Moore v. C R Bard Inc et al

Filing 40

MEMORANDUM AND ORDER - The Bard defendants' motion to dismiss 2 is denied as moot. The plaintiff Moore is to show cause no later than December 3, 2020, why this court should not consider and decide the defendant McKesson's motion to dismiss 11 as an uncontested motion. Signed by District Judge Sam A. Crow on 11/19/2020. (ctv)

Case 2:20-cv-02428-SAC-KGG Document 40 Filed 11/19/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS,
KENNETH MOORE
Plaintiff,
Vs.

No. 20-2428-SAC

C.R. BARD, INC., BARD
PERIPHERAL VASCULAR, INC.,
MCKESSON CORPORATION, et al.,
Defendants.
MEMORANDUM AND ORDER
This products liability action was originally filed in the County
Court of Dallas County, Texas, with Kenneth Moore being one of the 17
named plaintiffs. C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. (“Bard
defendants”) removed this action to the United States District for the
Northern District of Texas, Dallas Division, based on diversity jurisdiction
and on the allegation that the plaintiffs had improperly joined the Texas
corporation, McKesson Corporation (McKesson), to defeat diversity
jurisdiction. ECF# 1. According to the notice of removal, the plaintiffs had
alleged that McKesson was involved in establishing, marketing and
administering the Bard Reach program that tracked patients implanted with
Bard IVC filters for follow up care or retrieval of the filter and that McKesson
also marketed the filters through this program. The Bard defendants assert

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the plaintiffs’ complaint failed to allege that they were enrolled in this
program or that their enrollment resulted in any filter-related injuries. Thus,
the Bard defendants argued McKesson was fraudulently joined.
The Bard defendants next moved to dismiss the out-of-state
plaintiffs’ claims for lack of personal jurisdiction arguing in part that these
plaintiffs had pleaded no facts connecting their injuries or the defendants’
alleged actions to Texas. ECF# 2. Six days later, the defendant McKesson
filed a motion to dismiss without prejudice the plaintiff’s claims for lack of
subject matter jurisdiction. ECF# 11. McKesson asks this court to find it was
fraudulently joined and to dismiss it without prejudice as a non-diverse
defendant fraudulently joined for which subject matter jurisdiction is lacking.
The plaintiffs were granted an extension of time to August 27,
2020, to file their responses to both pending motions to dismiss. (ECF# 15).
They, however, responded only to the Bard defendants’ motion to dismiss
(ECF# 19) and then moved to sever and transfer venue of out-of-state
plaintiffs’ cases (ECF# 20). The August 27th deadline passed without the
plaintiffs responding to McKesson’s motion. Without addressing the question
of fraudulent joinder raised in McKesson’s motion, the United States District
Court for the Northern District of Texas on August 31, 2020, granted the
plaintiffs’ motion to sever and transfer venue. ECF# 26. The plaintiff Moore’s
case was severed and transferred into the District of Kansas on September

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2, 2020. The court’s docket record reflects that McKesson’s counsel who filed
the motion to dismiss has withdrawn, and new counsel has entered their
appearance as of September 4, 2020.
The court finds that the order severing and transferring Moore’s
action to this court effectively moots the Bard defendants’ motion to dismiss.
McKesson’s motion to dismiss remains pending. The court hereby orders the
plaintiff Moore to show cause why this court should not consider and decide
the defendant McKesson’s motion to dismiss as an uncontested motion
pursuant to D. Kan. Rule 7.4(b). The plaintiff shall file his response no later
than December 3, 2020.
IT IS THEREFORE ORDERED that the Bard defendants’ motion to
dismiss (ECF# 2) is denied as moot;
IT IS FURTHER ORDERED that the plaintiff Moore is to show
cause no later than December 3, 2020, why this court should not consider
and decide the defendant McKesson’s motion to dismiss (ECF# 11) as an
uncontested motion.
Dated this _19th_ day of November, 2020, Topeka, Kansas.

____/s Sam A. Crow______________________
Sam A. Crow, U.S. District Senior Judge

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