Beavers v. Medtronic, Inc.

Decision Date22 August 2014
Docket NumberNo. 3:13–CV–01058–CRS–DW.,3:13–CV–01058–CRS–DW.
Citation41 F.Supp.3d 633
CourtU.S. District Court — Western District of Kentucky
PartiesMichael J. BEAVERS, Plaintiff v. MEDTRONIC, INC. et al., Defendants.

Amanda L. Hartley, Robert D. Mattingly, Decamillis & Mattingly, PLLC, Lawrence Irwin Young, Romines Weis & Young, PSC, Louisville, KY, for Plaintiff.

Carol D. Browning, Julie McDonnell, Stites & Harbison, PLLC, Louisville, KY, for Defendants.

MEMORANDUM OPINION

CHARLES R. SIMPSON III, Senior Judge.

This matter is before the court on a motion to remand filed by the plaintiff, Michael J. Beavers (Plaintiff), against the defendants, Medtronic, Inc., Medtronic USA, Inc., Medtronic Sofamor Danek USA, Inc.,1 John Doe # 1, John Doe # 2, Mladen Djurasovic, M.D. (Dr. Djurasovic), Community Medical Associates, Inc., Norton Leatherman Spine Center, Norton Neurosurgical Institute of Kentucky, Norton Hospitals, Inc., Norton Hospital Leatherman Spine Center, Norton Healthcare, Inc., and Norton Enterprises, Inc.2 (DN 14).

I.

In June 2011, Plaintiff underwent a spinal fusion

surgery that was performed by Dr. Djurasovic at a Norton Hospital facility. During the surgery, Dr. Djurasovic used a bio-engineered liquid bone graft product known as Infuse Bone Graft. Infuse was allegedly designed, developed, manufactured, promoted, and sold by the Medtronic Defendants. Plaintiff alleges that Infuse is approved by the Federal Drug Administration (“FDA”) for use in a specific type of spinal fusion surgery, and that the Medtronic Defendants have illegally promoted “off-label” use3 of Infuse. Plaintiff claims that Dr. Djurasovic used Infuse in such an off-label manner during his surgery, and he allegedly suffered injuries as a result.

Plaintiff, a citizen of Indiana, filed this action in Jefferson County Circuit Court on October 28, 2013. (Compl., DN 1–1). In the complaint, Plaintiff asserts fifteen state law causes of action against the defendants, including, inter alia, fraud, fraudulent misrepresentation, fraudulent omission, conspiracy to commit fraud, concealment and nondisclosure, strict products liability, negligence, breach of warranty, and violation of the Kentucky Consumer Protection Act. In sum, Plaintiff alleges that the Medtronic Defendants actively promoted the use of Infuse in manners not approved by the FDA, concealed the side effects associated with off-label use, and provided misleading information regarding Infuse to consumers and the medical community. Plaintiff seeks punitive and compensatory damages for the damages he allegedly suffered as a result of the off-label use of Infuse during his spinal fusion

surgery.

The Medtronic Defendants removed the case to this court on October 29, 2013, invoking our diversity of citizenship jurisdiction, as well as our federal-question jurisdiction to hear cases “arising under” federal law. (Notice of Removal, DN 1). Plaintiff has moved to remand. (Mot. to Remand, DN 14).

II.

Pursuant to 28 U.S.C. § 1441(a), a civil action filed in state court is removable only if it could have originally been brought in federal court. 28 U.S.C. § 1441(a). Thus, “a district court must remand a removed case if it appears that the district court lacks subject matter jurisdiction.” Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910, 913 (6th Cir.2007). One source of original jurisdiction is diversity of citizenship jurisdiction, which is present only in cases “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States.” 28 U.S.C. § 1332(a).

A second source of original jurisdiction is federal question jurisdiction, which is present only in cases “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Such jurisdiction exists where “a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law” so that “federal law is a necessary element of one of the well-pleaded ... claims.” Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust, 463 U.S. 1, 13, 27–28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). However, “the plaintiff is the master of the claim,” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), and “the fact that the wrong asserted could be addressed under either state or federal law does not ... diminish the plaintiff's right to choose a state law cause of action.” Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 943 (6th Cir.1994) (citations omitted).

“A defendant seeking to remove a case to federal court has the burden of proving that the district court possesses jurisdiction.” Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 375 (6th Cir.2007) (citation omitted). “All doubts as to the propriety of removal are resolved in favor of remand.” Coyne v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir.1999) (citation omitted).

