Downing v. Boston Scientific Corporation et al

Filing 25

ORDER: The Clerk is directed to REMAND this action to State Court pursuant to 28 U.S.C. § 1447(c) because this Court lacks subject matter jurisdiction. After remand has been effected, the Clerk shall close the case. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 9/26/2014. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANGELA DOWNING,
Plaintiff,
v.

Case No. 8:14-cv-2219-T-33AEP

BOSTON SCIENTIFIC CORPORATION,
ET AL.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court pursuant to the
jurisdictional

briefs

filed

by

the

parties,

including

Plaintiff Angela Downing’s request for an order of remand.
(Doc. ## 17, 19). For the reasons that follow, having duly
considered the filings of the parties, the Court remands this
action to State Court pursuant to 28 U.S.C. § 1447(c) because
this Court lacks subject matter jurisdiction.
I.

Background
Downing

alleges

that

she

was

injured

after

being

implanted with Boston Scientific’s and Ethicon’s pelvic mesh
devices at St. Anthony’s Hospital in St. Petersburg, Florida
on May 5, 2010, to treat “pelvic organ prolapse and stress
urinary

incontinence.”

(Doc.

#

2

at

¶¶

43-44).

Downing

contends that she was forced to undergo a second “corrective

surgery” at Tampa General Hospital to “revise and remove
Defendants’

products.”

(Id.

at

¶

45).

Downing

further

contends that:
As a direct and proximate result of defects in
Defendants’ products and the wrongful conduct,
acts, omissions, and fraudulent misrepresentations
of Defendants, Plaintiff Angela Downing has
experienced significant mental and physical pain
and suffering, undergone surgeries and revisionary
procedures, and has sustained permanent injuries.
Additionally, she will most likely have to undergo
additional corrective procedures in the future.
Plaintiff has also suffered financial or economic
loss, including, but not limited to, obligations
for medical services and expenses, and has endured
impaired physical relations.
(Id. at ¶ 49).
Downing filed a Complaint in the Thirteenth Judicial
Circuit, in and for Hillsborough County, Florida on July 15,
2014, naming the following Defendants: Boston Scientific
Corporation, Ethicon, Inc., Ethicon LLC, Johnson & Johnson,
Jacqueline Barry, Stephen McCastlain, Selena Mitseas, Gregory
Prine,

Hugh

Richeson,

and

Jay

Shellhammer.

(Doc.

#

2).

Downing’s Complaint asserts the following causes of action
against all Defendants: (1) strict products liability -failure to warn; (2) strict products liability -- design
defect; (3) negligence; (4) breach of implied warranty; (5)
breach of express warranty; (6) fraud by concealment; and (7)
negligent infliction of emotional distress.

2

On September 5, 2014, Boston Scientific Corporation,
Johnson & Johnson, and Ethicon LLC (hereafter, the “Corporate
Defendants”) removed this action to this Court, predicating
the

Court’s

exercise

of

subject

matter

jurisdiction

complete diversity of citizenship. (Doc. # 1).

on

However, the

Corporate Defendants acknowledge that Downing, along with the
six

individually

named

Defendants

(Barry,

McCastlain,

Mitseas, Prine, Richeson, and Shellhammer) are citizens of
Florida. The Corporate Defendants assert that this Court may
nevertheless exercise subject matter jurisdiction over this
case under the doctrine of fraudulent joinder.
On September 8, 2014, this Court directed the parties to
brief the Court regarding subject matter jurisdiction. (Doc.
# 6).
(Doc.

The parties have submitted their respective briefs.
##

17,

19).

Among

other

arguments,

the

Corporate

Defendants seek an Order staying this case in its entirety
pending

transfer

to

the

Judicial

Panel

Litigation for transvaginal mesh cases.1

on

Multidistrict

Downing, on the

other hand, seeks an Order of remand based on a lack of
complete diversity of citizenship.
1

After considering these

The Court declines to consider the Corporate
Defendants’ motion to stay at this juncture because “No court
can do any act in any case, without jurisdiction of the
subject-matter.” Ex parte McCardle, 74 U.S. 506, 511 (1868).

3

arguments, the Court remands the action to State Court based
on a lack of subject matter jurisdiction.
II.

Analysis
“Federal courts are courts of limited jurisdiction [and]

possess

only

that

power

authorized

by

Constitution

and

statute, which is not to be expanded by judicial decree.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994) (internal citations omitted). “[B]ecause a federal
court is powerless to act beyond its statutory grant of
subject matter jurisdiction, a court must zealously insure
that jurisdiction exists over a case, and should itself raise
the question of subject matter jurisdiction at any point
in the litigation where a doubt about jurisdiction arises.”
Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).
In removed cases, 28 U.S.C. § 1447(c) specifies, “[i]f
at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded.” Removal statutes are strictly construed against
removal. Shamrock Oil & Gas Co. v. Sheets, 313 U.S. 100, 108
(1941). Any doubt as to propriety of removal should be

4

resolved in favor of remand to State Court. Butler v. Polk,
592 F.2d 1293, 1296 (5th Cir. 1979).2
A.

