Arrington v. Medtronic, Inc., Case Nos. 2:14–cv–02473–JTF–cgc

Citation130 F.Supp.3d 1150
Decision Date02 September 2014
Docket Number2:14–cv–02537–JTF–cgc.,2:14–cv–02523–JTF–cgc,2:14–cv–02535–JTF–cgc,2:14–cv–02503–JTF–cgc,2:14–cv–02536–JTF–cgc,Case Nos. 2:14–cv–02473–JTF–cgc
Parties Rose ARRINGTON, Joshua Lucas, Stephen and Anita Mayek, Kerry Hardy, Debra Izzo–Blount, Hector Santos, Plaintiffs, v. MEDTRONIC, INC., and Medtronic Sofamor Danek USA, Inc., Defendants.
CourtUnited States District Courts. 6th Circuit. Western District of Tennessee

Kevin J. Renfro, Becker Law Office, Leslie M. Cronen, Bubalo Goode Sales & Bliss, PLC, Louisville, KY, for Plaintiffs.

Andrew E. Tauber, Mayer Brown LLP, Washington, DC, Daniel L. Ring, Mayer Brown LLP, Chicago, IL, Leo Maurice Bearman, Jr., Sean P. Fahey, Robert F. Tom, Baker Donelson Bearman Caldwell & Berkowitz, Memphis, TN, for Defendants.

Jimmy Moore, Memphis, TN, pro se.

ORDER DENYING MOTION TO REMAND

JOHN T. FOWLKES, JR.

, District Judge.

Before the Court comes Plaintiffs' Rose Arrington, Joshua Lucas, Stephen and Anita Mayek, Kerry Hardy, Debra Izzo–Blount, and Hector Santos Joint Motion to Remand, filed on July 17, 2014. (Pls.' Mot. Remand, Arrington v. Medtronic, Inc., 2:14–cv–02473–JTF–cgc, ECF No. 9–1).1 On August 2, 2014, Defendants Medtronic, Inc. and Medtronic Sofamor Danek USA, Inc. filed their Response in Opposition to Plaintiff's Motion. (Defs.' Opp'n to Mot. Remand, ECF No. 17). Plaintiffs filed their Reply Brief in Support of their Motion to Remand on August 18, 2014. (Pls.' Reply to Mot. Remand, ECF No. 26). After reviewing the Motion and the entire record, the Court DENIES Plaintiffs' Motion to Remand.

I. BACKGROUND

On June 19, 2014, Plaintiff Rose Arrington filed her Complaint against Defendants Medtronic, Inc. ("Medtronic") and Medtronic Sofamor Danek USA, Inc. ("MSD") in the Circuit Court of Tennessee for the Thirtieth Judicial District at Memphis, Shelby County ("Circuit Court").2 The causes of action are based upon Plaintiffs' allegations that Defendants improperly and illegally promoted and sold a bio-engineered bone graft

device, the Infuse® Bone Graft /LT–Cage™ Lumbar Tapered Fusion Device ("Infuse®"), for unapproved and unreasonably dangerous surgical applications, which caused serious and permanent injuries to Plaintiffs. Specifically, Plaintiffs contend that, because the Infuse® was allegedly used in a manner inconsistent with the Food and Drug Administration's ("FDA") approval of the device, Defendants should be found liable for, inter alia, fraudulent use and promotion of the Infuse® through an off-label manner.

Plaintiffs allege eight causes of action: (1) fraudulent concealment, misrepresentation, and fraud; (2) failure to warn; (3) strict products liability—design defect; (4) negligent misrepresentation; (5) product liability—negligence; (6) breach of express warranty; (7) breach of implied warranty; and (8) various punitive damages. Plaintiffs request general damages "in an amount exceeding the jurisdictional limits of [Circuit Court] and the diversity jurisdictional limits of the U.S. District Court to be proven at trial," various past and future damages, and consequential damages. (Am. Master Compl., 187, Jenkins v. Medtronic, 2:13–cv–02004–JTF–cgc, ECF No. 75–1).

Defendant Medtronic, Inc. removed the case to the Western District of Tennessee, Western Division, on May 14, 2014. (Def.'s Not. of Removal, ECF No. 1). Subsequently, on July 17, 2014, Plaintiffs filed their Joint Motion to Remand their cases. Plaintiffs argue their cases were improperly removed from state court based on both diversity and federal question jurisdiction. Specifically, Plaintiffs aver that, although they are aware this Court ruled in Jenkins v. Medtronic, Inc., 984 F.Supp.3d 873 (W.D.Tenn.2013), that the plaintiffs in that case were not entitled to remand, their claims against Defendants should be remanded because: (1) they allege only state law remedies that parallel federal requirements; (2) Defendants' preemption defense is not a basis for removal; (3) federal questions are not substantial because FDA regulations are without substantial dispute as to their interpretation; and (4) basing jurisdiction on a defense will upset the balance of federal and state judicial responsibilities.

