Shears v. Park

• Decision Date: 30 September 2013
• Docket Number: Case No.: 1:13-cv-01298 - AWI - JLT
• Parties: MICAELLA SHEARS, Plaintiffs, v. ARTHUR PARK, M.D.; BOSTON SCIENTIFIC CORPORATION; and DOES 1 through 50, Defendants.
• Court: U.S. District Court — Eastern District of California

MICAELLA SHEARS, Plaintiffs, v. ARTHUR PARK, M.D.; BOSTON SCIENTIFIC CORPORATION;and DOES 1 through 50, Defendants.

Case No.: 1:13-cv-01298 - AWI - JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: September 30, 2013

ORDER GRANTING PLAINTIFF'S MOTION TO

REMAND

(Doc. 13)

Plaintiff Micaella Shears seeks a remand of this action, which was removed from Kern County Superior Court by Defendant Boston Scientific Corporation ("Defendant"). (Doc. 13). Defendant filed its opposition to the motion on September 17, 2013 (Doc. 17), to which Plaintiff filed a reply on September 24, 2013 (Doc. 21). The matter was taken under submission pursuant to Local Rule 230(g). For the following reasons, Plaintiff's motion to remand is GRANTED.

I. Factual and Procedural Background

Plaintiff filed a complaint in Kern County Superior Court, Case No. S-1500-CV-279733, on June 28, 2013.¹ (Doc. 1-1). Plaintiff alleges Boston Scientific Corporation designed, formulated,compounded, tested, manufactured, produced, processed, assembled, inspected, distributed, marketed, labeled, promoted, packaged and/or advertised for sale a midurethral sling that was placed in Plaintiff. (Doc. 1-1 at 3-4, ¶3).

According to Plaintiff, in October 2008 and again in February 2009, "the United States Food & Drug Administration informed health care providers about serious complications associated with transvaginal placement of surgical mesh in repair of pelvic organ prolapse and stress urinary incontinence." (Doc. 1-1 at 4, ¶8). Plaintiff asserts Boston Scientific Corporation "concealed that its product substantially increased the risk of serious and severe injuries, to its users, and the midurethral sling was not adequately tested in terms of safety." (Id. at 8, ¶29). She alleges that "Boston Scientific Corporation . . . or their agents or sales representatives, orally and in publications, packet inserts and other written materials and to the general public, [represented] that the midurethral sling was safe, effective, fit and proper for its intended use." (Id. at 9, ¶36). However, Plaintiff asserts "the engineering and design of the midurethral sling failed to consider safety issues and was in fact unsafely designed and engineered." (Id. at 8, ¶29).

Plaintiff alleges that she had "an abdominal hysterectomy with revision of scar and placement of midurethral sling with obtryx performed by defendant Arthur Park, M.D." on February 17, 2011. (Doc. 1-1 at 4-5, ¶ 9). She asserts Dr. Park "failed to advise [her] of the risks associated with placement of a midurethral sling" and "of the potential for serious complications with the use of mesh." (Id. at 5, ¶ 12). According to Plaintiff she began to experience "physical symptoms from the placement of the midurethral sling in July/August 2012." (Id., ¶ 10). Plaintiff reports Dr. Park informed her "that there was a problem with the surgical mesh" on August 13, 2012. (Id.) She alleges she "was seen by another physician due to her complaints regarding the midurethral sling" on October 16, 2012, at which time she "was advised that the mesh placed during the February 17, 2011 surgery should not have been used for anyone sexually active and under the age of seventy." (Id. at 5, ¶ 13).

Plaintiff asserts that as a result of Defendants' conduct, she "suffered damages, including pain and suffering and had to pay the cost of additional medical and hospital care treatment." (Doc. 1-1 at12, ¶52). In addition, Plaintiff alleges she "suffered loss of earnings and earning capacity." (Id.) For the foregoing, Plaintiff raises the following causes of action: (1) medical malpractice against Dr. Park; (2) negligence, (3) strict liability- products liability and failure to warn, (4) breach of express warranty (5) breach of implied warranty, and (6) deceit/fraudulent concealment. (See id. at 3).

Defendant Boston Scientific Corporation filed a Notice of Removal of the action on August 14, 2013, thereby initiating the action in this Court. (Doc. 1). Defendant asserted "there is complete diversity among all properly joined an[d] served parties" and that "the citizenship of defendant Arthur Park, M.D., should be ignored, as this defendant is fraudulently misjoined." (Id. at 2, 7) (citing, e.g., Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir. 1996); Sutton v. Davol, Inc., 251 F.R.D. 500 (E.D. Cal. 2008)). Accordingly, Defendants contend the Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 because "there exists complete diversity of citizenship between plaintiff and BSC, and the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs." (Id. at 4).

