United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE
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
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).
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).
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.
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).
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
Diversity Jurisdiction and Fraudulent Misjoinder
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).
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.
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