The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND ACTION (Document 9)
On April 7, 2009, Plaintiff Judith Hinds ("Plaintiff") filed the instant Motion to Remand to State Court. The matter was heard on May 8, 2009, before the Honorable Dennis L. Beck, United States Magistrate Judge. Matthew Faulkner appeared on behalf of Plaintiff. Michelle Fujimoto appeared telephonically on behalf of Defendants Zimmer, Inc. ("Zimmer") and Zimmer-Cook Associates, Inc. ("Zimmer-Cook").
Plaintiff filed this product liability action against Zimmer, Inc. ("Zimmer") and Zimmer-Cook Associates, Inc. ("Zimmer-Cook" or "Cook") in the Kern County Superior Court on December 23, 2008. Plaintiff alleges negligence, res ipsa loquitur, breach of express and implied warranties and strict product liability for injuries she suffered after undergoing a total hip replacement on December 26, 2006, using the Durom Hip Resurfacing System manufactured by Zimmer.
Defendants Zimmer and Zimmer-Cook answered the complaint on March 9, 2009.
On March 9, 2009, Defendants removed the action to this Court based on complete diversity of properly joined parties. In the notice of removal, Defendants contend that Zimmer-Cook is a sham defendant whose citizenship should be disregarded. Defendants state that there is no reasonable basis for imposing liability against Zimmer-Cook.
Plaintiff filed the instant motion for remand on April 7, 2009, arguing that Zimmer-Cook is a distributor of the Durom Cup and is properly named under California tort law.*fn1 Plaintiff also requests costs and attorneys's fees in the amount of $3,000.00 for defending against removal.
Defendants opposed the motion on April 24, 2009. Plaintiff filed her reply on April 28, 2009. On May 1, 2009, Defendants filed objections to evidence offered by Plaintiff in her reply.
According to the complaint, Zimmer is a Delaware corporation with its principal place of business in Indiana. Zimmer-Cook is a domestic corporation in California with its principal place of business in San Francisco. Plaintiff resides in Kern County, California.
Plaintiff underwent hip replacement surgery on December 26, 2006. Dr. James Grimes implanted the Durom Hip Resurfacing System ("Durom Cup"). Plaintiff alleges that Zimmer manufactured the Durom Cup and that Zimmer-Cook distributed, supplied and sold the Durom Cup. During the surgery, Roger Probasco, a sales representative of Zimmer-Cook, was present "to assure proper placement and implantation techniques of the [Durom Cup]." Complaint, ¶ 19.
Following the surgery, Plaintiff had persistent pain in her groin for over a year after the implant surgery. Dr. Grimes diagnosed Plaintiff with a failed left total hip arthroplasty, which required a revision left total hip arthroplasty. On July 15, 2008, Plaintiff underwent a revision of left total hip arthroplasty. Plaintiff alleges that as a direct and proximate result of Defendants Zimmer and Zimmer-Cook placing the defective product into the stream of commerce, she suffered and continues to suffer injuries and damages.
Plaintiff asserts causes of action against Defendants for (1) negligence (failure to warn); (2) res ipsa loquitur; (3) breach of express warranty; (4) breach of implied ...