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Cruz v. Homecare

United States District Court, D. Nevada

September 22, 2014

ELIZABETH CRUZ, an Individual in her own Capacity and as Executrix of the Estate of JOSELYN CRUZ, Plaintiff,
PREFERRED HOMECARE, an Arizona Limited Liability Company, et al., Defendants.


MIRANDA M. DU, District Judge.


Plaintiff Elizabeth Cruz, an individual in her own capacity and as executrix of the Estate of Joselyn Cruz, moved for an order remanding this action to state court ("Motion"). (Dkt. no. 5.) For the reasons set out below, the Motion is granted.


Plaintiff filed the First Amended Complaint ("FAC") in the Eighth Judicial District Court, Clark County, Nevada, on November 27, 2013. (Dkt. no. 1, Exh. B.) Defendants Preferred Homecare, Trent Wakefield, Yumi Burke and Ashley Miller removed to this Court on January 31, 2014, pursuant to 28 U.S.C. § 1441(a). (Dkt. no. 1.) Plaintiff now moves to remand to state court. (Dkt. no. 5.) Defendants filed an opposition (dkt. no. 11) and Plaintiff filed a reply (dkt. no. 13).

The FAC alleges the following facts. Plaintiff's decedent, Joselyn Cruz, was born with gastroschisis. (Dkt. no. 1, Exh. B at 3 ¶¶ 14-15.) As a result, she required regular home care, which was provided by Preferred Homecare. ( Id. at 3-4 ¶ 15.) Part of Joselyn's care was the preparation and delivery of Total Parental Nutrition ("TPN") as prescribed by Joselyn's Pediatric Gastroenterologist, Dr. Gremse. ( Id. at ¶¶ 15, 18-22.) According to Plaintiff, Dr. Gremse would prescribe the TPN by designating an overall volume, then designating a specific percentage of each substance. ( Id. at 4 ¶ 22.) A Preferred Homecare pharmacist would then calculate these percentages into grams. ( Id. at ¶ 23.)

The volume of TPN prescribed to Jocelyn changed over time. ( Id. at 5-6 ¶¶ 24, 26, 28.) Dr. Gremse intended for the percentage of dextrose in the TPN to remain the same with each new prescription, meaning the volume of dextrose should change with each new prescription. ( Id. at 4 ¶ 22.) However, from October 19, 2011, to November 29, 2011, the volume of dextrose remained consistent even though the total volume of TPN was decreased twice during that period. ( Id. at 5-6 ¶¶ 26, 28, 29.) This resulted in an overdose of dextrose, causing Joselyn's glucose levels to rise dangerously high. ( Id. at 6 ¶ 35.) Joselyn was admitted to the hospital for the first time November 27, 2011, due to symptoms caused by elevated glucose levels. ( Id. at ¶¶ 35-36.) On November 29, 2011, only shortly after being released from the hospital, Joselyn received another TPN treatment. ( Id. at 7 ¶ 36.) A half hour after beginning the treatment, Joselyn again began having seizures and was rushed to the hospital. ( Id. at ¶ 37.) However, Joselyn's glucose levels were so high that she went into cardiac arrest before the hospital staff could administer treatment. ( Id. ) Joselyn was pronounced dead on December 2, 2011. ( Id. at ¶ 38.)

Wakefield, Burke, and Miller are pharmacists employed by Preferred Homecare. ( Id. at 2 ¶¶ 3-5.) Three hours before the fatal dose of TPN was administered, Miller noted on Preferred Homecare's system that there was a problem with the formula calculations but no corrective action was taken.[1] ( Id. at 8 ¶ 44.) Wakefield's name is on the final bag of TPN that was administered and he is listed as the pharmacist who prepared it. ( Id. at ¶ 47.) Burke initialed this last bag of TPN and was responsible for monitoring Joselyn's blood glucose. ( Id. at ¶ 46.)

The FAC asserts the following claims: (1) Negligence against Preferred Homecare, Wakefield, Burke and Miller; (2) Breach of Implied Warranty against Preferred Homecare, Wakefield, Burke and Miller; (3) Strict Product Liability against Preferred Homecare, Wakefield, Burke and Miller; and (4) Professional Negligence against Dr. Gremse. ( Id. at 8-13.)


Defendants' Petition for Removal asserts that this Court has both federal question jurisdiction and diversity jurisdiction. (Dkt. no. 1.) The Court examines both types of jurisdiction and determines that Defendants have established neither.

A. Federal Question Jurisdiction

1. Legal Standard

Any action brought in state court may be removed if it could have been brought originally in federal district court. 28 U.S.C. § 1441(a). However, courts strictly construe the removal statute against removal jurisdiction, and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (emphasis added). "The strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Gaus, 980 F.2d at 566 (citations omitted). Federal district courts have original jurisdiction over civil actions "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Federal district courts may assert federal "arising under" jurisdiction over state claims that "necessarily raise a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 313 (2005). State-law claims give rise to federal question jurisdiction only where "a federal issue is: (1) ...

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