Harrison et al v. Wright Medical Technology, Inc. et al
Filing
18
ORDER granting in part and denying in part 7 Plaintiffs Motion to Remand or Alternatively, to Dismiss without Prejudice. Signed by Judge Jon Phipps McCalla on 5/11/2015. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CHRISTOPHER HARRISON and
LACRISHA HARRISON,
Plaintiffs,
v.
WRIGHT MEDICAL TECHNOLOGY,
INC. and WRIGHT MEDICAL GROUP,
INC.,
Defendants.
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No. 2:14-cv-02739-JPM-cgc
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO
REMAND OR ALTERNATIVELY, TO DISMISS WITHOUT PREJUDICE
Before the Court is Plaintiffs’ Motion to Remand or
Alternatively, to Dismiss without Prejudice, filed October 17,
2014.
(ECF No. 7.)
Defendants Wright Medical Technology Inc.
and Wright Medical Group Inc. (collectively “Wright Medical”)
timely responded in opposition to the Motion to Remand on
November 3, 2014.
(ECF No. 11.)
For the reasons stated below,
Plaintiffs’ Motion to Remand or Alternatively, to Dismiss
without Prejudice, is GRANTED IN PART and DENIED IN PART.
I.
BACKGROUND
A.
Factual Background
This case arises out of an allegedly defective hip
replacement device (known as the PROFEMUR Total Hip System and
PROFEMUR Neck) manufactured by Wright Medical and implanted in
1
Plaintiff Christopher Harrison on May 21, 2009.
68, ECF No. 1-1.)
(Compl. ¶¶ 1,
The complaint alleges that Christopher
Harrison was an appropriate patient to be implanted with the hip
system.
(Id. ¶ 69.)
The complaint also alleged that
Christopher Harrison used the device in a normal and expected
manner after the device was implanted.
(Id.)
On March 25,
2014, the hip replacement device broke into two pieces while
Christopher Harris was standing.
(Id. ¶¶ 71–72.)
Two days
later, Christopher Harris had his hip replacement device
removed.
(Id. ¶ 73.)
Plaintiffs Christopher and LaCrisha Harrison are married
and reside in McAlester, Oklahoma.
(Id. ¶¶ 3, 220.)
The hip
system was both implanted and removed from Mr. Harris in
Oklahoma.
(Id. ¶¶ 68, 73.)
Wright Medical Technology Inc. and
Wright Medical Group Inc. are Delaware corporations with
principal places of business in Memphis, Tennessee.
(Id. ¶¶ 4–
5.)
B.
Procedural Background
Plaintiffs filed a Complaint against Wright Medical in
Shelby County Tennessee Circuit Court on September 18, 2014.
(Compl. at 1.)
The Complaint alleges that Wright Medical “knew
or received notice of clinical failures” of its hip system
device and failed to report this information to the FDA.
¶¶ 34–35.)
(Id.
The Complaint also alleges that the hip system was
2
not tested in design and development at the level of forces that
the hip system was known to encounter in the normal activities
of daily living.
(Id. ¶ 78.)
Plaintiffs’ Complaint asserts
nine causes of action, including strict products liability,
negligence, and loss of consortium.
(Id. ¶¶ 35–56.)
Wright Medical filed a Notice of Removal from the Circuit
Court for the County of Shelby, Tennessee, to the United States
District Court for the Western District of Tennessee, Western
Division, on September 19, 2014.
(ECF No. 1.)
Wright Medical
asserts that removal was timely because Wright Medical was not
served with the Summons and Complaint at the time Wright Medical
filed the Notice of Removal.
(Id. ¶ 9.)
Plaintiffs filed a
Motion to Remand or, Alternatively, to Dismiss without Prejudice
on October 17, 2014.
(ECF No. 7.)
The Plaintiffs assert that,
under the forum defendant rule, Wright Medical could not remove
the case from Tennessee state court to the United States
District Court for the Western District of Tennessee.
2.)
(Id. at
The Plaintiffs also assert that, if the Motion to Remand is
not granted, the Court should dismiss the complaint without
prejudice to allow the Plaintiffs to refile in their forum of
choice.
(Id. at 3.)
