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Tyson v. Fife

United States District Court, D. Nevada

July 11, 2018

LAKIHA TYSON, Plaintiff,



         Pending before the Court is Plaintiff Lakiha Tyson's (“Plaintiff's”) Motion to Remand (“MTR”), (ECF No. 8). Defendants Cynosure, Inc. (“Cynosure”) and Hologic, Inc. (“Hologic”) (collectively “Manufacturer Defendants”) filed a Response, (ECF No. 19), and Plaintiff filed a Reply, (ECF No. 21). For the reasons stated herein, Plaintiff's Motion to Remand is GRANTED.

         I. BACKGROUND

         This case arises from a laser hair removal treatment administered to Plaintiff on October 19, 2016, by Defendant Aubree Little (“Little”). (Pet. for Removal, Ex. 1 (“Compl.”) 4:25, 5:6- 7, ECF No. 1). Defendant Douglas Fife, M.D. (“Dr. Fife”) is a partner of Defendant Fife Dermatology, P.C., d/b/a Surgical Dermatology & Laser Center (“Fife Dermatology”) (collectively “Provider Defendants”). (Id. at 4:19-24). Little performed the treatment on Plaintiff at Fife Dermatology with a Cynosure Apogee Elite Alexandrite 755 nm laser (the “Laser”), which is produced, designed, sold, distributed, and put in the stream of commerce by Manufacturer and Provider Defendants. (Id. at 4:25, 5:6-11). During the treatment, Plaintiff experienced an “unbearable burning sensation” and “suffered approximately 100 painful nickel-sized circular burns going up and down, and all over, both of her arms and shoulders.” (Id. at 5:19-25). Plaintiff now has “approximately 100 nickel-sized hyperpigmentation marks” over both her arms and shoulders that she alleges are likely permanent. (Id. at 6:1-3).

         On October 17, 2017, Plaintiff filed her Complaint in the Eighth Judicial District Court for Clark County, Nevada. (See Compl.). Plaintiff asserted eight causes of action, three of which are against the Manufacturer Defendants. (See id.). Specifically, Plaintiff alleged: (1) res ipsa loquitur; (2) product liability; and (3) failure to warn against the Manufacturer and Provider Defendants. (Id. at 12:1, 13:15, 15:5). On January 5, 2018, Manufacturer Defendants filed a Notice of Removal, asserting that this Court has diversity jurisdiction under 28 U.S.C. § 1332. (ECF No. 1). On January 17, 2018, Plaintiff filed the instant Motion to Remand. (ECF No. 8).


         If a Plaintiff files a civil action in state court, a defendant may remove that action to a federal district court if the district court has original jurisdiction over that matter. 28 U.S.C. § 1441(a). Removal statutes are strictly construed against removal jurisdiction. Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1317 (9th Cir. 1998). “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992) (quoting Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). The removing defendant always has the burden of establishing that removal is proper. Gaus, 980 F.2d at 566.

         “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Under 28 U.S.C. § 1332, complete diversity of citizenship is required, and each plaintiff must be a citizen of a different state than each defendant. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). “Nevertheless, one exception to the requirement for complete diversity is where a non-diverse defendant has been ‘fraudulently joined.'” Id. “Although there is a general presumption against fraudulent joinder, if the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state, the joinder of the resident defendant is fraudulent.” Hamilton Materials, Inc. v. Dow Chemical Corp., 494 F.3d 1203, 1206 (9th Cir. 2007) (internal citation and quotation marks omitted).


         In the instant Motion, Plaintiff asserts that remand is appropriate because diversity is not met. Manufacturer Defendants counter that diversity is met due to the doctrine of fraudulent misjoinder. (Pet. for Removal 2:13-17, ECF No. 1). If the Court disagrees, Manufacturer Defendants request in the alternative that the Court exercise its discretion under Federal Rules of Civil Procedure (“FRCP”) 21 to sever the claims in order to obtain diversity jurisdiction. (Resp. 10:6-7, ECF No. 19). In response, Plaintiff argues that Provider Defendants and Manufacturer Defendants were properly joined and additionally seeks reasonable attorney's fees and costs due to removal allegedly being improper. (MTR 1:23-28). The Court will first address diversity, turn to Rule 21, and then address attorney's fees.

         1. Diversity Jurisdiction and Fraudulent Misjoinder

         As a threshold issue, Plaintiff asserts that there is not complete diversity of parties, and thus the Court does not have jurisdiction. Plaintiff is a citizen of Clark County, Nevada. (Compl. 1:19). Manufacturer Defendants are both incorporated in Delaware with their principal place of business in Massachusetts. (Pet. for Removal 5:16-23); see 28 U.S.C. § 1332(c). Provider Defendants, however, are also citizens of Clark County, Nevada. (Compl. 1:20-25).

         Manufacturer Defendants assert that Provider Defendants were “fraudulently misjoined” and therefore should not be considered for the purposes of diversity jurisdiction. (Pet. for Removal 2:13-17). Fraudulent misjoinder was first recognized in the Eleventh Circuit. Tapscott v. MS Delaer Service Corp., 77 F.3d 1353, 1360 (11th Cir. 1996) abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). There, the Eleventh Circuit held that fraudulent misjoinder exists if the claims against the non-diverse party do not have any real connection or nexus to the claims of the diverse parties. Tapscott, 77 F.3d at 1360. The Eleventh Circuit found that such misjoinder is “egregious, ” and the court may disregard the joinder of fraudulently joined parties for diversity jurisdiction purposes. Id.

         Notably, only the Eleventh Circuit has adopted the fraudulent misjoinder doctrine. See, e.g., In re Prempro Prod. Liab. Litig., 591 F.3d 613, 620 n.4 (8th Cir. 2010) (declining to adopt fraudulent misjoinder); Lafalier v. State Farm Fire and Cas. Co., 391 Fed.Appx. 732, 739 (10th Cir. 2010) (addressing but not adopting the fraudulent misjoinder doctrine); In re Benjamin Moore & Co., 318 F.3d 626, 630 (5th Cir. 2002) (same). The Ninth Circuit has instead adopted the doctrine of fraudulent joinder, where joinder of a resident defendant is fraudulent “[i]f the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious . . .” Ritchey, 139 F.2d at 1318. The difference between the two is that fraudulent joinder occurs where a plaintiff cannot claim a cause of action against a non-diverse defendant, but fraudulent ...

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