DaPron et al v. Verska et al

Filing 51

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; adopting 38 Report and Recommendations.; granting 8 Motion to Remand. The matter is REMANDED to the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Ada, for all further proceedings. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WANDA DaPRON; RORY KELLY;
JASON KELLY; SHERRY L. KELLY;
SHERE DILLON; and ANGIE DaPRON,
Plaintiffs,

Case No. 1:12-CV-00246-EJL
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
JOSEPH M VERSKA, M.D.; SPINE
INSTITUTE OF IDAHO, P.A., and
Idaho corporation; JOHN M.
LIVINGSTON, M.D. and TREASURE
VALLEY HOSPITAL LIMITED
PARTNERSHIP, dba Treasure Valley
Hospital; and THEKEN SPINE LLC, an
Ohio limited liability company,
Defendants.

The Chief United States Magistrate Judge Candy W. Dale issued a Report and
Recommendation in this matter. (Dkt. 38.) Pursuant to 28 U.S.C. § 636(b)(1), the parties
had fourteen days in which to file written objections to the Report and Recommendation.
Objections were filed by Defendant Theken Spine LLC (“Theken”). Responses to the
objections were filed by Plaintiffs and Defendant Treasure Valley Hospital Limited
Partnership. The matter is now ripe for the Court’s consideration.
ORDER ADOPTING REPORT AND RECOMMENDATION - 1

DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge. Where
the parties object to a report and recommendation, this Court shall make a de novo
determination of those portions of the report which objection is made. Id. Where,
however, no objections are filed the district court need not conduct a de novo review. In
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted
the requirements of 28 U.S.C. § 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to
the extent that no objections are made, arguments to the contrary are waived. See Fed. R.
Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within
fourteen days of service of the Report and Recommendation). “When no timely objection
is filed, the Court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Advisory Committee Notes to Fed. R.
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Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th
Cir.1974)). In this case, the objections were filed so the Court is required to conduct a de
novo determination of the Report and Recommendation.

FACTUAL BACKGROUND
The Court adopts the factual background set forth by Judge Dale on pages 1-3:
This is a medical malpractice and products liability case arising from the
death of Gerald DaPron, who died on the operating table after a spine surgeon
attempted to implant a device manufactured and sold by Defendant Theken Spine
LLC. Following Mr. DaPron’s death, his surviving children and stepchildren
(“Plaintiffs”) filed an action in Idaho state court against the two operating
physicians (Joseph Verska M.D. and John Livingston M.D.), the hospital (Treasure
Valley Hospital), and the Spine Institute of Idaho. The Complaint was filed in May
of 2011. Plaintiffs thereafter filed two amended complaints in state court. The first
amended complaint added Integra Lifesciences as a defendant – the company
Plaintiffs believed manufactured the device implanted in Mr. DaPron’s spine.
When Plaintiffs were made aware that Integra Lifesciences was merely a holding
company, Plaintiffs filed a second amended complaint on April 18, 2012, naming
Theken Spine LLC (“Theken”) as a defendant – the actual manufacturer of the
device.
On May 17, 2012, Theken removed the case to federal court without
obtaining the consent of any of the other defendants.
Before the Court is Defendant Treasure Valley Hospital’s Motion to
Remand. (Dkt. 8.) Treasure Valley Hospital (the “Hospital”) contends that
Theken’s removal to federal court was procedurally defective. Specifically,
the Hospital asserts that Theken did not obtain the consent of the other
defendants in the case before seeking removal and that the failure to do so
requires remand. Defendants Joseph Verska and the Spine Institute of
Idaho, along with Plaintiffs, have joined the Hospital’s motion to remand.
(Dkt. 9 and 12.)

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It is undisputed that prior to January 6, 2012, the removal statute, 28
U.S.C. § 1446, required the consent of all defendants before a case could be
removed to federal court. It is also undisputed that, on December 7, 2011,
the President of the United States signed into law the Federal Courts
Jurisdiction and Venue Clarification Act, which amended the removal
statute, and no longer requires the consent of all defendants prior to
removal. Theken contends that, although Plaintiffs’ original state complaint
was filed before the amendments to the removal statute took effect, the fact
that Plaintiffs amended their complaint adding Theken after the
amendments makes the amendments applicable in this case.

TIMELINESS OF OBJECTIONS
The first issue is the timeliness of the Theken’s objections. The Court finds the
objections were timely filed. The Report and Recommendation was filed on
September 18, 2012 and the parties had fourteen (14) days to file objections. However,
Fed. R. Civ. P. 6(d) adds three days to the filing deadline. Therefore, the objections filed
on October 5, 2012 were timely filed even though the objections were filed on
October 5, 2012 (seventeen days after the date of the filing of the Report and
Recommendation).

