United States District Court, D. Nevada
before the court is individual plaintiffs' motion to
remand. (ECF No. 21). Defendants Baxter Healthcare
Corporation; McKesson Medical-Surgical Inc.; Sicor, Inc.; and
Teva Parenteral Medicines, Inc. (collectively
“defendants”) responded (ECF No. 23), to which
plaintiffs replied (ECF No. 24).
before the court is defendants' motion for leave to file
response to plaintiffs' supplemental authority (ECF No.
25) and request for judicial notice of supplemental authority
(ECF No. 26). Plaintiffs have not replied.
plaintiffs in this action are individuals who 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.
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.
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.
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).
December 10, 2018, defendants removed this action to federal
court. Id. The court now determines whether it has
subject matter jurisdiction.
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).
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.
“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.
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 398, 403-04 (9th Cir. 1996); Gaus v. Miles,
Inc., 980 F.2d 564, 566-67 (9th Cir. 1992).