United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE
before the Court is the Motion to Remand, (ECF No. 9),
filed by Plaintiffs Yvette Adams, Margaret Adymy, Thelma
Anderson, John Andrews, Maria Artiga, Lupita Avila-Medel,
Henry Ayoub, Joyce Bakkedahl, Donald Becker, James Bedino,
Edward Benavente, Margarita Benavente, Susan Biegler, Kenneth
Burt, Margaret Calavan, Marcelina Castaneda, Vickie
Cole-Campbell, Sherrill Coleman, Nancy Cook, and James Duarte
(collectively “Plaintiffs”). Defendants Teva
Parenteral Medicines, Inc., Sicor, Inc., Baxter Healthcare
Corporation, and McKesson Medical Surgical, Inc.
(collectively “Defendants”) filed a Response,
(ECF No. 14), and Plaintiffs filed a Reply, (ECF No. 15).
reasons that follow, the Court GRANTS
Plaintiffs' Motion to Remand.
are adult individuals who underwent treatment at a medical
center in Las Vegas, Nevada (the “Clinic”)
between 2004 and 2008 for endoscopy procedures. (See
Compl. ¶¶ 7-8, Ex. A to Pet. for Removal, ECF No.
1-1). Under the care of the Clinic's health care
providers, Plaintiffs were injected with propofol, an
anesthetic drug manufactured, marketed, distributed, and sold
by Defendants to the Clinic. (Id. ¶¶ 2-4,
February 28, 2008, the Southern Nevada Health District sent a
letter to 60, 000 former Clinic patients, including
Plaintiffs, stating they were at risk of exposure to
bloodborne pathogens. (Id. ¶ 15). The letter
recommended that all persons who received an injection at the
[Clinic] between March of 2004 and January of 2008, ”
as well as their spouses, be tested for Hepatitis B,
Hepatitis C, and HIV. (Id. ¶ 11). Plaintiffs
obtained the recommended testing and ultimately learned they
were infection-free. (Id. ¶ 13). In doing so,
Plaintiffs incurred medical bills and other out-of-pocket
expenses, and endured emotional distress, anxiety, and fear
during the pendency of their respective test results.
(Id. ¶ 17). According to the Complaint, at all
relevant times to this action, Defendants knew or should have
known that the Clinic's practices “involved the
re-use of injection syringes and anesthesia bottles, ”
creating a “foreseeable risk of
infection/cross-contamination between patients with whom said
syringes and anesthesia bottles were shared.”
(Id. ¶ 9).
filed this action in state court on July 26, 2018, bringing
the following causes of action against Defendants: (1) strict
product liability; (2) breach of the implied warranty of
fitness for a particular purpose; (3) negligence; (4)
violation of the Nevada Deceptive Trade Practices Act; and
(5) punitive damages. (Id. ¶¶ 19-60). On
December 10, 2018, Defendants removed the case here on the
grounds of diversity and federal-question jurisdiction.
(See Pet. for Removal, ECF No. 1). Shortly
thereafter, Plaintiffs filed the instant Motion requesting
that the Court remand this action back to state court.
(See Mot. to Remand, ECF No. 9).
courts are courts of limited jurisdiction, possessing only
those powers granted by the Constitution and by statute.
See United States v. Marks, 530 F.3d 799, 810 (9th
Cir. 2008) (citation omitted). For this reason, “[i]f
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). District
courts have subject-matter jurisdiction in two instances.
First, district courts have subject-matter jurisdiction over
civil actions that arise under federal law. 28 U.S.C. §
1331. Second, district courts have subject-matter
jurisdiction over civil actions where no plaintiff is a
citizen of the same state as a defendant and the amount in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a).
defendant may remove an action to federal court only if the
district court has original jurisdiction over the matter. 28
U.S.C. § 1441(a). “Removal statutes are to be
‘strictly construed' against removal
jurisdiction.” Nevada v. Bank of Am. Corp.,
672 F.3d 661, 667 (9th Cir. 2012) (quoting Syngenta Crop
Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002)).
“The ‘strong presumption against removal
jurisdiction means that the defendant always has the burden
of establishing that removal is proper,' and that the
court resolves all ambiguity in favor of remand to state
court.” Hunter v. Philip Morris USA, 582 F.3d
1039, 1042 (9th Cir. 2009) (quoting Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir.1992) (per curiam)).
move to remand this action on the basis that the Court is
without subject-matter jurisdiction. (See generally
Mot. to Remand, ECF No. 9). Defendants oppose Plaintiffs'
Motion, contending this Court enjoys both diversity
jurisdiction, as well as federal-question jurisdiction.
(Defs.' Resp. to Mot. to Remand (“Resp.”)
4:6-9:13, ECF No. 14).
Court begins with diversity jurisdiction, followed by
courts have diversity jurisdiction over all civil actions in
which the amount in controversy: (1) exceeds the sum or value
of $75, 000; and (2) is between citizens of different states.
28 U.S.C. § 1332(a). In the present case, it is
undisputed that complete diversity of citizenship exists
because no Plaintiff is a citizen of the same state as any
Defendant. (See Pet. for Removal ¶¶ 8-11,
ECF No. 1); ...