Weber et al v. Renovo Solutions LLC
REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS DENYING 4 MOTION to Remand to State Court. Objections to R&R due by 8/17/2017. Signed by Magistrate Judge Kimberly A. Jolson on 8/3/2017. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
KYRA WEBER, et al.,
Civil Action 2:17-cv-572
Judge George C. Smith
Magistrate Judge Jolson
RENOVO SOLUTIONS, LLC,
REPORT AND RECOMMENDATION
This case is before the Court on Plaintiffs’ Motion to Remand. (Doc. 4). For the reasons
set forth below, the Court RECOMMENDS that the Motion to Remand be DENIED.
Plaintiffs originally filed this matter in the Court of Common Pleas for Fairfield County,
Ohio. (See Doc. 2); Kyra Weber, et al. v. Renovo Solutions, LLC, Case No. 2017 CV 430. The
Complaint, filed on June 1, 2017, was filed by co-executors of the estate of Wanda Rose Anders,
who died on June 2, 2015 from complications of an epinephrine overdose. (Doc. 2, ¶¶ 1, 3).
Ms. Anders was transferred to an intensive care unit at Fairfield Medical Center
following a surgical procedure on May 22, 2015, where Plaintiffs allege that she “negligently
received a bolus of epinephrine by a nurse (Kaitlin Angle RN) …, causing arrhythmia,
hemodynamic instability, and stroke.” (Id., ¶¶ 1, 3–5). The epinephrine was delivered to Ms.
Anders through an IV line connected to a pump manufactured and sold by CareFusion 303, Inc.
(“CareFusion”). (Id., ¶ 6). Plaintiffs explain that “[t]he accidental epinephrine bolus occurred as
Nurse Angle was removing the epinephrine bag from an Alaris IV pump.
negligently failed to utilize the ‘roller clamp’ on the IV line, which is designed to prevent
accidental infusions like this.” (Id., ¶¶ 7–8).
The Complaint, which claims wrongful death, notes that Plaintiffs filed another lawsuit
before this one (“Anders I”), on January 29, 2016. (Id., ¶ 9); see Kyra Weber, et al. v. Fairfield
Med. Ctr., Case No. 2016 CV 00049. That lawsuit, filed against Fairfield Medical Center and
CareFusion, also concerns Ms. Anders’s death. (Id.). Anders I remains pending in the Fairfield
County Court of Common Pleas.
A discussion of Anders I is necessary to resolve Plaintiff’s Motion. During Nurse
Angle’s deposition in Anders I on October 7, 2016, she testified that the entire bag of
epinephrine infused when the automatic “safety clamp fitment” improperly failed to occlude the
IV. (Doc. 4 at 2). Based on that testimony, Plaintiffs requested leave to file an amended
complaint adding CareFusion, the IV pump and IV line manufacturer, as a defendant. (Id. at 2–
3) (footnote omitted). The Court granted Plaintiffs leave, and Plaintiffs filed the amended
complaint on December 2, 2016. (Id. at 3).
Discovery in Anders I continued. On March 9, 2017, an expert testing the IV pump used
in the infusion discovered that Renovo Solutions (“Renovo”), which operates Fairfield Medical
Center’s biomedical engineering department, had used an inferior part to replace the “sear” in
January 2015. (Id.). Based on this information, CareFusion sought, and was granted, leave to
file a third-party claim in Anders I against Renovo. (Id.). CareFusion filed the third-party
complaint on May 31, 2017. (Id.).
Plaintiffs state that, with substantiation in Anders I “that Renovo used an incompatible,
unauthorized part that caused the IV pump to fail, it was incumbent on [them] to assert a claim
against Renovo for Ms. Anders’ death.” (Id.) (footnote omitted). However, Plaintiffs’ counsel
believed that “the wrongful death statute of limitations was arguably about to expire,” so counsel
chose what they “thought” was “the safer course”—“to file a separate action against Renovo,
then consolidate the cases into one.” (Id. at 3–4) (footnotes omitted). Counsel explains:
The reason we brought a separate action against Renovo is that the two year
statute of limitations would arguably expire on June 2, 2017. Rather than attempt
to amend the complaint again, and uncertain that we could obtain leave of court
before the statute of limitations expired, we filed a separate case against Renovo.
