United States District Court, D. New Jersey
Kugler, United States District Court Judge.
a personal injury action brought by Denise Burns [
“plaintiff”] against Boston Scientific Corp, et
al. [together “defendants”]. Before the Court are
the following: - defendants' motion under Federal Rule of
Civil Procedure [“Fed. R. Civ. P.” or
“Rule”] 12(b)(6) for failure of plaintiff's
complaint to state a claim (ECF Doc. 5); - plaintiff's
motion to remand this action to the Camden County Superior
Court (ECF Doc. 6); - removing defendants' motion under
Rules 20 and 21 to sever the medical malpractice claims
against the healthcare provider defendants (ECF Doc. 10).
Court considered both motions without oral argument pursuant
to Local Civil Rule [“L. Civ. R.”] 78.1. The
Court having considered the parties' submissions in
support of and opposing the motions, and for the reasons
below, plaintiff's motion to remand is
GRANTED for lack of federal jurisdiction.
Consequently, the Court refrains from deciding the motions to
dismiss and to sever the medical malpractice claims.
motion to remand, Plaintiff also seeks an award of
attorneys' fees and costs incurred by removing
defendants' removal to federal court. For the reasons
below, the Court DECLINES TO IMPOSE ATTORNEYS'
FEES AND COSTS on the removing defendants.
appropriate Order accompanies this Opinion.
BACKGROUND AND PROCEDURE
June 2018, plaintiff filed a complaint in the Superior Court
of New Jersey for Camden County [“state court
action”] against all defendants seeking product
liability claims against Boston Scientific and Microvasive
[“removing defendants”] and medical negligence
claims against the healthcare provider defendants
[“HPDs”]. Plaintiff alleges she was injured
because of two surgical procedures done by the HPDs to
implant into her body two separate medical devices
manufactured by removing defendants. On 29 June 2018,
plaintiff served the complaint on the HPDs, and on 2 July
2018, on removing defendants. Within the removal statute
deadline, on 1 August 2018, the removing defendants removed
the state court action to this Court.
August 2018, removing defendants filed a motion to dismiss
under Rule 12(b)6) (ECF Doc. 5); on 21 August 2018, plaintiff
filed an opposition (ECF Doc. 7); on 28 Aug 18, removing
defendants filed a reply (ECF Doc. 13).
on 8 August 2018, plaintiff filed a motion to remand this
action back to Camden County Superior Court [ECF Doc. 6]; on
21 August 2018, removing defendants filed their opposition.
August 2018, removing defendants filed a motion to sever the
HPDs (ECF Doc. 10); on 4 September 2018, plaintiff filed her
November 2018, by consent of the parties, discovery was
stayed until a decision was rendered on the motions to remand
and to sever.
PARTIES' CONTENTIONS IN THE MOTION TO REMAND
motion to remand calls into question federal court
jurisdiction over this action, deciding either the motion to
remand or the motion to sever first will govern the
Court's action in the other pending motions. Ultimately,
both the motion to remand and the motion to sever depend on
whether the HPDs were properly joined in plaintiff's
state court action under the permissive joinder requirements
of Rule 20(a). Plaintiff argues these were properly joined,
while, in their motion to sever, removing defendants assert
plaintiff asserts the HPDs were properly joined in the state
court action, she argues no federal jurisdiction obtains over
this action for two reasons. First, her complaint alleges
only state law claims of product liability, failure to warn,
design defect, medical negligence, etc. and cannot support
subject matter jurisdiction, leaving only the parties'
diversity as jurisdictional basis. 28 U.S. Code
establish diversity, the Court compares the citizenship of
the plaintiff with that of each defendant. The plaintiff is a
citizen of, and resides in, New Jersey. The removing
defendants are citizens of Delaware or Massachusetts. Each
healthcare provider defendant is a citizen of New
Jersey. Accordingly, plaintiff argues that
removal under 28 U.S. §1441 was improper because the
requirements of 28 U.S.C. 1332(a) were unmet. Plaintiff also
maintains removal to this Court was procedurally deficient
because removing defendants did not obtain consent from the
HPDs prior to removal, as required under 28 U.S.
defending against the motion to sever the HPDs, plaintiff
contends the HPDs are indispensable parties under Rule 19;
but her argument is not a model-of-clarity. In essence,
plaintiff relies on Rule 21 to state that, in this action,
HPDs must be found dispensable in order to be severed, and
asserts, without more, they cannot be so categorized because
severing them creates the risk of inconsistent and unjust
argument that HPDs were properly joined under Rule 20 and
N.J. Court Rules 4:28 - 4:29 is more easily followed and
relies on the assertion that product liability claims and the
medical negligence claims necessarily arise out of the same
transaction, namely, the implantation by the HPDs of the
medical devices manufactured by removing defendants.
Plaintiff contends although the different classes of
defendants-the medical device manufacturers vs. the health
care providers-- may be liable under different causes of
action, liability nonetheless depends on the same
transaction, namely, the implantation of a medical device
that was defectively designed and defectively warned about,
which necessarily contributes to the negligent surgical
conduct. She avers discovery as to design defect, failure to
warn, product liability and medical negligence will
necessarily involve seeking inter-related information from
both classes of defendants. Thus, plaintiff alleges the HPDs
were properly joined and were neither notified nor consented
to the removal.
further argues severing her claims against the HPDs before
resolving this Court's jurisdiction over this action will
unfairly prejudice her. She acknowledges severing a party is
within the court's jurisdiction under Rule 21 but also
points out that, under Rule 19(a), parties must be joined
when a court could not “accord complete relief among
existing parties” without the possibility of
“incurring …multiple, or otherwise inconsistent
obligations.” Rule 19(a)1(A)ii.
defendants argue, since plaintiffs improperly joined the HPDs
in her state action complaint, not only was removal proper
but this Court should first sever the HPDs from this action,
which would then preserve diversity jurisdiction and result
in a denial of plaintiff's motion to remand. They contend
HPDs are improperly joined as the medical negligence claims
against the HPDs do not satisfy the requirements of
permissive joinder under Rule 20(a)(2). They cannot arise
from the same transaction as the product liability claims
because 1) the alleged design defect and failure to warn
occurred earlier than the implantation of the medical device,
concern different conduct, and cannot implicate judicial
economy in discovery; and, 2) plaintiff will not be
prejudiced if the HPDs are severed because both the state and
federal actions would still proceed in nearby New Jersey
Court agrees with both parties that the key to deciding
whether to sever first or to remand first is resolution of
the permissive joinder under Rule 20(a)2 of the HPDs. As a
preliminary matter, this Court acknowledges these motions do
not implicate either fraudulent joinder or fraudulent
misjoinder but improper joinder pursuant to the
interplay of the removal statute 28 U.S.C. § 1441 and
Rules 19, 20, and 21.