Moore et al v. Stryker Corporation et al

Filing 1

NOTICE OF REMOVAL Filing fee $ 350.00 receipt number 113C-4072668, filed by Stryker Corporation, Stryker Sales Corporation. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit 1 - State Court file, # 3 Exhibit 2 - Declaration of Francis M. McDonald, Jr., # 4 Exhibit 3 - Notice of Filing Notice of Removal to Federal Court)(McDonald, Francis)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
AWILDA MARIE MOORE and
GERRICK D. MOORE, her husband

CASE NO.:

Plaintiffs,
vs.
STRYKER CORPORATION, STRYKER
SALES CORPORATION, BREG, INC., IFLOW CORPORATION, McKINLEY
MEDICAL, LLC., MOOG, INC., CURLIN
MEDICAL, INC., DJO, LLC, f/k/a DJ
ORTHOPEDICS, INC.,
Defendants.
___________________________________/
DEFENDANTS, STRYKER CORPORATION AND STRYKER SALES
CORPORATION’S, NOTICE OF REMOVAL
Defendants,

STRYKER

CORPORATION

and

STRYKER

SALES

CORPORATION (hereinafter referred to collectively as “Stryker Defendants”), by and
through their undersigned counsel, hereby file this Notice of Removal of this action,
currently pending in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm
Beach County, Florida, Case No. 50-2011-CA-008067-XXXX-MB, to the United States
District Court for the Southern District of Florida, West Palm Beach Division. In support
of this Notice of Removal, Stryker Defendants state the following:
Short and Plain Statement of Grounds for Removal
THE REMOVED CASE
1.

The removed case is a civil action filed on June 1, 2011 in the Fifteenth
1

Judicial Circuit, in and for Palm Beach County, Florida, and captioned Awilda Maria
Moore and Gerrick D. Moore, her husband, v. Stryker Corporation, Stryker Sales
Corporation, Breg, Inc., I-Flow Corporation, McKinley Medical, LLC, MOOG, Inc.,
Curlin Medical, Inc., DJO, LLC, f/k/a DJ Orthopedics, Inc., Case No. 50-2011-CA008067-XXXX-MB.
2.

This action arises out of an injury allegedly sustained by Plaintiffs in

connection with the use of a postoperative infusion pump (“pain pump”) designed and
manufactured by one of the aforementioned defendants, referred to in the Complaint as
“Defendant Pain Pump Manufacturers”. See Complaint at ¶ 28. Plaintiffs’ Complaint
seeks to recover damages from the Pain Pump Manufacturers.
PAPERS FROM THE REMOVED ACTION
3.

Pursuant to Title 28 U.S.C. § 1446(a), Stryker Defendants attach to this

Notice of Removal a copy of all pleadings, orders and other papers or exhibits of every
kind currently on file in the state court action. See composite Exhibit 1, attached hereto.
THE REMOVAL IS TIMELY
4.

The Stryker Defendants were served with the complaint in this matter on

August 31, 2011. This notice of removal is filed within thirty (30) days of receipt of the
summons and complaint. Accordingly, this Notice of Removal is timely filed under Title
28 U.S.C. § 1446(b).
VENUE IS PROPER
5.

Venue is proper in the West Palm Beach Division of this Court because

this action is being removed from the Fifteenth Judicial Circuit, in and for Palm Beach

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County, Florida and the acts complained of in Plaintiffs’ Complaint occurred, upon
information and belief, in Palm Beach County, Florida, which is within the geographical
boundaries of this Division. See Complaint at ¶ 2; Local Rule 3.4(d).
DIVERSITY OF CITIZENSHIP EXISTS BETWEEN THE PARTIES
6.

At all times material hereto, Plaintiffs AWILDA MARIE MOORE and

GERRICK D. MOORE were residents and citizens of Wellington, Palm Beach County,
Florida. See Complaint at ¶¶ 3 and 4.
7.

At all times material hereto, the Stryker Defendants were and are

Michigan corporations with their principal place of business in Michigan. See Complaint
at ¶ 5.
8.

All of the other Defendant Pain Pump manufacturers are companies

organized under the laws of states other than Florida, and all of them have their principal
places of business in states other than Florida. See Complaint at ¶¶ 6 – 21.
9.

