Ramirez v. Reyes et al
MEMORANDUM OPINION AND ORDER (Plaintiff's Motion to Remand and Corporate Defendants' Motion to Stay) Plaintiff's 4 Motion to Remand to State Court is GRANTED, and Defendants' 2 Motion to Stay is DENIED as moot, as more fully set forth herein. The court hereby REMANDS this case to the 438th Judicial District Court of Bexar County, Texas. Signed by Judge Joseph R. Goodwin on 8/6/2015. (cc: counsel of record; any unrepresented party) (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
JENNIFER RAMIREZ f/k/a JENNIFER GALINDO,
CIVIL ACTION NO. 2:15-cv-09131
JOHNSON & JOHNSON, et al.,
MEMORANDUM OPINION AND ORDER
(Plaintiff’s Motion to Remand and Corporate Defendants’ Motion to Stay)
Pending before the court is the plaintiff’s Motion to Remand to State Court [Docket 4] and
the Corporate Defendants’ Motion to Stay [Docket 2]. For the reasons set forth below, the Motion
to Remand to State Court is GRANTED, and the Motion to Stay is DENIED as moot.
This case resides in one of seven MDLs assigned to me by the Judicial Panel on
Multidistrict Litigation concerning the use of transvaginal surgical mesh to treat pelvic organ
prolapse (“POP”) and stress urinary incontinence (“SUI”). In the seven MDLs, there are more than
70,000 cases currently pending, approximately 25,000 of which are in the Ethicon, Inc. MDL,
MDL 2327. In this particular case, the plaintiff was surgically implanted with the TVT Obturator
System (the “TVT-O”) manufactured by Johnson & Johnson and Ethicon, Inc. (collectively, the
“Corporate Defendants”). (See Fourth Am. Pet. & Jury Demand [Docket 5-3] ¶¶ 12, 38). The
plaintiff claims that as a result of implantation of the TVT-O, she has experienced multiple
complications. The plaintiff alleges negligence, design defect, manufacturing defect, failure to
warn, breach of implied warranty, breach of express warranty, and punitive damages against the
Corporate Defendants. (Id. ¶¶ 40–72). The plaintiff alleges negligence against defendant Dr. Cesar
Reyes. (Id. ¶ 40).
The Corporate Defendants removed this action to the United States District Court for the
Western District of Texas on June 8, 2015, asserting that the court has original subject matter
jurisdiction under 28 U.S.C. § 1332(a) because there is complete diversity among all properly
joined parties and the amount in controversy exceeds $75,000.00. (See Notice of Removal [Docket
5], at 2–3). On June 9, 2015, the plaintiff moved to remand the case to state court for lack of subject
matter jurisdiction. (Mot. to Remand [Docket 4]). On the same day, the Corporate Defendants
moved to stay all proceedings in the Texas federal court, pending a decision to transfer the case
into MDL 2327. (Mot. to Stay [Docket 2]). Finally, on July 1, 2015, the case was transferred into
MDL 2327 before this court, (see Transfer Order [Docket 25]), rendering moot the Corporate
Defendants’ Motion to Stay. The surviving Motion to Remand is ripe for disposition.
Motion to Remand
The issue I must resolve is whether the federal courts have subject matter jurisdiction over
this dispute. Although originally filed in Texas state court, the Corporate Defendants removed this
action to federal court pursuant to 28 U.S.C. § 1441.1 Subsequently, this case was transferred from
the Western District of Texas to the Southern District of West Virginia, MDL 2327. Accordingly,
I apply the law of the Fourth Circuit to issues of federal procedure. See In re Temporomandibular
Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (“When analyzing
Section 1441 provides, “any civil action brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant . . . to the district court of the United States for the district and
division embracing the place where such action is pending.” 28 U.S.C. § 1441(a).
questions of federal law, the transferee court should apply the law of the circuit in which it is
located.” (citation omitted)).
Under Fourth Circuit law, removal statutes generally must be strictly construed against
removal. See, e.g., Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994)
(“Because removal jurisdiction raises significant federalism concerns, we must strictly construe
removal jurisdiction.”). Thus, the party seeking removal bears the burden of demonstrating
jurisdiction. Sonoco Prods. Co. v. Physicians Health Plan, Inc., 338 F.3d 366, 370 (4th Cir. 2003).
Here, the Corporate Defendants’ claimed basis for federal subject matter jurisdiction is diversity
of citizenship under 28 U.S.C. § 1332, which provides that a federal district court has original
jurisdiction over all civil actions between citizens of different states where the amount in
controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). Critically, section 1332 requires complete
diversity among the parties, meaning the citizenship of each plaintiff must be different from the
citizenship of each defendant. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
Complete diversity, however, need not exist in cases where a plaintiff fraudulently joins a
nondiverse defendant. In the Fourth Circuit, to show fraudulent joinder, “the removing party must
demonstrate either ‘outright fraud in the plaintiff’s pleading of jurisdictional facts’ or that ‘there is
no possibility that the plaintiff would be able to establish a cause of action against the in-state
defendant in state court.’” Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999) (quoting
Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)). Importantly, the standard for
determining whether there is any chance of recovery against the nondiverse defendant “is even
more favorable to the plaintiff than the standard for ruling on a motion to dismiss under [Federal
Rule of Civil Procedure] 12(b)(6).” Id.