Fraudulent Joinder

“In a removal case alleging fraudulent joinder, the
removing party has the burden of proving 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.” Pacheco de Perez
v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998)(quoting
Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)(citing
Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th
Cir. 1989)). “The burden of establishing fraudulent joinder
is a heavy one. Where a plaintiff states even a colorable
claim against the resident defendant, joinder is proper and
the case should be remanded to state court.” Pacheco de Perez,
139 F.3d at 1380 (citing Cabalceta, 883 F.2d at 1562).
“The determination of whether a resident defendant has
been fraudulently joined must be based upon the plaintiff's
pleadings
affidavits

at

the

and

time

of

deposition

removal,

supplemented

transcripts

2

submitted

by

any

by

the

In Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981), the Eleventh Circuit adopted all cases
decided by the Fifth Circuit Court of Appeals prior to the
close of business on September 30, 1981, as binding precedent.

5

parties.” Pacheco de Perez, 139 F.3d at 1380. The Court must
review the factual allegations in the light most favorable to
the

plaintiff

and

must

resolve

uncertainties

about

the

applicable law in favor of the plaintiff. Id.
The fact that the plaintiff may not ultimately prevail
against the resident defendant is of no consequence. Id. The
role of the court is not to weigh the merits of a plaintiff's
claim

beyond

the

determination

of

whether

the

claim

is

colorable under state law. Id. at 1380–81 (quoting Crowe, 113
F.3d at 1538). As stated in Stillwell v. Allstate Insurance
Co., 663 F.3d 1329 (11th Cir. 2011), “all that is required to
defeat a fraudulent joinder claim is a possibility of stating
a valid cause of action.” Id. at 1333 (emphasis added)(citing
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th
Cir. 1998)).
B.

Claims against Florida Defendants

The Corporate Defendants have not advanced the argument
that Downing has fraudulently pled jurisdictional facts.
Instead, the Corporate Defendants assert that there is no
possibility the Downing can establish a cause of action
against the resident defendants. Pacheco de Perez, 139 F.3d
at 1380.
in

fraud

However, “Florida law recognizes a cause of action
against

pharmaceutical

6

sales

representatives.”

Hroncich v. Wyeth, No. 2:03-cv-659-FtM-29SPC, 2004 U.S. Dist.
LEXIS 26726, at *5 (M.D. Fla. Jan. 12, 2004) (citing Albertson
v. Richardson-Merrell, Inc., 441 So. 2d 1146 (Fla. 4th DCA
1983)).
As Downing argues in her jurisdictional brief, she has
“alleged

that

misrepresentations

representative

defendants,

to

were

made

by

Plaintiff’s

the

sales

prescribing

physician . . . [which] dealt with the safety and efficacy of
the product, the warnings given by the sales representatives
regarding the product and the instructions on the use of the
product.” (Doc. # 19 at 5).

Downing also explains that she

“named these specific sales representatives because they were
responsible for marketing and selling the incontinence and
pelvic organ prolapse products that Plaintiff’s physician
used during Plaintiff’s implant surgery on May 5, 2010.” (Id.
at 7).
As was the case in Hroncich, the Corporate Defendants
have

not

demonstrated

that

Downing

“has

no

reasonable

possibility of stating a valid cause of action as to the []
non-diverse
defendants

defendants.
were

not

Therefore,

fraudulently

the

joined,

[]
and

individual
complete

diversity is absent.” 2004 U.S. Dist. LEXIS 26726, at *5. See
also Little v. Wyeth Labs., Inc., No. 8:99-cv-2244-T-17 (M.D.

7

Fla. Dec. 9, 1999)(“The individual sales representative need
not

make

plaintiff.

fraudulent

representations

directly

to

the

After carefully reviewing this case, the Court

finds that plaintiff has made sufficient allegations against
the non-diverse defendants to support, at least, a cause of
action for fraud.”).
Without weighing the merits of Downing’s claims, the
Court finds that Downing has made a possible, colorable claim
under

Florida

law

against

the

non-diverse

Defendants.

Therefore, because the Corporate Defendants have not met
their burden of establishing fraudulent joinder, the Court
remands the action to State Court.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The Clerk is directed to REMAND this action to State
Court pursuant to 28 U.S.C. § 1447(c) because this Court
lacks subject matter jurisdiction.

(2)

After remand has been effected, the Clerk shall close
the case.
DONE and ORDERED in Chambers in Tampa, Florida, this

26th of September, 2014.

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Copies: All Counsel of Record

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