Wright Medical filed a Response in
Opposition to Plaintiffs’ Motion to Remand or Dismiss on
November 3, 2014.
(ECF No. 11.)
Wright Medical asserts in its
Response that the plain language of the removal statute, 28
3
U.S.C. § 1441, allows a forum defendant to remove a case to
federal court before being “properly joined and served.”
at 3.)
(Id.
Wright Medical also asserts that dismissing the
Complaint and allowing Plaintiffs to refile their complaint
would encourage forum shopping.
II.
(Id. at 8.)
Legal Standard
A defendant may remove to federal district court “any civil
action brought in a State court of which the district courts of
the United States have original jurisdiction . . . .”
§ 1441(a).
28 U.S.C.
District courts have original jurisdiction in civil
actions where “the matter in controversy exceeds the sum or
value of $75,000 . . . and is between . . . citizens of
different States.”
28 U.S.C. § 1332(a).
“The party seeking
removal bears the burden of demonstrating that the district
court has original jurisdiction.”
Eastman v. Marine Mech.
Corp., 438 F.3d 544, 549 (6th Cir. 2006) (citing Conrad v.
Robinson, 871 F.2d 612, 614 (6th Cir. 1989)).
“[B]ecause they implicate federalism concerns, removal
statutes are to be narrowly construed.”
Long v. Bando Mfg. of
Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000) (citing Shamrock
Oil & Gas, 313 U.S. at 108–09).
The
power
reserved
to
the
states
under
the
Constitution to provide for the determination of
controversies in their courts, may be restricted only
by the action of Congress in conformity to the
Judiciary Articles of the Constitution. ‘Due regard
4
for the rightful independence of state governments,
which should actuate federal courts, requires that
they scrupulously confine their own jurisdiction to
the precise limits which the statute has defined’.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941).
Consequently, “all doubts as to the propriety of removal are
resolved in favor of remand.”
Smith v. Nationwide Prop. & Cas.
Ins. Co., 505 F.3d 401, 405 (6th Cir. 2007) (internal quotation
marks omitted) abrogated on other grounds by Hall Street
Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008).
One of the limitations Congress has placed on a party’s
ability to remove a case from state court to federal court based
on diversity jurisdiction is codified in 28 U.S.C. § 1441(b)(2):
“A civil action otherwise removable solely on the basis of the
jurisdiction under [28 U.S.C. § 1332(a)] may not be removed if
any of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.”
The Supreme Court has explained that “[a]n in-state
plaintiff may invoke diversity jurisdiction, but § 1441(b) bars
removal on the basis of diversity if any party in interest
properly joined and served as a defendant is a citizen of the
State in which the action is brought.”
Lincoln Prop. Co. v.
Roche, 546 U.S. 81, 90 (2005) (internal quotation marks
omitted).
The statutes that govern diversity jurisdiction of
the federal courts and removal of state court actions strike a
5
“delicate balance between the competing forum preferences of
plaintiffs and defendants.”
Hawkins v. Cottrell, Inc., 785 F.
Supp. 2d 1361, 1372 (N.D. Ga. 2011).
III. Analysis
The issue raised in the instant case is whether Wright
Medical properly removed the state court action to federal court
based on diversity jurisdiction.
The existence of complete
diversity between the parties is not in question.
Plaintiffs
Christopher Harrison and LaCrisha Harrison are citizens of
Oklahoma and Defendants Wright Medical Technology Inc. and
Wright Medical Group Inc. are Delaware corporations with their
principal places of business in Tennessee.
The parties also do
not dispute the fact that Wright Medical would not have been
able to remove the case to federal court had Plaintiffs
completed service of process prior to Wright Medical’s filing
for removal.
Consequently, the Court is tasked with determining
the purely legal question of whether Wright Medical’s removal
prior to receiving service of process renders removal proper in
light of the prohibitory language in 28 U.S.C. § 1441(b)(2).
Section 1441(b)(2) prohibits removal “if any of the parties
in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.”
§ 1441(b)(2) (emphasis added).
A nationwide split exists among
federal district courts as to whether a forum defendant that has
6
not yet been “properly joined and served” can properly remove a
state court action on diversity grounds and avoid the removal
bar under § 1441(b)(2).
