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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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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

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Before the court is Boston Scientific Corporation’s (“Boston

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Scientific”) motion to stay all proceedings pending transfer to the

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United States District Court for the Southern District of West

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Virginia as part of In re: Boston Scientific Corp., Pelvic Repair

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System Prods. Liab. Litig., MDL No. 2326.

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2017, the Clerk of the Panel determined that this action is not

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appropriate for inclusion in the MDL.

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Boston Scientific Corporation’s motion to stay all proceedings pending

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transfer to MDL (ECF No. 5) is denied.
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(ECF No. 5).

(ECF No. 7).

On March 14,

Accordingly,

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Also before the court is plaintiffs’ motion to remand.

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8).

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(ECF No.

replied (ECF No. 15).

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Boston Scientific opposed the motion (ECF No. 13) and plaintiffs

Section

1332

provides

a

United

States

district

court

with

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original jurisdiction over “all civil actions where the matter in

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controversy exceeds the sum or value of $75,000, exclusive of interest

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and costs, and is between . . . citizens of different States.”

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U.S.C. § 1332.

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brought in a State court of which the district courts of the United

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States have original jurisdiction may be removed by the defendant or

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defendants, to the district court of the United States for the

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district and division embracing the place where such action is

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pending.”

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time before the final judgment it appears that the district court

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lacks subject matter jurisdiction, the case shall be remanded.”

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U.S.C. § 1447(c) .

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Section 1441(a) provides that “any civil action

28 U.S.C. § 1441(a).

Section 1447(c) provides, “If at any

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“Federal jurisdiction must be rejected if there is any doubt as

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to the right of removal in the first instance.”

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980 F.2d 564, 566 (9th Cir. 1992).

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state court and then removed, there exists a “strong presumption”

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against removal jurisdiction such that the defendant bears the burden

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of establishing that removal is proper.

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uncontested

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defendants: Dr. Vickie L. Tippette, Dr. Myron W. Bethel, and Renown

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Regional Medical Center (“Healthcare Provider Defendants”). (See ECF

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No. 1-1 (Complaint) at ¶¶ I, IV, and V).

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removed this case on March 8, 2017, based on diversity of citizenship

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(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

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misjoinder (ECF No. 13).

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that the court sever and remand the claims against the Healthcare

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Provider Defendants to state court pursuant to Rule 21.

Boston Scientific alternatively requests

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Pursuant to Federal Rule of Civil Procedure 20, permissive

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joinder among defendants must meet two specific requirements: (1) the

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right to relief is asserted against them jointly, severally, or in the

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alternative with respect to or arising out of the same transaction,

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occurrence, or series of transactions or occurrences; and (2) a

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question of law or fact is common to all defendants must arise in the

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action.

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that Rule 20 . . . regarding permissive joinder is to be construed

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liberally in order to promote trial convenience and to expedite the

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final

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lawsuits.”

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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,

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Rule 21 provides that the court may, “on just terms, add or drop

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a party” from an action or “sever any claim against a party.” “If the

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test for permissive joinder [under Rule 20] is not satisfied, a court,

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in its discretion, may sever the misjoined parties, so long as no

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substantial right will be prejudiced by the severance.”

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Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997).

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Coughlin v.

Boston Scientific argues that neither prong of Rule 20(a)(2) is

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met in this case.

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liability claims against it are distinct from the medical negligence

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claims against the Healthcare Provider Defendants, requiring different

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facts and evidence.

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against it and the Healthcare Provider Defendants are factually

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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

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1

Scientific would not be a basis for liability as to the Healthcare

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Provider Defendants.

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The court finds that for the purposes of remand, plaintiffs’

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claims

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Defendants

are

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Plaintiffs

allege

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malfunctioned due to a design or a manufacturing defect, and in breach

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of all warranties, express and implied, or defendants TIPPETTE and

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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

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utilize the device, which led to its malfunction.”

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¶ XI). These acts and omissions form the basis for Plaintiffs’ claims

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and combine to cause a single injury in this case.

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against the defendants relate to the same transaction or occurrence

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sufficient to satisfy Rule 20(a).

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claims against Boston Scientific and the Health Care Providers share

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questions of fact.

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caused a single injury and seek to recover the same damages from all

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defendants.

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(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

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prejudiced

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efficiency.

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proceedings (ECF No. 5) is denied.

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No. 8) is granted.

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consider Boston Scientific’s motion to dismiss (ECF No. 10).

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. . .

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. . .

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. . .

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. . .

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

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This case is remanded to the District Court of the State of

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Nevada in and for the County of Washoe for all further proceedings.

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Each party shall bear its own costs and attorney’s fees incurred as

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a result of the removal.

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this order of remand to the clerk of the state court and shall

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administratively close file no. 3:17-cv-00149-HDM-VPC.

The clerk shall mail a certified copy of

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IT IS SO ORDERED.

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DATED: This 13th day of April, 2017.

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____________________________
UNITED STATES DISTRICT JUDGE

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