Wilson v. Ethicon Women's Health and Urology et al
Filing
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MEMORANDUM OPINION & ORDER granting 19 MOTION by Ann Wilson for Sanctions Pursuant to Federal Rule of Civil Procedure 11(c)(2). The law firm filing the notice of removal in this action, Drinker Biddle & Reath LLP, is hereby SANCTIONED in an amount equal to the plaintiff's just costs and attorney's fees incurred in handling the motion to remand. The full amount of the sanction will be determined by the court after the plaintiff has filed an accounting. Signed by Judge Joseph R. Goodwin on 5/13/2014. (cc: attys; any unrepresented party) (skh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ANN WILSON, AKA ANNA WILSON,
CRW
Plaintiff,
Civil Action No. 2:14-cv-13542
v.
ETHICON WOMEN’S HEALTH AND
UROLOGY., et al.
Defendants
MEMORANDUM OPINION & ORDER
Pending is Plaintiff Ann Wilson’s Motion for Sanctions [Docket 19]. The motion is ripe
for review. Because the defendants’ improper removal of this case was a violation of Federal Rule
of Civil Procedure 11, the motion is GRANTED. The law firm filing the notice of removal in this
action, Drinker Biddle & Reath LLP, is hereby SANCTIONED in an amount equal to the
plaintiff’s just costs and attorney’s fees incurred in handling the motion to remand. The full amount
of the sanction will be determined by the court after the plaintiff has filed an accounting.
I.
Background
This is one of over 55,000 cases assigned to me by the Judicial Panel on Multidistrict
Litigation. Approximately 18,000 of these cases have been filed against Ethicon, Inc. and related
entities in the Ethicon MDL. These cases arise out of alleged defects in transvaginal surgical mesh
used to treat stress urinary incontinence and pelvic organ prolapse. Last year, the Ethicon
defendants, (in this case, Ethicon Women’s Health and Urology, Ethicon, Inc., Gynecare, and
Johnson & Johnson), began removing cases filed in the Court of Common Pleas of Philadelphia
County. They argued that removal of these cases was proper because they believed another
defendant, Secant Medical, LLC (“Secant”), had been fraudulently joined. On December 19, 2013,
I issued an order finding that Secant had not been fraudulently joined and remanding three cases.
See In re Ethicon, Inc., Pelvic Repair Sys. Prods. Liab. Litig., No. 2:13-cv-26024, 2013 U.S. Dist.
LEXIS 178317 (S.D. W. Va. Dec. 19, 2013).
Ethicon, however, continued to remove cases and continued to argue that Secant had been
fraudulently joined. In several cases, Ethicon also argued that this court had federal question
jurisdiction over the plaintiffs’ claims. I reiterated my finding that Secant had not been fraudulently
joined, and also held that these state court cases “do[] not present a federal question under 28
U.S.C. § 1331[.]” See, e.g., Order, Bisacca v. Ethicon Women’s Health & Urology, No. 2:14-cv07683, Docket 20, Apr. 3, 2014. In the instant case, Ethicon based its removal solely on the premise
of federal question jurisdiction. Due to Ethicon’s unjustifiable removal of the instant case, the
plaintiff has moved for sanctions.
II.
Legal Standard
Pursuant to Federal Rule of Civil Procedure 11, lawyers certify that the legal contentions
they make “are warranted by existing law or by a nonfrivolous argument for extending, modifying,
or reversing existing law or for establishing new law[.]” Fed. R. Civ. P. 11(b)(2). In the Fourth
Circuit, “[a]n assertion of law violates Rule 11(b)(2) when, applying a standard of objective
reasonableness, it can be said that a reasonable attorney in like circumstances could not have
believed his actions to be legally justified.” In re Sargent, 136 F.3d 349, 352 (4th Cir. 1998)
(internal quotations omitted). However, merely “asserting a losing legal position . . . is not of itself
sanctionable conduct.” Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 151 (4th Cir. 2002).