Similar to the national landscape, a
split exists among the district courts in the Sixth Circuit and
the Western District of Tennessee.
In Linder v. Medtronic,
Inc., the District Court denied remand of a case where a nonforum defendant removed a state court action on diversity
grounds prior to completion of service of process on the forum
defendant.
No. 13-2346-STA-CGC, 2013 WL 5486770 (W.D. Tenn.
Sept. 30, 2013).
The District Court reasoned that “[s]ervice of
process is not a prerequisite to a defendant exercising its
right of removal.”
Id. at *2.
Focusing on the language
“properly joined and served as defendants,” the District Court
concluded that the plain language of § 1441(b)(2) did not bar
removal where the forum defendant had not yet been served.
Id.
In making its finding, the District Court also relied on a
footnote in a Court of Appeals opinion, which stated “[w]here
there is complete diversity of citizenship, . . . the inclusion
of an unserved resident defendant in the action does not defeat
removal under 28 U.S.C. § 1441(b).”
McCall v. Scott, 239 F.3d
808, 813 (6th Cir.) amended on denial of reh'g, 250 F.3d 997
(6th Cir. 2001)).
In Dooley v. Medtronic, Inc., a subsequent Western District
of Tennessee case, the District Court reached the opposite
7
conclusion and granted remand pursuant to § 1441(b)(2) where a
non-forum defendant removed a state court action prior to
completion of service of process on the forum defendant.
F.Supp.3d 973 (W.D. Tenn. 2014).
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In Dooley, the District Court
found persuasive the argument that a defendant’s removal prior
to receipt of service of process is “precisely the type of
tactics and gamesmanship the courts have addressed and have
found to be improper.”
Id. at 980.
Relying on the Supreme
Court’s opinion in Lincoln Property, 546 U.S. 81, the District
Court reasoned that “a defendant may remove a case to federal
court only when there is complete diversity of citizenship
‘between all named plaintiffs and all named defendants, and no
defendant is a citizen of the forum State.’”
Dooley, 39
F.Supp.3d at 978 (quoting Lincoln Property, 546 U.S. at 84.)
The District Court also found the reasoning in Ethington v. Gen.
Elec. Co., 575 F. Supp. 2d 855 (N.D. Ohio 2008) to be on point.
See Dooley, 39 F.Supp.3d at 978.
In Ethington, the District Court found that “Congress
intended the ‘joined and served’ part of the forum defendant
rule to prevent gamesmanship by plaintiffs, who might name an
in-state defendant against whom he or she does not have a valid
claim in a complaint filed in state court to defeat otherwise
permissible removal by the non-forum defendant(s).”
Supp. 2d at 861.
The Ethington Court concluded that
8
575 F.
[t]he tactics employed by defendants such as in the
instant case turn Congressional intent on its head by
allowing
defendants
to
employ
gamesmanship,
specifically by rushing to remove a newly filed state
court case before the plaintiff can perfect service on
anyone. Given that Congress intended the “properly
joined and served” language to prevent litigant
gamesmanship,
it
would
be
especially
absurd
to
interpret the same “joined and served” requirement to
actually condone a similar kind of gamesmanship from
defendants” in instances such as the case at bar.
575 F. Supp. 2d at 862 (internal quotation marks omitted).
Accordingly, the District Court in Ethington also remanded the
case to state court despite the plaintiffs’ failure to serve
process on the forum defendant prior to removal.
Id. at 864.
The parties’ arguments in the instant case generally track
the reasoning in the three cases discussed above.
Wright
Medical argues that the “‘the language of the statute is the
starting point for interpretation, and it should also be the
ending point if the plain meaning of that language is clear.”
(Id. (quoting United States v. Weiner, 518 F. App'x 358, 364
(6th Cir. 2013) (McCalla, J. Presiding by Designation)).)
Wright Medical asserts that the plain language of § 1441(b)(2)
is unambiguous and precludes removal only where a forum
defendant has been “joined and served.” (ECF No. 11 at 3.)
Wright Medical further asserts that “Plaintiffs’ argument reads
the ‘properly joined and served’ language out of the statute,
violating settled canons of statutory construction.”
6.)