Whether I must examine the possibility of a fraudulently joined party here depends on
whether the Corporate Defendants’ Notice of Removal was timely. This case presents two issues
regarding the timeliness of removal: First, whether the Notice of Removal was filed within 30 days
after receipt by the Corporate Defendants of the pleading from which the alleged grounds for
removal arose, 28 U.S.C. § 1446(b)(3); and second, whether the case was removed within 1 year
after commencement of the action or whether the plaintiff acted in bad faith in order to preclude
the defendant from removing the action, id. § 1446(c)(1).
With regard to the 30-day timeframe for removal, the record is clear that the Corporate
Defendants complied with 28 U.S.C. § 1446(b)(3). Indeed, the Corporate Defendants’ Notice of
Removal was filed on June 8, 2015, less than 30 days after May 21, 2015—the date Ms. Ramirez
filed the Fourth Amended Petition, which allegedly provided the Corporate Defendants with
grounds for removal. (See Notice of Removal [Docket 5], at 1). The Corporate Defendants’
compliance with the 1-year timeframe for removal, however, is less clear. While the Corporate
Defendants concede that removal was not sought until more than 1 year after suit was brought,
they argue that the grounds for removal were not known due to bad faith on behalf of Ms. Ramirez.
Under 28 U.S.C. § 1446(c)(1), “[a] case may not be removed . . . on the basis of jurisdiction
conferred by section 1332 more than 1 year after commencement of the action, unless the district
court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing
the action.” Although the Fourth Circuit has not explored the contours of the bad faith exception,
it is well settled that the plaintiff is the master of her complaint. See Pinney v. Nokia, Inc., 402
F.3d 430, 442 (4th Cir. 2005) (“The general rule, of course, is that a plaintiff is the ‘master of the
claim,’ and he may ‘avoid federal jurisdiction by exclusive reliance on state law’ in drafting his
complaint.” (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987))).
Corollary to this chief principle, it “is not inherently bad faith to use strategy to defeat
federal jurisdiction.” Brazell v. Gen. Motors, LLC, No. CA 6:14-4588-TMC, 2015 WL 1486932,
at *4 (D.S.C. Mar. 30, 2015) (citing Duck Village Outfitters v. Nationwide Mut. Ins. Co., C/A No.
2:14–cv–60–FL, 2015 WL 540149, at *2 (E.D.N.C. Feb. 10, 2015)). Thus, a defendant alleging
bad faith by a plaintiff bears an arduous burden that requires evidence of forum manipulation. See,
e.g., Hamilton San Diego Apartments, LP v. RBC Capital Markets, LLC, No. 14CV01856 WQH
BLM, 2014 WL 7175598, at *4 (S.D. Cal. Dec. 11, 2014) (finding that the plaintiff “did not
consistently fail to take steps to prosecute the claims against the” nondiverse defendant and that
the plaintiff “provided consistent plausible reasoning for the timing of the [nondiverse defendant’s]
dismissal”); Aguayo v. AMCO Ins. Co., 59 F. Supp. 3d 1225, 1263 (D.N.M. 2014) (finding that the
plaintiffs “did not act in bad faith by keeping the removal-spoiling defendants” because the
plaintiffs actively litigated their claims); Mansilla-Gomez v. Mid-S. Erectors, Inc., No. 0:14-CV00308-JFA, 2014 WL 1347485, at *2 (D.S.C. Apr. 3, 2014) (remanding case because the court did
not find that plaintiff, who failed to include any jurisdictional information in his state court
complaint, among other things, “acted in bad faith in order to prevent a defendant from removing
the action” (emphasis in original)); Lawson v. Parker Hannifin Corp., No. 4:13-CV-923-O, 2014
WL 1158880, at *6 (N.D. Tex. Mar. 20, 2014) (finding bad faith where the plaintiff “consistently
failed to take steps to prosecute her claims against [the nondiverse defendant], including failing to
serve him with discovery requests or noticing his deposition, and failing to seek a default judgment
when [the nondiverse defendant] failed to timely answer the petition”); Forth v. Diversey Corp.,
No. 13-CV-808-A, 2013 WL 6096528, at *3 (W.D.N.Y. Nov. 20, 2013) (finding that the plaintiffs’
“explanations for their failure to earlier dismiss [the nondiverse defendant] from the action [were]
inconsistent and implausible”); Watts v. RMD Holdings, Ltd., No. 2:12-CV-02181, 2012 WL
3860738, at *2 (S.D. W. Va. Sept. 5, 2012) (Johnston, J.) (finding no evidence or indication of bad
faith on the part of the plaintiffs); cf. Tedford v. Warner-Lambert Co., 327 F.3d 423, 428–29 (5th
Cir. 2003) (case preceding the enactment of section 1446(c)(1) that permitted the one-year limit in
section 1446 to be extended under equity “where a plaintiff has attempted to manipulate the
statutory rules for determining federal removal jurisdiction”).