According to the Advisory Committee Notes to Rule 11, “the extent to which a litigant has
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researched the issues and found some support for its theories even in minority opinions, in law
review articles, or through consultation with other attorneys should certainly be taken into account
in determining whether” the rule has been violated. Fed. R. Civ. P. 11 advisory committee note to
1993 Amendments.
“If, after notice and a reasonable opportunity to respond, the court determines that Rule
11(b) has been violated, the court may impose an appropriate sanction” on the attorneys who
violated the rule. Fed. R. Civ. P. 11(c)(1). Rule 11 sanctions “must be limited to what suffices to
deter repetition of the conduct or comparable conduct by others similarly situated.” Fed. R. Civ.
P. 11(c)(4).
III.
Discussion
Ethicon’s continued removal of these cases ignores both prior decisions of this court and
clearly established federal law. Ethicon claims in its opposition to the motion to remand that
“Defendants have no desire to remove cases only to have them remanded or to re-litigate issues
already decided by the Court.” (Defs. Ethicon, Inc. and Johnson & Johnson’s Mem. of Law in
Opp. to Pl.’s Mot. to Remand [Docket 18], at 2). However, by removing cases with no
ascertainable legal basis, that is exactly what the defendants are doing.
Section 1331 of Title 28 of the United States Code provides that “[t]he district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.” As the Supreme Court of the United States has explained:
Under our longstanding interpretation of the current statutory scheme, the question
whether a claim “arises under” federal law must be determined by reference to the
“well-pleaded complaint.” A defense that raises a federal question is inadequate to
confer federal jurisdiction. Since a defendant may remove a case only if the claim
could have been brought in federal court, moreover, the question for removal
jurisdiction must also be determined by reference to the “well-pleaded complaint.”
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Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). Despite clearly established law
requiring that the basis for federal question jurisdiction appear on the face of the well-pleaded
complaint, Ethicon now argues that this court can exert federal question jurisdiction because of an
affirmative defense another defendant intends to raise.
The Biomaterials Access Assurance Act of 1998 (“B.A.A.A.”) provides immunity to
biomaterials suppliers who provide component parts to manufacturers of medical devices. See
generally 21 U.S.C. §§ 1601 et seq. Ethicon argues that Secant, a defendant in a number of cases
filed in state court in Pennsylvania, is a biomaterials supplier under B.A.A.A. This court rejected
Ethicon’s argument that Secant had been fraudulently joined by the plaintiffs and remanded
numerous cases where Ethicon made this argument. See, e.g., In re Ethicon, Inc., Pelvic Repair
Sys. Prods. Liab. Litig., No. 2:13-cv-26024, 2013 U.S. Dist. LEXIS 178317 (S.D. W. Va. Dec. 19,
2013).
Once Ethicon realized that this court would not be changing its mind regarding fraudulent
joinder, it then attempted to argue that this court had federal question jurisdiction over the
plaintiffs’ state tort law claims. Ethicon confusingly bases this argument on some combination of
the B.A.A.A. and the Supreme Court case Grable & Sons Metal Products, Inc. v. Darue
Engineering & Manufacturing, 545 U.S. 308 (2005). This argument is entirely without merit.
Neither the B.A.A.A. nor Grable purported to change the long-standing rule that the basis for
federal question jurisdiction must be found in the well-pleaded complaint. Indeed, “Grable
emphasized that it takes more than a federal element to open the ‘arising under’ door,” Empire
Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 701 (2006); it did not change the established
rule that the element conferring federal jurisdiction over a case must be seen on the face of the
well-pleaded complaint. See generally Grable, 545 U.S. 308; see also, e.g., Chicago Tribune Co.
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v. Bd. of Trustees of Univ. of Illinois, 680 F.3d 1001, 1003 (7th Cir. 2012) (“Grable has nothing
to do with using federal defenses to move litigation to federal court. In Grable the federal issue
was part of the plaintiff’s own claim.”). Additionally, the B.A.A.A. itself provides that “[n]othing
in this Act may be construed . . . to create a cause of action or Federal court jurisdiction pursuant
to section 1331 or 1337 of title 28, United States Code, that otherwise would not exist under
applicable Federal or State law.” 28 U.S.C. § 1603(d)(2).