It was our intention to consolidate the cases when Renovo made its appearance….
(Id. at 4) (footnote omitted). However, things did not go as Plaintiffs planned. Renovo “filed the
removal simultaneously with its answer,” under this Court’s diversity jurisdiction. (Id.; see Doc.
The Notice of Removal states that complete diversity exists because Plaintiff Kyra Weber
is a citizen of Indiana, Plaintiff Karen D. Weis is a citizen of Ohio and/or Indiana, and Renovo is
a citizen of California. (Doc. 1, ¶¶ 3–5). Defendant also alleges that the matter in controversy
exceeds the sum of $75,000, exclusive of interest and costs. (Id., ¶ 6).
Plaintiffs filed the Motion to Remand on July 12, 2017. (Doc. 4). In the Motion,
Plaintiffs seek remand based on their position that (1) this case and Anders I are derived from the
same facts and (2) because Renovo, the Defendant here, is already a third-party defendant in
Anders I. (Id.). Thus, Plaintiffs argue that these cases should be consolidated for discovery,
trial, and disposition. (Id.). Plaintiffs also claim that “[t]o permit the federal case to proceed
apart from the state case would be uncoordinated and wasteful.” (Id.).
Defendant disagrees and argues that “Plaintiffs’ arguments ostensibly raise the rarely
used Colorado River Abstention Doctrine, which allows the district court to decline jurisdiction
in exceptional circumstances.” (Doc. 6 at 1). Defendant claims that the doctrine is inapplicable
and Plaintiffs have waived any argument that it applies. (Id.). Consequently, Defendant urges
this Court to deny Plaintiffs’ Motion. (Id.).
In reply, Plaintiffs insist that they are not invoking the Colorado River Abstention
Doctrine. (Doc. 8 at 1). Plaintiffs define the relevant issue as “whether this case should be
remanded because it is essentially part and parcel of an already existing state action involving the
same parties and same issues.” (Id.). Plaintiffs rely on case law from the United States Court of
Appeals for the Seventh Circuit to support their position. (Id. at 5–6).
Having been briefed fully, this matter is now ripe for resolution.
The basis for removing a state court case to federal court “must be disclosed upon the
face of the complaint, unaided by the answer or by the petition for removal.” Gully v. First Nat’l
Bank, 299 U.S. 109, 113 (1936); see also Powell v. Wal-Mart Stores, Inc., No. 14-155-HRW,
2015 WL 2063966, at *3 (E.D. Ky. Apr. 30, 2015) (noting that “jurisdiction is determined at the
time of removal”). Thus, the Court may not consider defenses in deciding if a case may be
removed. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987); Loftis v. United Parcel
Serv., Inc., 342 F.3d 509, 515 (6th Cir. 2003). Because removing a case interferes with the state
court’s jurisdiction, removal statutes are construed narrowly. See Long v. Bando Mfg. Co. of
Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000) (stating “removal statutes are to be narrowly
construed” because “they implicate federalism concerns”).
The requirements for federal jurisdiction based on diversity of citizenship are set forth in
28 U.S.C. § 1332(a). Diversity is satisfied if no plaintiff and no defendant are citizens of the
same state, and the amount in controversy is $75,000 or greater. See 3LI Consultant Grp. v.
Catholic Health Partners, No. 1:15-cv-455, 2016 WL 246202, at *1 (S.D. Ohio Jan. 21, 2016).
Whether Plaintiffs will prevail on their claims is irrelevant for the purposes of determining the
amount in controversy. See Garza v. Bettcher Indus., Inc., 752 F. Supp. 753, 763 (E.D. Mich.