In their Response in Opposition to Plaintiff's Motion to Remand, Defendants assert that, because the Infuse® is classified as a Class III, FDA, premarket approved ("PMA") device under the Medical Device Amendments of 1976 ("MDA") to the Federal Food, Drug, and Cosmetic Act of 1938 ("FDCA"), 21 U.S.C. § 360k(a)

, these cases properly belong under federal jurisdiction. Additionally, Defendants argue that the removal of these cases from state court to federal district court was proper, because: (1) As this Court found in Jenkins, federal question jurisdiction exists, and (2) Removal based on diversity jurisdiction was proper. More Specifically, as to the existence of federal question jurisdiction, Defendants argue that: (1) The substantial federal question doctrine is an exception to the well-pleaded complaint rule; (2) Because 21 U.S.C. § 360k(a) requires a plaintiff to prove a federal violation, these cases necessarily raises questions of federal law; (3) The federal interest in regulating Class III medical devices is substantial; and (4) Federal jurisdiction over claims involving PMA medical devices does not upset the balance of federal and state judicial responsibility.

II. ANALYSIS

On a motion to remand, a defendant bears the burden of showing that federal court has original jurisdiction through either diversity of citizenship, see 28 U.S.C. §§ 1332(a)

and 1441(b), or federal question jurisdiction, see 28 U.S.C. §§ 1331 and 1441(a). See Warthman v. Genoa Township Bd. of Trustees, 549 F.3d 1055, 1061 (6th Cir.2008) and Kramer v. Regions Bank, No. 09–2408, 2010 WL 797792, at *2 (W.D.Tenn. Mar. 2, 2010). However, it is a well-settled premise in the Sixth Circuit that "because they implicate federalism concerns, removal statutes are to be narrowly construed." Long v. Bando Mfg. of America, Inc., 201 F.3d 754, 757 (6th Cir.2000). When there is uncertainty as to whether remand is appropriate or not, "all doubts should be resolved in favor of remand." Ethington v. General Electric Co., 575 F.Supp.2d 855, 860 (N.D.Ohio 2008). In this case, both diversity of citizenship and federal question jurisdiction issues are raised. Thus, this Court must examine whether these jurisdictional issues exist in this case.

A. Diversity of Citizenship Does not Exist

Both 28 U.S.C. §§ 1332(a)

and 1441(b)(2) govern the court's analysis of removal based on diversity of citizenship. See 28 U.S.C. § 1332(a)(1) ("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 ... and is between citizens of different States"); see also 28 U.S.C. § 1441(b)(2) ("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"). When a defendant's right to removal is questioned under 28 U.S.C. § 1441(b)(2), the court must look to the forum defendant rule to determine whether diversity of citizenship exists.

Under the forum defendant rule, a defendant is prohibited "from removing a case to federal district court when the concerns that underpin diversity jurisdiction (i.e. prejudice to out-of-state defendants) are not present because the plaintiff chose to file suit in defendant's own home state courts." Ethington, 575 F.Supp.2d at 858

. In other words, 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." Lincoln Property Co. v. Roche, 546 U.S. 81, 84, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005).

The Supreme Court has expressly stated that, "[i]t is not incumbent on the named defendants to negate the existence of a potential defendant whose presence in the action would destroy diversity." Id. Defendants correctly identify the leading Sixth Circuit case, McCall v. Scott, 239 F.3d 808, 813 n. 2 (6th Cir.2001)

, which states, in dicta, that "[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)." There is certainly a split within this Circuit about the application of McCall. However, there have been several district courts that have distinguished the Sixth Circuit's dicta in McCall. For example, in Ethington, the Court states 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).... The tactics employed by defendants [i.e. the removal of a case from state court to federal court by a forum defendant, before service on the forum defendant and/or a non-forum defendant] 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.3

575 F.Supp.2d at 861–862

. See also In re Darvocet, Darvon and Propoxyphene Products Liability Litigation, No. 2:12–97–DCR, 2012 WL 2919219, at *3 (E.D.Ky. July 17, 2012) ("This Court ... holds that an in-state defendant cannot avoid the statutory prohibition against removal by removing the case before service"); but see Linder v. Medtronic, Inc., 2013 WL 5486770, at *2 (W.D.Tenn. Sept. 30, 2013) ("First, there is nothing in the removal statute that precludes Medtronic from filing a notice of removal prior to Plaintiff effecting service of process upon it. Service of process is not a prerequisite to a defendant...

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