Meeks v. Damallie et al

Filing 48

MEMORANDUM OPINION re 47 Order on Motion to Remand to State Court. Signed by Neal B. Biggers on 9/30/2013. (llw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
MARY MEEKS

PLAINTIFF

V.

CIVIL ACTION NO. 2:11CV253-NBB-JMV

DR. KUSHNA K. DAMILLIE,
THE WOMAN’S CLINIC, AND
HOLOGIC, INC., formerly known as
CYTYC

DEFENDANTS

MEMORANDUM OPINION
Presently before the court is the plaintiff’s motion to remand. Upon due consideration of
the motion, response, and supporting and opposing authority, the court is ready to rule.
Factual and Procedural Background
The plaintiff, Mary Meeks, filed this action in the Circuit Court of Coahoma County,
Mississippi, seeking damages for a perforation of her uterus and small bowel burn injuries
allegedly sustained during an endometrial ablation procedure performed by Dr. Kushna K.
Damillie at The Woman’s Clinic in Clarksdale, Mississippi, using a “NovaSure” medical device
manufactured by Hologic, Inc. The plaintiff sued Dr. Damillie and the clinic on November 16,
2010. With leave of court to amend, the plaintiff filed her first amended complaint on September
26, 2011, naming Hologic as a defendant, and filed her second amended complaint on October
25, 2011, serving Damillie and The Woman’s Clinic on the same day. Plaintiff served Hologic
on November 22, 2011. Hologic alleges that it received the second amended complaint on
November 28. It was never served with the first amended complaint.
Hologic removed the case to this court on December 20, 2011, alleging that “[t]he
complaint raises on its face a substantial federal question . . . which directly and exclusively
arises under the Administrative Procedure Act,” that “Plaintiff seeks, in her Sixth Cause of

Action, a ‘declaratory judgment’ that the Food and Drug Administration’s (“FDA”) ‘pre-market
approval for the NovaSure was not properly acquired,’” and that “Count Six expressly and
exclusively arises under federal law.”
The plaintiff subsequently moved to remand based on defective removal, as the firstserved defendants, Damillie and the clinic, did not remove within thirty days of service. Hologic
also moved to dismiss on federal preemption grounds.
Analysis
The longstanding Fifth Circuit interpretation of the removal statute limited the removal
period to thirty days from the time the first defendant is served. See Getty Oil Corp., 841 F.2d
1254, 1262-63 (5th Cir. 1988). This “first-served defendant rule” was the minority view, as most
other circuits favored the “last-served defendant rule” or “fairness rule.” See, e.g., Bailey v.
Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1205 (11th Cir. 2008) (observing “that the trend in
recent case law favors the last-served defendant rule”).
The Federal Courts Jurisdiction and Venue Clarification Act of 2011 resolved the split in
favor of the majority “last-served defendant rule.” 28 U.S.C. § 1446(b)(2)(B). The amended
statute provides, “Each defendant shall have 30 days after receipt by or service on that defendant
of the initial pleading or summons . . . to file the notice of removal.” Id. Further, the statute now
allows earlier-served defendants to join in removal by later-served defendants who remove
within their own individual statutory thirty-day removal period. Id. This is precisely what
occurred in the present case.
The defendants’ removal would, therefore, be sound under the amended statute, and this
court would retain jurisdiction. Unfortunately for the defendants, the effective date of the

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amended statute was January 6, 2012, and the statute is not retroactive. Congress provided that
the amended statute applies 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.” Pub. L. No. 112-63 § 205, 125 Stat. 758, 764-65 (2011). The “first-served
defendant rule” that applied in this circuit prior to the Clarification Act thus governs this lawsuit
and renders the defendants’ removal untimely and therefore defective.
Hologic argues that the thirty-day removal window is not relevant where the federal law
vests exclusive jurisdiction in the federal courts. Citing an out-of-circuit district court case, the
defendant asserts that “[i]n the absence of a statutory provision to the contrary, 28 U.S.C. § 1331
confers on district courts exclusive jurisdiction to review any reviewable action of a federal
agency.” Duke Energy Field Servs. Assets, LLC v. Fed. Energy Regulatory Comm’n, 15 F. Supp.
2d 150, 155 (D.D.C. 2001) (quoting III Kenneth Culp Davis and Richard J. Pierce, Jr.,
Administrative Law Treatise § 18.2 at 165 (3d ed. 1994)). This court, however, is unconvinced
that it has exclusive jurisdiction of the claims as they are asserted in the plaintiff’s complaint.
The court’s reading of the second amended complaint does not reveal a claim requiring direct
review of a federal agency action. Plaintiff asserts that she has identified Hologic’s alleged
violation of federal regulations, not as a claim arising under federal law, but rather as evidentiary
support for her state law claims.
At any rate, while it may ultimately be determined that the claims asserted against
Hologic are subject to federal preemption, this court finds that the state court should make that
determination. The court therefore declines to address Hologic’s motion to dismiss based on
federal preemption. In Frith v. BIC Corp., Civ. Ac. No. 3:98CV280BN, 15-16, 20-21 (S.D.

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Miss. 1998), Judge William H. Barbour, Jr., determined that while the plaintiffs’ claims against
the defendant were preempted by federal law, the federal court could not enforce federal
preemption because it lacked removal jurisdiction, as a necessary party had failed to join in the
removal petition. See also Frith v. BIC Corp., 863 So. 2d 960, 961 (Miss. 2004).
The court finds that the defendants have not complied with the requirements of the
removal statute as it stood at the time this action was commenced. Because any doubts about the
propriety of removal are construed in favor of remand and against removal,1 the court finds that
the case must be remanded to the state court.
Conclusion
For the foregoing reasons, the court finds that the plaintiff’s motion to remand is well
taken and should be granted. A separate order in accord with this opinion shall issue this day.
This, the 30th day of September, 2013

/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

1

See, e.g., Manguno v. Prudential Property and Casualty Ins. Co., 276 F.3d 720, 723 (5th
Cir. 2002).
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