Despite the B.A.A.A.’s clear statement that it does not give the courts federal question
jurisdiction and despite the existence of the well-pleaded complaint rule, Ethicon now argues that
the B.A.A.A., in combination with Grable, somehow creates federal question jurisdiction. Ethicon
makes this contention by choosing specific quotes from Grable that seem to support its argument,
without regard for what the case actually addressed. Importantly, “Grable does not alter the rule
that a potential federal defense is not enough to create federal jurisdiction under § 1331.” Chicago
Tribune Co. v. Bd. of Trustees of Univ. of Illinois, 680 F.3d 1001, 1003 (7th Cir. 2012). Nothing
in Grable can be reasonably understood to alter the long-standing notion that the basis for federal
jurisdiction must appear on the face of the well-pleaded complaint. Lest there be any confusion
about this matter, the Supreme Court reiterated after Grable that “it would undermine the clarity
and simplicity of [the well-pleaded complaint] rule if federal courts were obliged to consider the
contents not only of the complaint but also of responsive pleadings in determining whether a case
‘arises under’ federal law.” Vaden v. Discover Bank, 556 U.S. 49, 60-61 (2009). In Vaden, the
Court held that federal jurisdiction cannot be premised upon a defense or counterclaim, and noted
that:
Under the longstanding well-pleaded complaint rule . . . a suit “arises under” federal
law only when the plaintiff’s statement of his own cause of action shows that it is
based upon federal law. Federal jurisdiction cannot be predicated on an actual or
anticipated defense: “It is not enough that the plaintiff alleges some anticipated
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defense to his cause of action and asserts that the defense is invalidated by some
provision of federal law.”
Id. at 59-60 (quoting Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908)). Likewise,
after Grable, the Fourth Circuit restated the established rule:
Under what has become known as the well-pleaded complaint rule, § 1331 federal
question jurisdiction is limited to actions in which the plaintiff’s well-pleaded
complaint raises an issue of federal law; actions in which defendants merely claim
a substantive federal defense to a state-law claim do not raise a federal question.
In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006).
This case is not the first time that I have rejected Ethicon’s argument that these state law
tort cases present a federal question. In several other cases removed by Ethicon, I found that they
“do[] not present a federal question under 28 U.S.C. § 1331[.]” See, e.g., Order, Bisacca v. Ethicon
Women’s Health & Urology, No. 2:14-cv-07683, Docket 20, Apr. 3, 2014. In those cases, I rejected
precisely the same arguments Ethicon now makes. There is nothing new or exceptional in the
instant matter that was not present in those earlier cases. To suggest that federal question
jurisdiction exists over these state tort claims because of an affirmative defense ignores the very
clear precedent to the contrary. Rehashing this same issue endlessly wastes the time of both the
parties and the court, and cannot be casually overlooked.
Ethicon’s argument that this court should assert federal question jurisdiction over a state
law claim merely because of an available affirmative defense has “absolutely no chance of success
under the existing precedent.” Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006). It
cannot be said that a reasonable attorney in like circumstances would have thought his actions
were legally justified. It is a basic concept taught in the first year of law school that the basis for
federal question jurisdiction must be found on the face of the well-pleaded complaint. See, e.g.,
Richard D. Freer, Introduction to Civil Procedure § 4.6, at 193 (2006) (“To invoke jurisdiction
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under § 1331, federal law must be part of the plaintiff’s ‘well-pleaded’ complaint . . . . the court
looks only to the plaintiff’s complaint—not to the defendant’s assertions of defenses or to the
defendant’s filing of counterclaims against the plaintiff—to determine whether there is federal
question jurisdiction.”); Edwin Chemerinsky, Federal Jurisdiction § 5.2, at 295 (6th ed. 2012)
(“[I]t must be clear from the face of the plaintiff’s complaint that there is a federal question”); see
also, e.g., Charles Alan Wright et al., Federal Practice & Procedure § 3566, at 265 (3d ed. 2008)
(“[T]he well-pleaded complaint rule . . . . bars invoking jurisdiction on the basis of a federal
defense raised by the defendant’s answer.”); id. at 265-66 (“From 1875 to 1887 removal had been
allowed on the basis of a federal defense. The American Law Institute proposed that once again
this should be allowed, but there seems to be no movement in that direction.”).