1990). It is sufficient if a fair reading of the Complaint demonstrates that, if Plaintiffs are
successful, it is more likely than not that their damages will exceed the required amount. Id.
Plaintiffs do not argue that the requirements for federal jurisdiction based on diversity of
citizenship are unsatisfied. (See generally Doc. 4). Nor do Plaintiffs ask this Court to abstain
from hearing this case under any abstention doctrine. (See Doc. 8 at 1). Instead, Plaintiffs rely
on Seventh Circuit case law to argue that remand is proper because this case is an ancillary or
supplementary proceeding inextricably intertwined with Anders I. (Doc. 4 at 7). At base,
Plaintiffs’ argument is based on convenience and efficiency because Renovo is a third-party
defendant in Anders I and, in their view, “the evidence regarding Renovo’s negligence [and] the
witnesses are the same.” (Id.).
But Plaintiffs are in this Court as a result of their own choices. They chose to file this
separate case “to avoid the foreseeable argument based on statute of limitations” and because
they “had very little time to seek leave to amend the complaint again….” (Id.). To them, it “was
safer to simply file a separate claim.” (Id.).
In doing so, Plaintiffs made a number of assumptions. They assumed that if they had
sought leave to amend to add a claim against Renovo in Anders I, Judge Berens would have
granted it (although perhaps not in time under the statute of limitations). More relevant here,
Plaintiffs assumed that, when they filed this case, Judge Berens would consolidate it with Anders
I. Plaintiffs ask this Court to join them in making the latter assumption and remand this case
based upon that contingency.
It is not a given that Judge Berens would allow consolidation, and this Court may not
remand based on speculation that he would do so. Rather, this Court’s threshold inquiry is more
limited—the question is whether the Court has subject-matter jurisdiction over this matter. See,
e.g., Hrivnak v. NCO Portfolio Mgmt., Inc., 723 F. Supp. 2d 1020, 1022 (N.D. Ohio 2010)
(stating that “[t]he threshold issue before the Court [in considering a motion to remand] is
whether subject matter jurisdiction is proper”).
The answer to that question is yes.
requirements for diversity jurisdiction are satisfied and this matter was properly removed to this
Court. See 3LI Consultant Grp., No. 1:15-cv-455, 2016 WL 246202, at *1. That consolidation,
if it were to occur, “would defeat complete diversity” or that “Fairfield County,” in Plaintiffs’
opinion, “is the proper and best forum to manage the entire case” do not justify remand where
jurisdiction is proper. (Doc. 4 at 7); see Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716
(1996) (“We have often acknowledged that federal courts have a strict duty to exercise the
jurisdiction that is conferred upon them by Congress.”).
Finally, this is not a situation where, as Plaintiffs allege, Defendant has removed part of a
case. (Doc. 8 at 2). When Plaintiffs opted to file a separate action, they did just that—created an
entirely new case that is not duplicative of Anders I.
Because 28 U.S.C. § 1332(a)’s
requirements are satisfied, it was Defendant’s right to remove that separate case based on
diversity of citizenship. Stated simply, this Court has subject-matter jurisdiction over this case,
and Plaintiffs have failed to set forth any law or argument that deprives this Court of that
Based upon the foregoing, the Court RECOMMENDS that Plaintiffs’ Motion to
Remand be DENIED. (Doc. 4). Although not a basis for remand, the Court understands that it
may be more convenient for Plaintiffs to litigate this case in the Fairfield County Court of
Common Pleas. Thus, this Court shall make a concerted effort to streamline discovery in this
case in light of Anders I.
Based upon the foregoing, the Court RECOMMENDS that Plaintiffs’ Motion to
Remand be DENIED. (Doc. 4).
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of this Report, file and serve on all parties written objections to those specific proposed
findings or recommendations to which objection is made, together with supporting authority for
the objection(s). A judge of this Court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is made. Upon
proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: August 3, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?