United States District Court, D. Nevada
the court is Boston Scientific Corporation's
(“Boston Scientific”) motion to stay all
proceedings pending transfer to the United States District
Court for the Southern District of West Virginia as part of
In re: Boston Scientific Corp., Pelvic Repair System
Prods. Liab. Litig., MDL No. 2326. (ECF No. 5). On March
14, 2017, the Clerk of the Panel determined that this action
is not appropriate for inclusion in the MDL. (ECF No. 7).
Accordingly, Boston Scientific Corporation's motion to
stay all proceedings pending transfer to MDL (ECF No. 5) is
before the court is plaintiffs' motion to remand. (ECF
No. 8). Boston Scientific opposed the motion (ECF No. 13) and
plaintiffs replied (ECF No. 15).
1332 provides a United States district court with original
jurisdiction over “all civil actions 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.
Section 1441(a) provides that “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). Section 1447(c) provides, “If at any time
before the final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c) .
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). In suits
originally brought in state court and then removed, there
exists a “strong presumption” against removal
jurisdiction such that the defendant bears the burden of
establishing that removal is proper. Id. at 566-67.
It is uncontested that plaintiffs' complaint names three
non-diverse defendants: Dr. Vickie L. Tippette, Dr. Myron W.
Bethel, and Renown Regional Medical Center (“Healthcare
Provider Defendants”). (See ECF No. 1-1
(Complaint) at ¶¶ I, IV, and V). Defendant Boston
Scientific removed this case on March 8, 2017, based on
diversity of citizenship (ECF No.1) and now opposes remand on
the basis of fraudulent misjoinder (ECF No. 13). Boston
Scientific alternatively requests that the court sever and
remand the claims against the Healthcare Provider Defendants
to state court pursuant to Rule 21.
to Federal Rule of Civil Procedure 20, permissive joinder
among defendants must meet two specific requirements: (1) the
right to relief is asserted against them jointly, severally,
or in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or
occurrences; and (2) a question of law or fact is common to
all defendants must arise in the action. Fed.R.Civ.P.
20(a)(2). Courts “start with the premise that Rule 20 .
. . regarding permissive joinder is to be construed liberally
in order to promote trial convenience and to expedite the
final determination of disputes, thereby preventing multiple
lawsuits.” League to Save Lake Tahoe v. Tahoe
Reg'l Planning Agency, 558 F.2d 914, 917 (9th Cir.
provides that the court may, “on just terms, add or
drop a party” from an action or “sever any claim
against a party.” “If the test for permissive
joinder [under Rule 20] is not satisfied, a court, in its
discretion, may sever the misjoined parties, so long as no
substantial right will be prejudiced by the severance.”
Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir.
Scientific argues that neither prong of Rule 20(a)(2) is met
in this case. First, Boston Scientific asserts that the
product liability claims against it are distinct from the
medical negligence claims against the Healthcare Provider
Defendants, requiring different facts and evidence. Second,
Boston Scientific argues that the claims against it and the
Healthcare Provider Defendants are factually distinct and
that any liability that may be found against Boston
Scientific would not be a basis for liability as to the
Healthcare Provider Defendants.
court finds that for the purposes of remand, plaintiffs'
claims against Boston Scientific and the Healthcare Provider
Defendants are sufficient to satisfy the joinder
requirements. Plaintiffs allege that during the surgery,
“the PRODUCT either malfunctioned due to a design or a
manufacturing defect, and in breach of all warranties,
express and implied, or defendants TIPPETTE and BETHEL
negligently and below standards of care failed to properly
utilize the device, which led to its malfunction.” (ECF
No. 1-1 at ¶ XI). These acts and omissions form the
basis for Plaintiffs' claims and combine to cause a
single injury in this case. Thus, the claims against the
defendants relate to the same transaction or occurrence
sufficient to satisfy Rule 20(a). The court also finds that
the claims against Boston Scientific and the Health Care
Providers share questions of fact. Plaintiffs allege that the
defendants' conduct caused a single injury and seek to
recover the same damages from all defendants.
court declines to sever under Rule 21 as plaintiffs would be
prejudiced by the severance and it would not promote judicial
efficiency. Accordingly, Boston Scientific's motion to
stay all proceedings (ECF No. 5) is denied. Plaintiffs'
motion to remand (ECF No. 8) is granted. Having remanded this
case, the court declines to consider Boston Scientific's
motion to dismiss (ECF No. 10). . . .
case is remanded to the District Court of the State of Nevada
in and for the County of Washoe for all further proceedings.
Each party shall bear its own costs and attorney's fees
incurred as a result of the removal. The clerk shall mail a
certified copy of this order of remand to the clerk of ...