); (2) he did not call on Buckles’s surgeon at any time prior to her
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surgery on August 21, 2012, or anytime thereafter (id. ¶ 5); (3) he did not “promote,
advertise, represent, recommend or sell” the Cutting Guide used during Buckles’s surgery
(id. ¶ 7); (4) he had no involvement in the preoperative imaging for Buckles’s Cutting
Guide and had no other involvement in the planning of her surgery (Id. ¶ 8); and (5) he
has no medical training, but rather, relies on the materials and information provided to
him by Howmedica in carrying out his job duties. (Id. ¶ 9.)
Buckles provides no evidence rebutting these facts. Instead, she relies solely on
the allegations in the Complaint to support her negligence claim against Combs.
However, it is well-established by the U.S. Court of Appeals for the Eleventh Circuit that
when a defendant’s affidavit is undisputed by a plaintiff, the court cannot then resolve the
facts in the plaintiff’s favor based solely on the unsupported allegations in the complaint.
See Legg v. Wyeth, 428 F.3d 1317, 1323 (11th Cir. 2005). In such instance, the
defendant’s undisputed evidence is fatal to the plaintiff’s claim. (Id.)
Faced with the unopposed facts provided in Coombs’s affidavit, the Court
concludes that Howmedica has established by clear and convincing evidence that there
is no possibility that Buckles can establish a negligence claim against Coombs. See
Wilssens, 2009 WL 9151079, at *6 (denying plaintiff’s motion to remand where removal
was based on fraudulent joinder of a sales representative who had: (1) “no medical
training;” (2) “no independent knowledge of any potential danger posed by” the defective
product that caused plaintiff’s injuries; (3) and “no role in testing, design, research,
manufacture, or assembly” of the product). Accordingly, the Court is persuaded that
Coombs was fraudulently joined to this action and is due to terminated as a defendant in
this case. With Coombs’s departure from the suit, complete diversity exists between the
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parties.
B.
Amount in Controversy
The sole remaining issue is whether the amount in controversy exceeds $75,000,
the threshold for federal diversity jurisdiction. See 28 U.S.C. § 1332(a). Howmedica
argues that it is facially apparent from the pleadings that the amount in controversy
exceeds $75,000 due to the nature and the extent of the injuries alleged in the Complaint.
(Doc. 21, pp. 11–13). In rebuttal, Buckles argues that the “Complaint seeks only more
than $15,000 and there are no other papers from which the Court may divine the amount
in controversy.” (Doc. 15, pp. 3, 6–9). For the reason stated below, the Court agrees with
Howmedica.
Where removal is premised on diversity jurisdiction, the removing party “must
prove by a preponderance of the evidence that the amount in controversy exceeds the
jurisdictional requirement.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.
2001); Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010). The Eleventh
Circuit has set forth a procedure for trial courts to follow in determining whether the
jurisdictional amount is satisfied at the time of removal. Specifically,
[w]hen the complaint does not claim a specific amount of
damages, removal from state court is proper if it is facially
apparent from the complaint that the amount in controversy
exceeds the jurisdictional requirement. If the jurisdictional
amount is not facially apparent from the complaint, the court
should look to the notice of removal and may require evidence
relevant to the amount in controversy at the time the case was
removed.
Williams, 269 F.3d at1319.
Courts need not “suspend reality or shelve common sense in determining whether
the face of a complaint . . . establishes the jurisdictional amount.” Roe v. Michelin N. Am.,
8
Inc., 613 F.3d 1058, 1062 (11th Cir. 2010). “Instead, courts may use their judicial
experience and common sense in determining whether the case stated in a complaint
meets federal jurisdictional requirements.” Id.
Here, Buckles avers that due to the use of the Cutting Guide during her total knee
replacement, she requires revision surgery. (Doc. 2 ¶ 14.) Buckles also asserts that she
sustained permanent and continuing damages, including past and future medical
expenses, pain, disability, inconvenience, disfigurement, suffering, and mental anguish.
(Id.). Accordingly, she seeks compensatory damages, costs, and interest. (Id. at 13.)
Applying judicial experience and common sense, the Court finds that the nature of
the injury alleged in the Complaint clearly reflects an amount in controversy exceeding
$75,000. See e.g. Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000)
(finding that the amount in controversy requirement was satisfied where the plaintiff
alleged that her slip and fall resulted in severe physical injury, lost wages, lost enjoyment
of life, and pain and suffering); see also Roe, 613 F.3d at 1064 (explaining that preventing
courts from acknowledging the value of a claim, merely because it is unspecified by the
plaintiff, would force courts to abdicate their statutory right to hear a case). Plaintiff’’s
position that the amount in controversy is not demonstrably above $75,000.00 strains
credulity, especially in light of the cost and complexity of medical device product liability
litigation.
Having determined that complete diversity exists and that the amount in
controversy exceeds the jurisdictional limit, the Court concludes that remand is
inappropriate.
CONCLUSION
9
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Plaintiff’s Motion to Remand and Incorporated Memorandum of Law (Doc.
15) is DENIED.
2.
Defendant Scott Coombs (Doc. 2, ¶¶ 45–50) is DISMISSED WITHOUT
PREJUDICE.
3.
The Clerk is DIRECTED to terminate Defendant Scott Coombs as a party
to this action.
4.
Scott Coombs’ Motion to Dismiss Complaint for Failure to State a Claim
Under Federal Rule of Civil Procedure 12(b)(6) and Incorporated
Memorandum of Law (Doc. 12) is TERMINATED AS MOOT.
DONE AND ORDERED in Chambers in Orlando, Florida, on December 28, 2016.
Copies:
Counsel of Record
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