Because Plaintiffs are citizens of Florida, and the defendants are not,

complete diversity exists under 28 U.S.C. § 1332.
THE AMOUNT IN CONTROVERSY REQUIREMENT IS SATISFIED
10.

Plaintiffs’ state court complaint alleges that this is “an action for damages

that exceeds the jurisdictional amount of this court.” See Complaint at ¶ 1. While that
statement may announce only that Plaintiffs are seeking to recover something in excess
of $15,000.00, (the jurisdictional minimum of Florida’s circuit courts), a fair and
reasonable interpretation of all the allegations of Plaintiffs’ claimed damages, together
with the Declaration of Francis M. McDonald, Jr., Stryker Defendants’ counsel, attached

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hereto as Exhibit 2, satisfies the amount in controversy requirement for federal court
diversity matters.
11.

Plaintiffs contend that the use of a postoperative pain pump has caused

Plaintiff AWILDA MARIE MOORE to experience bodily injury, pain and suffering,
disability, physical impairment, mental anguish, inconvenience, aggravation of a preexisting condition, loss of the capacity for the enjoyment of life, the costs of medical care
and expenses, loss of earnings and loss of the ability to earn money, all of which damages
and losses will continue in the future.

See Complaint at ¶ 48.

Even though the

Complaint does not claim a specific amount of monetary damages, removal from state
court is jurisdictionally proper if it is facially apparent from the complaint that the
amount in controversy exceeds the jurisdictional requirement. Williams v. Best Buy Co.,
Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). Given these allegations, it strains reason to
conclude that the monetary jurisdictional requirement has not been met. Moreover, the
Declaration of Francis M. McDonald, Jr. provides additional support that the $75,000.00
floor for the requisite amount in controversy has been fulfilled. Through their counsel,
Plaintiffs have placed a value on this case of over twenty times the jurisdictional limit
($75,000.00) of this Court.1 Taken together, the allegations of the Complaint as well as
Plaintiffs’ settlement demand establish that the amount in controversy in this action
satisfies 28 U.S.C. § 1332(a).

1

Pursuant to Pretka v. Kolter City Plaza, II, Inc., 608 F.3d 744, 751 (11th Cir. 2010), courts are permitted to
consider evidence of amount in controversy where a complaint does not contain a specific amount of
claimed damages. One of the permissible forms of evidence is an affidavit and declaration, which are not
limited in scope by the substantive jurisdictional requirements of removal. Id. at 755.

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Filing Of Removal Papers
12.

Pursuant to 28 U.S.C. § 1446(d), written notice of the removal of this

action will be promptly served on Plaintiffs’ counsel.
13.

Concurrent with the filing of this Notice of Removal, the Stryker

Defendants have filed a Notice of Filing the Notice of Removal, including a true and
correct copy of the Notice of Removal with the Clerk of the Circuit Court of the Fifteenth
Judicial Circuit, in and for Palm Beach County, Florida. See Exhibit 3, attached hereto
without accompanying exhibits.
14.

The undersigned counsel is authorized by the Stryker Defendants to file

this Notice of Removal, is licensed in the State of Florida and is a member in good
standing of the Bar of this Court.

Dated: September 14, 2011.

Respectfully submitted,

s/ Francis M. McDonald, Jr.
FRANCIS M. McDONALD, JR., ESQ.
Florida Bar No. 0327093
McDONALD TOOLE WIGGINS, P.A.
Mailing Address:
Post Office Box 4924
Orlando, FL 32802-4924
Office Location:
485 N. Keller Road, Suite 401
Maitland, FL 32751
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of
Removal was electronically filed with the Clerk of the Court using CM/ECF on
September 14, 2011; and served by U. S. mail on all counsel or parties of record on the
Service List below.
/s/ Francis M. McDonald, Jr.
FRANCIS M. McDONALD, JR., ESQ.
Florida Bar No. 0327093

SERVICE LIST

C. Calvin Warriner, III, Esq.
[e-mail]
Searcy Denney Scarola Barnhart & Shipley, PA
2139 Palm Beach Lakes Blvd.
West Palm Beach, FL 33409
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs

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