OBJECTIONS
Judge Dale recommended Defendant Treasure Valley Hospital's motion to remand
be granted after determining under Idaho law the Second Amended Complaint adding
Theken related back to the filing date of the original pleading so the2011 amendments to
the federal removal statute (which do not require the consent of all other defendants to
remove a case to federal court) did not apply to this case. Because Treasure Valley
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Hospital did not consent to the removal, Judge Dale determined the removal was
defective and the matter should be remanded.
Theken argues the recommendation to remand this action to state court is in error
for three reasons: the relation back doctrine does not apply to determining when the
action commenced; under Idaho law the action "commenced" when the amended
complaint was filed; and the amended complaint invokes a federal question that supports
federal jurisdiction over this matter. The Court will address each of these objections.
As to the standard of review for a motion to remand, the Court finds Judge Dale
set forth the correct standard on page 4:
“A defendant may remove an action to federal court based on federal
question jurisdiction or diversity jurisdiction.” Hunter v. Philip Morris
USA, 582 F.3d 1039, 1042 (9th Cir. 2009). “It is presumed, however, ‘that a
cause lies outside [the] limited jurisdiction [of the federal courts] and the
burden of establishing the contrary rests upon the party asserting
jurisdiction.’” Hatcher v. City of Porterville, 2012 U.S. Dist. LEXIS 16068
* 9-10 (E.D. Cal. 2012) (quoting Hunter, 582 F.3d at 1042). Moreover,
“[f]ederal jurisdiction must be rejected if there is any doubt as to the right of
removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
Cir. 1992).

As Judge Dale explained on pages 4-5:
Title 28 U.S.C. § 1446 prescribes the procedures for removal. Prior to the
statute’s amendment, the case law established that Section 1446 required all
defendants to join in or consent to the removal of an action and that, without
unanimous joinder, removal was defective. See Chi., Rock Island & Pac. Ry. Co. v.
Martin, 178 U.S. 245 (1900); see also, Prize Prize, Inc. v. Matrix Inc., 167 F.3d
1261, 1266 (9th Cir. 1985) (holding that “[s]ection 1446 requires all proper
defendants to join or consent to the removal notice” and that “the failure to adhere
to the unanimity rule is dispositive”).

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On December 7, 2011, the President signed into law the Federal Courts
Jurisdiction and Venue Clarification Act of 2011. Pub. L. No. 112-63. The Act
amended Title 28 of the United States Code, including the removal statute. The
Act clarifies that only defendants against whom a claim arising under federal law
is asserted are required to consent to removal. In other words, as amended, the
removal statute no longer requires unanimity.
The Act, however, makes clear that it is prospective in nature, only
applying to lawsuits commended on or after January 6, 2012. Pub. L. No. 112-63,
§ 205. Section 205 of the Act provides that “[t]he amendments made by this
title . . . shall apply to . . . any action that is removed from a State court to a United
States district court and that had been commenced, within the meaning of State
law, on or after such effective date.” Id. (emphasis added). The effective date of
the Act is January 6, 2012.
On November 1, 2011, Plaintiffs filed a stipulation to file a first amended
complaint. The state court granted Plaintiffs leave to file an amended complaint and
Plaintiffs filed their First Amended Complaint on November 16, 2011 naming Integra as a
defendant. On April 2, 2012, Plaintiffs filed a stipulation to file a Second Amended
Complaint – substituting Theken for Integra. The stipulation was approved by the state
court on April 13, 2012, and Plaintiffs’ Second Amended Complaint was served within
the applicable statue of limitations on Theken on April 18, 2012.
The Court finds determinative to the question of whether the removal amendments
apply to this case, is the issue of when did the action against Theken "commence" under
Idaho law. Theken argues this Court should apply Terra-West, Inc. v. Idaho Mutual Trust,
LLC, 247 P.3d 620 (Idaho 2011) and find the action "commenced" when the Second
Amended Complaint was filed. Judge Dale rejected Theken's broad interpretation of
Terra-West. This Court agrees the Terra-West decision was specifically limited to the