It is perfectly plain that the removal jurisdiction of the federal court depends upon
the plaintiff’s complaint. Unless the plaintiff’s complaint relies upon federal law,
there is simply no federal-question removal jurisdiction. The fact that the state court
defendant might rely on federal rights, be they constitutional or statutory, in defense
of the action does not confer federal question removal jurisdiction.
Lanham v. Griffin, 7 F. Supp. 2d 644, 645 (D. Md. 1998) (internal citation omitted).
Other courts have found sanctions to be appropriate in similar circumstances. In Curran v.
Price, the defendants removed a case that “raised no federal question, but sought relief only under
Maryland law.” 150 F.R.D. 85, 86 (D. Md. 1993). The court in that case noted that
the problem with . . . this is that the case was not removable, under a fundamental
precept of federal removal jurisdiction. That is, the presence of a federal defense
does not make a case removable, because it is the plaintiff's complaint, not the
defendant’s defense, that determines whether there is a federal question upon which
removal can be premised. This concept is firmly rooted in case law. See, e.g.,
Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987) (wherein the Supreme Court
itself noted that the principle is entirely settled).
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Id. It then found that the removal notice “was not well-grounded in law” and was therefore “signed
and filed in violation of” Rule 11. Id. Similarly, I FIND that Ethicon’s groundless removal of this
case violated Rule 11 and warrants sanctions.
Because I have determined that Ethicon’s behavior is sanctionable, I must determine the
appropriate sanction in this case. In Curran, the court rejected the idea of a monetary fine or
mandated CLE course to educate defense counsel, and directed defense counsel to copy a section
of Federal Practice and Procedure by hand. See id. at 87. The court determined in that case, it
was “the least drastic—and likely a very effective—way of impressing the appropriate principles
of federal removal jurisdiction upon counsel's long-term memory.” Id. The court recognized that
the plaintiff in that case could recover attorney’s fees pursuant to 28 U.S.C. § 1447(c), and found
that a further penalty was also warranted. See id. In Curran, the court found that in addition to the
award of fees under 28 U.S.C. § 1447(c), a non-monetary sanction was appropriate “because the
improper filing . . . resulted as much or more from ignorance of the law as from anything else[.]”
Id.
In this case, I do not believe that defense counsel’s actions were motivated by ignorance of
the law. These are competent attorneys who knew or should have known when the notice of
removal was filed that their arguments were objectively unreasonable and had no chance of
success. Defense counsel’s motives here seem to be calculated to keep these cases out of state
court for as long as possible and to waste the court’s time and the plaintiff’s resources. The purpose
of Rule 11 sanctions is “discourage dilatory or abusive tactics and help to streamline the litigation
process by lessening frivolous claims or defenses.” Fed. R. Civ. P. 11 advisory committee’s note.
It allows for a wide variety of both monetary or nonmonetary sanctions, depending on a variety of
factors, including “[w]hether conduct was willful, or negligent; whether it was part of a pattern of
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activity or an isolated event; . . . whether the person has engaged in similar conduct in other
litigation; . . . [and] what effect it had on the litigation process in time or expense[.]” Id. Pursuant
to an order entered today, I awarded the plaintiff fees and costs under 28 U.S.C. 1447(c), to be
determined once plaintiff has submitted an accounting. I FIND that the appropriate sanction for
defense counsel in this case is equal to the same amount awarded under 28 U.S.C. § 1447(c). In
effect, once that amount is determined, the plaintiff will be awarded fees and costs under § 1447(c)
and the defendants will also be sanctioned in that same amount under Rule 11.
IV.
Conclusion
For the reasons set forth above, Plaintiff Ann Wilson’s Motion for Sanctions [Docket 19]
is GRANTED. The law firm filing the notice of removal in this case, Drinker Biddle & Reath
LLP, is hereby SANCTIONED in an amount equal to the plaintiff’s just costs and attorney’s fees
incurred in handling the motion to remand. The full amount of the sanction will be determined by
the court after the plaintiff has filed an accounting.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
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May 13, 2014
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