The Judicial Panel on Multidistrict Litigation ("JPML") has established several Multidistrict Litigation proceedings for mesh products, including the product identified in Plaintiff's complaint. On February 7, 2012, the JPML issued a Conditional Transfer Order centralizing actions related to pelvic mesh products in the Southern District of West Virginia before the Honorable Joseph Goodwin in MDL No. 2326 for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. In re: Boston Scientific Corp. Pelvic Repair System Productions Liability Litigation, 844 F.Supp.2d 1359, 1362 (J.P.M.L. 2012). Defendants filed a notice with the JPML identifying Plaintiff's case as possible "tag-along" action to MDL No. 2326. The JPML determined the action "involve[s] questions of fact that are common to the actions previously transferred to the Southern District of West Virginia and assigned to Judge Goodwin" and conditionally transferred Plaintiff's case to MDL No. 2326 on August 21, 2013. (Doc. 18-1 at 2, Awong Decl.- Exh. A). Plaintiff filed a Motion to Vacate the Conditional Transfer Order on September 10, 2013. (Doc. 18-1 at 5, Awong Decl.- Exh. B) The parties are currently awaiting a hearing date from the JPML. Defendant seeks a stay of the action pending a decision by the JPML, while Plaintiffs seek a remand of the action to Kern County Superior Court.

Notably, the parties disagree whether the Court should address the matter of its jurisdiction prior to the motion to stay (which is set for hearing on October 15, 2013), or whether the issue of jurisdictionshould be reserved for consideration by the MDL Panel. According to Defendant, "courts frequently grant stays pending a decision by the MDL Panel regarding whether to transfer a case." (Doc. 17 at 10) (quoting Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997). Defendant notes several courts have stayed proceedings arising under similar circumstances. Id. at 10-11 (citing, e.g., Rubio v. Arndal, 2013 WL 796669, at *2 (E.D. Cal. Mar. 4, 2013); Nichols v. DePuy Orthopaedics, Inc., 2011 WL 5335619, at *2-3 (N.D. Cal. Nov. 2, 2011); In re Vioxx Prod. Liab. Cases, 2005 WL 6573263, at *3 (S.D. Cal. July 11, 2005). Therefore, Defendant asserts the "pretrial issues . . . should be decided by the MDL court to preserve judicial resources and avoid inconsistent rulings." Id. at 13.

On the other hand, Plaintiff contends the Court should address the matter of its jurisdiction prior to deciding whether to stay the action. Plaintiff observes: "The law of the Ninth Circuit provides that normally jurisdiction must be determined prior to reaching other threshold issues absent specific exceptions to this general rule." (Doc. 21 at 3) (citing Martin v. Depuy Orthopaedics Inc., 2013 U.S. Dist. LEXIS 22399 *3, fn.1, 2013 WL 607855 at 1, fn.1 (S.D. Cal. Feb. 15, 2013); Potter v. Hughes, 546 F.3d 1051, 1061 (9th Cir. 2008)). According to Plaintiff, because a preliminary assessment "suggests that the removal was improper, the Court must 'promptly complete its consideration of the motion to remand rather than staying the case." (Doc. 21 at 5) (quoting Conroy v. Fresh Del Monte Produce, Inc., 325 F.Supp.2d 1049, 1053 (N.D. Cal. 2004).

Importantly, because the district courts are "court of limited jurisdiction," the Court has an obligation to assure itself of its jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir. 1981). The Court "should not automatically stay discovery, postpone rulings on pending motions, or generally suspend further rulings upon a parties' motion to the MDL Panel for transfer and consolidation." Rivers, 980 F. Supp. at 1360; JPML Rule 2.1(d) ("The pendency of a motion . . . [or] conditional transfer order . . . before the Panel pursuant to 28 U.S.C. § 1407 does not affect or suspend orders and pretrial proceedings in any pending federal district court action and does not limit the pretrial jurisdiction of that court"). Accordingly, the Court declines to delay ruling upon the motion to remand until the date of hearing on Defendant's motion to stay the action, and considers whether it has jurisdiction over the action.

II. Removal to Federal Court

Pursuant to 28 U.S.C. § 1441(a), a defendant has the right to remove a matter to federal court where the district court would have original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 286, 392 (1987). Specifically,

Except otherwise expressly provided by Act of Congress, 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 or defendants, 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). District courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Id. at § 1331.

A party seeking removal must file a notice of removal of a civil action within thirty days of receipt of a copy of the initial pleading. Id. at § 1446(b). Removal statutes are to be strictly construed, Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992), and the party seeking removal bears the burden of...