(Id. at
Wright Medical also argues that, “Congress made significant
9
changes to the jurisdiction and venue statutes in the Federal
Courts Jurisdiction and Venue Clarification Act, yet, Congress
left unchanged the ‘properly joined and served’ language, and in
doing so, it intended for the plain language of the statute to
govern.”
(Id. at 6 (citing Munchel v. Wyeth, LLC, 2012 WL
4050072, CV-No. 12-906, at *4 (D. Del. Sept. 11, 2012)).)
Wright Medical further contends that removal in the instant
case is proper because removal protects Wright Medical from
Plaintiffs’ attempt at forum shopping by filing the instant
action in Tennessee.
(Id. at 2.)
Wright Medical asserts that
“all evidence regarding Plaintiffs’ alleged injuries, medical
care, treatment, use of the product at issue, and alleged
damages is found in Oklahoma.”
(Id.)
Wright Medical contends
that “[t]his case does not belong in Tennessee and had
Plaintiffs properly filed this case in Oklahoma where they
allege everything occurred, the parties would not be here before
this Court.”
(Id. at 8.)
Plaintiffs argue that removal of the instant case
contradicts the plain language of § 1441(b)(2) because “a
defendant may remove a case to federal court only when there is
complete diversity of citizenship ‘between all named plaintiffs
and all named defendants, and no defendant is a citizen of the
forum State.’”
(ECF No. 9 at 5 (quoting Dooley, 39 F.Supp.3d at
10
978).)
Plaintiffs assert that Wright Medical’s interpretation
of § 1441(b)(2)
would
produce
an
absurd
result,
encouraging
gamesmanship
and
contradicting
the
statute’s
purpose . . . [and] would “eviscerate the purpose of
the forum defendant rule” by creating “a procedural
anomaly whereby defendants can always avoid the
imposition of the forum defendant rule so long as they
monitor the state docket and remove the action to
federal
court
before
they
are
served
by
the
plaintiff.”
(ECF No. 9 at 9 (quoting Ethington, 575 F. Supp. 2d at 861).)
Plaintiffs argue that the instant case is distinguishable
from the other Sixth Circuit cases that have addressed this
issue.
Plaintiffs assert that the present case is the only
Sixth Circuit case that did not include non-forum defendants.
(ECF No. 9 at 7.)
Plaintiffs contend that “the use of ‘any’
when referring to ‘parties’ assumes that there is ‘one or more
party in interest that has been properly joined and served
already at the time of removal, among which may or may not be a
forum-state defendant.’”
(Id. at 7-8 (quoting FTS Int'l Servs.,
LLC v. Caldwell-Baker Co., No. 13-2039-JWL, 2013 WL 1305330, at
*2 (D. Kan. Mar. 27, 2013)).)
Plaintiffs further assert that
“use of the term ‘joined’ by the statute contemplates a
situation in which one defendant is jointed to another defendant
— ‘presumably an in-state defendant joined to an out-of-state
defendant.’”
(Id. at 8 (quoting Hawkins v. Cottrell, Inc., 785
F. Supp. 2d 1361, 1369 n.11 (N.D. Ga. 2011)).)
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Consequently,
Plaintiffs argue, § 1441(b)(2) “does not permit removal by unserved forum defendants in the absence of at least one served
non-forum defendant.”
(Id. at 8.)
Finally, Plaintiffs make the alternative argument that the
case should be dismissed without prejudice to “allow Plaintiffs
to re-file in their chosen forum and to serve Wright Medical
(via corporate officers, who are located in Memphis, in lieu of
their Registered Agent in Nashville) that same day, without any
notice to Wright Medical or its counsel until service.”
(ECF
No. 9 at 11.)
The Court agrees with Plaintiffs.
As an initial matter,
the Court finds that § 1441(b)(2) is ambiguous with regard to
what should happen when a forum defendant removes a state court
action on diversity grounds prior to completion of service of
process.
In the Court’s opinion, § 1441(b)(2) simply fails to
expressly address this set of circumstances.
In resolving the
ambiguity of § 1441(b)(2), the Court joins the Dooley Court and
the Ethington Court in the finding that an interpretation that
permits removal by a forum defendant simply because service of
process has not been formally completed at the time of removal
is an incorrect result given the clear intent of Congress in
enacting § 1441(b)(2) to reduce gamesmanship on the part of
plaintiffs.
