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Bridges v. Teva Parenteral Medicines, Inc.

United States District Court, D. Nevada

April 12, 2019

MAUREEN BRIDGES, et al., Plaintiffs,
v.
TEVA PARENTERAL MEDICINES, INC., et al., Defendants.

          ORDER

          JAMES C. MAHAN, UNITED STATES DISTRICT JUDGE

         Presently before the court is individual plaintiffs' motion to remand. (ECF No. 9). Defendants Baxter Healthcare Corporation; McKesson Medical-Surgical Inc.; Sicor, Inc.; and Teva Parenteral Medicines, Inc. (collectively “defendants”) responded (ECF No. 11), to which plaintiffs replied (ECF No. 12).

         Also before the court is defendants' motion for leave to file surreply. (ECF No. 14).

         I. Facts

         The plaintiffs in this action are individuals that received medical care at the Endoscopy Center (“clinic”) located at 700 Shadow Land, Clark County, Nevada. (ECF No. 1). Defendants supplied the clinic with medical products that the clinic would use in providing various anesthesia services. Id. The clinic improperly administered defendants' medical products by re-using injection syringes and anesthesia bottles, which created a foreseeable risk of infection or cross-contamination. Id.

         On or about February 28, 2008, the Southern Nevada Health District sent plaintiffs and approximately 60, 000 others a letter informing them that the clinic placed them at a risk of possible exposure to bloodborne pathogens. Id. The Health District recommended that plaintiffs' get tested for hepatitis C, hepatitis B, and HIV. Id. Plaintiffs followed the Health District's recommendation and eventually discovered that they did not contract any of the aforementioned diseases. Id.

         Plaintiffs believe that defendants' improper packaging of their medical products caused the clinic to improperly re-use syringes and bottles. Id. On April 11, 2016, plaintiffs offered to settle their claims in exchange for $4, 252, 500, which amounts to $2, 500 per plaintiff. (ECF No. 9). Defendants rejected plaintiffs' offer. Id.

         On October 1, 2018, plaintiffs initiated this action in state court, asserting four causes of action: (1) strict product liability; (2) breach of the implied warranty of fitness for a particular purpose; (3) negligence; and (4) violation of the Nevada Deceptive Trade Practices Act. (ECF No. 1).

         On December 10, 2018, defendants removed this action to federal court. Id. The court now determines whether it has subject matter jurisdiction.

         II. Legal Standard

         Pursuant to 28 U.S.C. § 1441(a), “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 the 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). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

         Upon notice of removability, a defendant has thirty days to remove a case to federal court once he knows or should have known that the case was removable. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citing 28 U.S.C. § 1446(b)(2)). Defendants are not charged with notice of removability “until they've received a paper that gives them enough information to remove.” Id. at 1251.

         Specifically, “the ‘thirty-day time period [for removal] . . . starts to run from defendant's receipt of the initial pleading only when that pleading affirmatively reveals on its face' the facts necessary for federal court jurisdiction.” Id. at 1250 (quoting Harris v. Bankers Life & Casualty Co., 425 F.3d 689, 690-91 (9th Cir. 2005) (alterations in original)). “Otherwise, the thirty-day clock doesn't begin ticking until a defendant receives ‘a copy of an amended pleading, motion, order or other paper' from which it can determine that the case is removable. Id. (quoting 28 U.S.C. § 1446(b)(3)).

         A plaintiff may challenge removal by timely filing a motion to remand. 28 U.S.C. § 1447(c). On a motion to remand, the removing defendant faces a strong presumption against removal, and bears the burden of establishing that removal is proper. Sanchez v. Monumental Life Ins. Co., 102 F.3d ...


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