Here, the Corporate Defendants argue that Ms. Ramirez manipulated the forum in three
primary ways: (1) Ms. Ramirez testified that she did not have any complaints against Dr. Reyes;
(2) Ms. Ramirez’s counsel proposed to stipulate to no fault on the part of Dr. Reyes; and (3) Ms.
Ramirez failed to actively litigate her claim against Dr. Reyes. I do not find the Corporate
Defendants’ arguments to be persuasive.
First, although Ms. Ramirez testified that she did not have any complaints against Dr.
Reyes, (see Ramirez Dep. [Docket 5-3], at 269:1–2), her testimony pertains to whether her decision
to visit a different doctor was influenced by Dr. Reyes, which she explained was not the case. (See
id. at 268:14–15 (“I was with Dr. Shows before and I was comfortable with her.”)). Critically, Ms.
Ramirez did not testify that she did not have any claims against Dr. Reyes. Second, contrary to the
Corporate Defendants’ argument, Ms. Ramirez’s counsel did not propose a stipulation that the
claims of all parties against Dr. Reyes should be dropped. Rather, Ms. Ramirez’s counsel simply
sought a stipulation that the Corporate Defendants would not pursue any third-party claims against
Finally, the Corporate Defendants’ evidence of Ms. Ramirez’s alleged failure to litigate
her claim against Dr. Reyes does not conclusively establish that Ms. Ramirez acted in bad faith.
The Corporate Defendants eventually clarified this error in their Correction to Notice of Removal and Opposition to
Motion Remand [Docket 20]. Nonetheless, the Corporate Defendants continue to argue that any request for stipulation
is evidence of bad faith.
Most importantly, Dr. Reyes remains a defendant in this action, and Ms. Ramirez’s negligence
claim against Dr. Reyes has been pending for nearly three years. This fact alone distinguishes Ms.
Ramirez’s case from the paradigm example of a bad faith removal case, wherein the nondiverse
defendant is dismissed after the case becomes statutorily “unremovable.” See, e.g., Tedford, 327
F.3d at 425 (finding bad faith where the plaintiff, without taking any discovery, entered non-suit
against the nondiverse defendant after the one year anniversary of the commencement of the action
had passed); Forth, 2013 WL 6096528, at *3 (finding bad faith where the plaintiff dismissed the
nondiverse defendant immediately after the one-year time period expired).
Furthermore, although Ms. Ramirez did not exhaust all avenues of discovery at her
disposal, she did seek and obtain discovery from Dr. Reyes, including requests for admissions and
requests for disclosure. Moreover, she hired an expert witness, Dr. Marks, who prepared an expert
report discussing Dr. Reyes’s conduct. Finally, Ms. Ramirez’s counsel even deposed Dr. Reyes.
At a minimum, these facts counsel against a finding of bad faith. Indeed, as one federal court
explained, “[a]ny non-token amount of discovery or other active litigation against a removal
spoiler entitles the plaintiff to” a presumption of good faith. Aguayo, 59 F. Supp. 3d at 1275.
Relatedly, the mere fact that the Corporate Defendants are not convinced that Ms. Ramirez will
succeed in her claim against Dr. Reyes does not establish bad faith. See id. at 1277 (“If a defendant
wants the removal to stick, then he or she should be able to show either: (i) that the plaintiff did
not litigate at all, or engaged in a mere scintilla of litigation against the removal spoiler; or (ii) that
the defendant has strong, unambiguous evidence of the plaintiff’s subjective intent, for which the
plaintiff cannot offer any plausible alternative explanation.” (emphasis added)).3 Without more,
I note that the bad faith standard under section 1446(c)(1) differs from the standard for proving fraudulent joinder,
which can be satisfied where “‘there is no possibility that the plaintiff would be able to establish a cause of action
against the in-state defendant in state court.’” Hartley, 187 F.3d at 424 (quoting Marshall, 6 F.3d at 232). An
unsuccessful claim is not necessarily brought in bad faith.
the Corporate Defendants have not met their burden of showing that Ms. Ramirez brought the
action against Dr. Reyes in bad faith in order to preclude diversity and prevent removal. For this
reason, Ms. Ramirez’s Motion to Remand is GRANTED. Because I find that the Corporate
Defendants’ removal was not timely, I need not address whether Dr. Reyes was, in fact,
Motion to Stay
Given the transfer of the case to this court by order dated July 1, 2014, the Corporate
Defendants’ Motion to Stay pending transfer is DENIED as moot.
For the reasons set forth below, the Motion to Remand to State Court [Docket 4] is
GRANTED, and the Motion to Stay [Docket 2] is DENIED as moot. The court hereby
REMANDS this case to the 438th Judicial District Court of Bexar County, Texas.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
ENTER: August 6, 2015
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