Abbott et al v. Boston Scientific Corporation et al

Filing 19

ORDER denying ECF No. 5 Motion to Stay All Proceedings; granting ECF No. 8 Motion to Remand; declining to consider ECF No. 10 Motion to Dismiss; remanding case to state court (certified copies of order and docket sheet sent to Second Judicial 4/14/2017). Signed by Judge Howard D. McKibben on 4/13/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 17 18 19 CARMEN ABBOTT and THOMAS ABBOTT, ) ) Plaintiffs, ) ) ) ) vs. ) ) BOSTON SCIENTIFIC CORPORATION, ) RENOWN REGIONAL MEDICAL CENTER, ) VICKIE L. TIPPETTE, M.D., MYRON ) W. BETHEL, M.D., and JOHN DOES 1- ) XX, inclusive, ) ) ) Defendants. ) _________________________________ ) 3:17-cv-00149-HDM-VPC ORDER 20 Before the court is Boston Scientific Corporation’s (“Boston 21 Scientific”) motion to stay all proceedings pending transfer to the 22 United States District Court for the Southern District of West 23 Virginia as part of In re: Boston Scientific Corp., Pelvic Repair 24 System Prods. Liab. Litig., MDL No. 2326. 25 2017, the Clerk of the Panel determined that this action is not 26 appropriate for inclusion in the MDL. 27 Boston Scientific Corporation’s motion to stay all proceedings pending 28 transfer to MDL (ECF No. 5) is denied. 1 (ECF No. 5). (ECF No. 7). On March 14, Accordingly, 1 Also before the court is plaintiffs’ motion to remand. 2 8). 3 (ECF No. replied (ECF No. 15). 4 Boston Scientific opposed the motion (ECF No. 13) and plaintiffs Section 1332 provides a United States district court with 5 original jurisdiction over “all civil actions where the matter in 6 controversy exceeds the sum or value of $75,000, exclusive of interest 7 and costs, and is between . . . citizens of different States.” 8 U.S.C. § 1332. 9 brought in a State court of which the district courts of the United 10 States have original jurisdiction may be removed by the defendant or 11 defendants, to the district court of the United States for the 12 district and division embracing the place where such action is 13 pending.” 14 time before the final judgment it appears that the district court 15 lacks subject matter jurisdiction, the case shall be remanded.” 16 U.S.C. § 1447(c) . 17 28 Section 1441(a) provides that “any civil action 28 U.S.C. § 1441(a). Section 1447(c) provides, “If at any 28 “Federal jurisdiction must be rejected if there is any doubt as 18 to the right of removal in the first instance.” 19 980 F.2d 564, 566 (9th Cir. 1992). 20 state court and then removed, there exists a “strong presumption” 21 against removal jurisdiction such that the defendant bears the burden 22 of establishing that removal is proper. 23 uncontested 24 defendants: Dr. Vickie L. Tippette, Dr. Myron W. Bethel, and Renown 25 Regional Medical Center (“Healthcare Provider Defendants”). (See ECF 26 No. 1-1 (Complaint) at ¶¶ I, IV, and V). 27 removed this case on March 8, 2017, based on diversity of citizenship 28 (ECF No.1) that and plaintiffs’ now opposes In suits originally brought in complaint remand 2 Gaus v. Miles, Inc., on Id. at 566-67. names three It is non-diverse Defendant Boston Scientific the basis of fraudulent 1 misjoinder (ECF No. 13). 2 that the court sever and remand the claims against the Healthcare 3 Provider Defendants to state court pursuant to Rule 21. Boston Scientific alternatively requests 4 Pursuant to Federal Rule of Civil Procedure 20, permissive 5 joinder among defendants must meet two specific requirements: (1) the 6 right to relief is asserted against them jointly, severally, or in the 7 alternative with respect to or arising out of the same transaction, 8 occurrence, or series of transactions or occurrences; and (2) a 9 question of law or fact is common to all defendants must arise in the 10 action. 11 that Rule 20 . . . regarding permissive joinder is to be construed 12 liberally in order to promote trial convenience and to expedite the 13 final 14 lawsuits.” 15 558 F.2d 914, 917 (9th Cir. 1977). Fed. R. Civ. P. 20(a)(2). determination of disputes, Courts “start with the premise thereby preventing multiple League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 16 Rule 21 provides that the court may, “on just terms, add or drop 17 a party” from an action or “sever any claim against a party.” “If the 18 test for permissive joinder [under Rule 20] is not satisfied, a court, 19 in its discretion, may sever the misjoined parties, so long as no 20 substantial right will be prejudiced by the severance.” 21 Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). 22 Coughlin v. Boston Scientific argues that neither prong of Rule 20(a)(2) is 23 met in this case. 24 liability claims against it are distinct from the medical negligence 25 claims against the Healthcare Provider Defendants, requiring different 26 facts and evidence. 27 against it and the Healthcare Provider Defendants are factually 28 distinct and that any liability that may be found against Boston First, Boston Scientific asserts that the product Second, Boston Scientific argues that the claims 3 1 Scientific would not be a basis for liability as to the Healthcare 2 Provider Defendants. 3 The court finds that for the purposes of remand, plaintiffs’ 4 claims 5 Defendants are 6 Plaintiffs allege 7 malfunctioned due to a design or a manufacturing defect, and in breach 8 of all warranties, express and implied, or defendants TIPPETTE and 9 BETHEL negligently and below standards of care failed to properly against Boston Scientific sufficient that to and satisfy during the the the surgery, Healthcare joinder “the Provider requirements. PRODUCT either 10 utilize the device, which led to its malfunction.” 11 ¶ XI). These acts and omissions form the basis for Plaintiffs’ claims 12 and combine to cause a single injury in this case. 13 against the defendants relate to the same transaction or occurrence 14 sufficient to satisfy Rule 20(a). 15 claims against Boston Scientific and the Health Care Providers share 16 questions of fact. 17 caused a single injury and seek to recover the same damages from all 18 defendants. 19 (ECF No. 1-1 at Thus, the claims The court also finds that the Plaintiffs allege that the defendants’ conduct The court declines to sever under Rule 21 as plaintiffs would be 20 prejudiced 21 efficiency. 22 proceedings (ECF No. 5) is denied. 23 No. 8) is granted. 24 consider Boston Scientific’s motion to dismiss (ECF No. 10). 25 . . . 26 . . . 27 . . . 28 . . . by the severance and it would not promote judicial Accordingly, Boston Scientific’s motion to stay all Plaintiffs’ motion to remand (ECF Having remanded this case, the court declines to 4 1 This case is remanded to the District Court of the State of 2 Nevada in and for the County of Washoe for all further proceedings. 3 Each party shall bear its own costs and attorney’s fees incurred as 4 a result of the removal. 5 this order of remand to the clerk of the state court and shall 6 administratively close file no. 3:17-cv-00149-HDM-VPC. The clerk shall mail a certified copy of 7 IT IS SO ORDERED. 8 DATED: This 13th day of April, 2017. 9 10 ____________________________ UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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