III.

The Medtronic Defendants assert two grounds on which they claim that this court has jurisdiction. First, they argue that the court has diversity jurisdiction because the parties are diverse and the amount in controversy exceeds the jurisdictional threshold of $75,000. Second, they contend that the court has federal question jurisdiction because Plaintiff's complaint necessarily raises a substantial question of federal law. The court will address each of these contentions in turn.

A.

The Medtronic Defendants argue that diversity of citizenship jurisdiction exists pursuant to 28 U.S.C. § 1332. Although Plaintiff acknowledges that the parties are diverse, he argues that remand is appropriate because several of the Non–Medtronic Defendants are Kentucky residents and, pursuant to the forum defendant rule, [a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title 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.” 28 U.S.C. § 1441(b)(2).4

Plaintiff filed his complaint with the Jefferson County Circuit Court on Monday, October 28, 2013. The following day, October 29, 2013, the Medtronic Defendants filed a notice of removal with this court. The Medtronic Defendants contend that the forum defendant rule is inapplicable in the instant action because this notice of removal was filed before any of the Non–Medtronic Defendants were served, thus precluding the application of § 1441(b)(2). Plaintiff acknowledges that the Medtronic Defendants filed the notice of removal the day after the lawsuit was filed, and that service was not accomplished on either the Non–Medtronic Defendants or the Medtronic Defendants until October 30, 2013.5 However, Plaintiff argues that the Medtronic Defendants' tactics in seeking quick removal before service on any defendant violates the language and intent of the forum defendant rule.

“The proper interpretation of the ‘properly joined and served’ language of the forum defendant rule has not been resolved by the federal appellate courts.” In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 2012 WL 2919219, *2 (E.D.Ky. July 17, 2012). The Sixth Circuit has recognized that “the inclusion of an unserved resident defendant in the action does not defeat removal under 28 U.S.C. § 1441(b),” but it has not indicated when, or if, removal would be warranted when a defendant attempts to “game” the system by watching the state court docket and removes the action before a forum defendant can be joined and served. McCall v. Scott, 239 F.3d 808, 813 n. 2 (6th Cir.2001) (citations omitted) (emphasis in original).

One purpose of the forum defendant rule is to prevent an out-of-state plaintiff from gaming the prohibition against removal by joining an in-forum party against whom no legitimate claim is made. See United Steel Supply, LLC v. Buller, 2013 WL 3790913, *1 (W.D.Ky. July 19, 2013) ; see also Stan Winston Creatures, Inc. v. Toys “R” Us, Inc., 314 F.Supp.2d 177, 180–81 (S.D.N.Y.2003). The forum defendant rule permits removal if the in-forum party is not properly joined in the lawsuit. The same consideration against gamesmanship would seem to apply when defendants attempt to use the forum defendant rule to their advantage by monitoring the state court docket and quickly removing an otherwise non-removable action before service can be accomplished. See Ethington v. General Elec. Co., 575 F.Supp.2d 855 (N.D.Ohio 2008) ; Allen v. GlaxoSmithKline PLC, 2008 WL 2247067 (E.D.Pa. May 30, 2008).

The Medtronic Defendants, however, urge the court to apply the plain language of § 1441(b) and ignore the implications that could arise from a literal application of the rule.6 They contend that the majority of courts in the Sixth Circuit have applied the plain meaning of the statute and denied remand when an action was removed prior to service of a forum defendant. See, e.g., Linder v. Medtronic, Inc., 2013 WL 5486770 (W.D.Tenn. Sept. 30, 2013) ; Darsie v. Cone, 2010 WL 2923285 (E.D.Ky. July 22, 2010). Indeed, a court in this district held:

The plain language of § 1441(b)(2), however, requires proper service for application of the forum defendant rule. The Court is not inclined to disregard this language, or read it out of the statute, especially because Congress amended the forum defendant rule in 2011 without altering the “properly joined and served” language despite the recognized disagreement among courts as to its application.
United Steel Supply, LLC v. Buller, 2013 WL 3790913, *4 (W.D.Ky. July 19, 2013). Although the court narrowly construed the removal statute in that instance, it noted that it would “make[ ] no judgment as to whether this same holding would apply to cases where the plaintiff actually presents evidence that the defendant engaged in a sort of gamesmanship to obtain federal jurisdiction prior to the time when plaint
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