See Ethington, 575 F. Supp. 2d at 862.
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Furthermore, Wright Medical’s assertion that Plaintiffs’
interpretation reads the language “properly joined and served”
out of the statute is inaccurate.
Congress’ intent in including
the “properly joined and served language” was to prevent
gamesmanship on the part of a plaintiff attempting to block an
otherwise proper removal of a state court action “by joining as
a defendant a resident party against whom it does not intend to
proceed, and whom it does not even serve.”
Stan Winston
Creatures, Inc. v. Toys “R” Us, Inc., 314 F. Supp. 2d 177, 181
(S.D.N.Y. 2003).
Consequently, the “properly joined and served”
language continues to have significance in Plaintiffs’
interpretation of § 1441(b)(2).
Wright Medical’s argument that it should be allowed to
remove the instant case as a countermeasure to Plaintiffs’ forum
shopping is similarly misplaced.
“The forum defendant rule
generally prohibits defendants from removing a case to federal
district court when the concerns that underpin diversity
jurisdiction . . . are not present . . . .”
Ethington, 575
F.Supp.2d at 858.
Diversity jurisdiction is founded on assurance to nonresident litigants of courts free from susceptibility
to
potential
local
bias.
The
Framers
of
the
Constitution,
according
to
Marshall,
entertained
‘apprehensions’ lest distant suitors be subjected to
local bias in State courts, or, at least, viewed with
‘indulgence the possible fears and apprehensions’ of
such suitors.
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Guar. Trust Co. of N.Y. v. York, 326 U.S. 99, 111-12 (1945)
(quoting Bank of the United States v. Deveaux, 5 Cranch 61, 87,
3 L.Ed. 38).
Wright Medical’s argument that Plaintiffs’ choice
of forum is an act of forum shopping because “all evidence
regarding Plaintiffs’ alleged injuries, medical care, treatment,
use of the product at issue, and alleged damages is found in
Oklahoma” is an argument better suited for a forum non
conveniens challenge.
Considerations of accessibility of the
evidence and the burden on witnesses are distinct from the risk
of local bias.
Wright Medical has not set forth an argument
that it or any forum defendant requires protection from local
bias, nor can such an argument be found in the relevant case
law.
Put simply, none of the laws regarding federal diversity
jurisdiction contemplate protecting a defendant who is a citizen
of the forum state from the local bias of its own state.
Regarding existing Sixth Circuit precedent, the Court is
not bound by dicta in McCall, 239 F.3d at 813 n.2 or the
district court opinions.
Moreover, the facts in McCall are
distinguishable from the facts in this case.
In McCall, the
derivative shareholder actions brought against non-forum
defendants were already in federal district court at the time of
removal by the forum defendant.
See id. at 813 n.1.
Those
circumstances differ from the instant case where Plaintiffs sued
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in state court, all of the defendants are forum defendants, and
no consolidation of cases in federal court has taken place.
Having given due consideration to the concerns of
federalism and “the rightful independence of state governments,”
the Court adopts a construction of § 1441(b)(2) that favors
remand in the face of significant doubts as to the propriety of
removal by an unserved forum defendant.
See Shamrock Oil & Gas,
313 U.S. at 108-09; Smith, 505 F.3d at 405.
Specifically, the
Court holds that a forum defendant may not avoid the removal bar
under § 1441(b)(2) by simply rushing to file for removal prior
to completion of service of process.
The Court’s interpretation
of § 1441(b)(2) is consistent with the Court’s mandate to
narrowly construe its jurisdiction over diverse parties.
See
Shamrock Oil & Gas, 313 U.S. at 108-09; Long, 201 F.3d at 757.
Accordingly, the Court finds that Wright Medical has not
satisfied its burden to show that removal is proper in the
instant case.
IV.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to Remand or
Alternatively, to Dismiss without Prejudice (ECF No. 7) is
GRANTED as to Plaintffs’ request for remand.
Plaintiffs’ Motion
is DENIED as moot as to Plaintiffs’ request for dismissal of the
case without prejudice.
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IT IS SO ORDERED, this 11th day of May, 2015.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
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