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question of does the filing of a motion to amend the complaint (instead of the date the
amended complaint is actually filed) "commence" proceedings under Idaho's Mechanics
Lien Statute. The Court finds Terra-West should not be extended as Theken argues to
hold in all cases with an amended complaint the date an action "commences" is the date
either the amended complaint is filed or the date a motion for leave to file or a stipulation
to file an amended complaint is filed with the Court. Instead, the Court finds in the case
at bar the date this action "commenced" is clearly answered by Idaho's civil rules of
procedure.
Idaho Rule of Civil Procedure 3(a) (1) provides "[a] civil action is commenced by
the filing of a complaint with the court. . . ." Theken argues the filing of the amended
complaint naming it as a defendant was "commenced" when the amended complaint was
filed. The Court respectfully disagrees, because in the case of an amended complaint the
Idaho Rule of Civil Procedure provide for an different analysis pursuant to Idaho Rule of
Civil Procedure 15(c) which provides:
Whenever the claim or defense asserted in the amended pleading arose out
of the conduct, transaction, or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates back to the date of the
original pleading. An amendment changing the party against whom a claim
is asserted relates back if the foregoing provision is satisfied and, within the
period provided by law for commencing the action against the party, the
party to brought in by amendment (1) has received such notice of the
institution of the action that the party will not be prejudiced in maintaining
a defense on the merits, and (2) knew or should have known that, but for a
mistake concerning the identity of the proper party, the action would have
been brought against the party.

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The claim against Theken is basically the same claim Plaintiffs had brought
against Integra. So the claim arose out of the same conduct, transaction or occurrence set
forth in the original pleadings. But since the amendment changed the party being sued
from Integra to Theken, the amendment also had to satisfy the requirements that Theken
was given notice of institution of the action as not to be prejudiced in maintaining its
defense and that the amendment was caused by a mistake concerning the identity of
which company manufactured the medical device alleged to have harmed Gerald DaPron.
The Court agrees with Judge Dale that all requirements of Rule 15(c) have been
satisfied and the Second Amended Complaint should relate back to the filing date of the
original complaint (or at least the filing date of the First Amended Complaint naming
Integra). Because both these relation back dates would prevent the 2011 amendments to
the removal statute from applying, Theken was required to get the consent of all
defendants for the removal. Theken did not have the consent of Treasure Valley Hospital
so the removal was defective.
The Court finds this result is also consistent with the application of Silli v.
Meininger, 2012 WL 1015803 (D.Colo. Mar. 23, 2012), to the facts of this case as
discussed in more detail by Judge Dale.
Theken next argues under McAtte v. Capital One, F.S.B., 479 F.3d 1143 (9th Cir.
2007), the Court must not apply Rule 15's relation back doctrine and must look to the date
the amended complaint was filed as the date the action was commenced. The Court
disagrees with Theken's interpretation of McAtte.
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McAtte confirms that the court must look to "the state law definition of commence
for that purpose in an action based on state law." Id. at 1146. The difference in McAtte
was that it was a class action lawsuit based on California law and when the action
commenced hinged on whether the Class Action Fairness Act of 2005 ("CAFA") applied
to allow the case to be removed to federal court. The McAtte court held that the
commencement of an action for purposes of CAFA is determined under the law of the
state in which the action is filed. Id. at 1147. In California, the relation back doctrine did
not apply to the determination of when an action is commenced in state court under
CAFA. This Court applies the applicable holdings of McAtte and finds Idaho's state law
specifically allows relation back to determine when the action against Theken
commenced.
Theken makes a final objection based on its argument that claims are not the same
as the claims Plaintiff filed against Integra and the Second Amended Complaint invokes a
federal question of federal preemption under the Food and Drug Act that allows removal.
The Court respectfully disagrees. The claims raised against Theken are in essence the
same as the claims that were raised against Integra. The fact that Theken may have a
defense to Plaintiff's claims that Integra could not have raised does not establish grounds
to remove the action to federal court. Federal jurisdiction is not conferred because a
federal law or regulation may be part of a claim or a defense. Caterpillar Inc. v.
Williams. 482 U.S. 386 (1987).

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CONCLUSION
The Court has reviewed the Report and Recommendation and the record in this
matter and finds no clear error on the face of the record. Moreover, the Court finds the
Report and Recommendation is well-founded in the law based on the facts of this
particular case and this Court is in agreement with the same. Theken's objections to the
Report and Recommendation are denied. The removal by Theken was defective and the
matter must be remanded to state court. Furthermore, this Court finds it is the state court
that must rule upon the merits of the remaining pending motions, so such motions will be
transferred along with the case to back state court.

ORDER
IT IS ORDERED:
1.

The Report and Recommendation (Dkt. 38) shall be INCORPORATED by
reference and ADOPTED in its entirety unless otherwise modified by this
Order.

2.

Defendant Treasure Valley Hospital’s Motion to Remand (Dkt. 8) is
GRANTED and the matter is REMANDED to the District Court of the
Fourth Judicial District of the State of Idaho, in and for the County of Ada,
for all further proceedings. The Clerk of Court is directed to complete all
necessary procedures to effectuate the remand of this matter to state court.

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SO ORDERED.
DATED: March 11, 2013

Honorable Edward J. Lodge
U. S. District Judge

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