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Burns v. Boston Scientific Corp.

United States District Court, D. New Jersey

March 18, 2019

DENISE BURNS, Plaintiff,
BOSTON SCIENTIFIC CORP. dba and/or aka MANSFIELD SCIENTIFIC, INC., and/or MICROVASIVE, INC., Hereinafter the Removing Defendants, AND GEOFFREY BOWERS, M.D.; GARDEN STATE OBSTETRICAL & GYNECOLOGICAL ASSOCIATES; AXIA WOMEN'S HEALTH aka and/or dba AXIA WOMEN'S HEALTH CARE CENTER; VIRTUA HOSPITAL VOORHEES; and VIRTUA HEALTH aka and/or dba VIRTUA HEALTH SYSTEM, Hereinafter the Healthcare Provider Defendants, Removing AND Healthcare Provider Defendants Together comprising Defendants.


          Robert Kugler, United States District Court Judge.

         This is 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).

         The 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.

         In her 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.

         An appropriate Order accompanies this Opinion.


         On 25 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.

         On 8 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).

         Also, 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.

         On 21 August 2018, removing defendants filed a motion to sever the HPDs (ECF Doc. 10); on 4 September 2018, plaintiff filed her opposition.

         On 26 November 2018, by consent of the parties, discovery was stayed until a decision was rendered on the motions to remand and to sever.


         As the 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 improper joinder.

         2.1 Plaintiff

         Since 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 §1332(a)(1).

         To 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[1]. 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. 1446(b)(2)(A).

         In 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 verdicts.

         Plaintiff's 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.

         Plaintiff 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.

         2.1 Removing Defendants

         Removing 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 courts. .

         3.0 STANDARDS

         The 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[2] but improper joinder pursuant to the interplay of the removal statute 28 U.S.C. § 1441 and Rules 19, 20, and 21.

         3.1 ...

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