The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND ACTION
On April 7, 2009, Plaintiffs Kathleen Lyles and Gary Lyles ("Plaintiffs") 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 Plaintiffs. Michelle Fujimoto appeared telephonically on behalf of Defendants Zimmer, Inc. ("Zimmer") and Zimmer-Cook Associates, Inc. ("Zimmer-Cook").
Plaintiffs filed this product liability action against Zimmer and Zimmer-Cook in the Kern County Superior Court on December 5, 2008. Plaintiffs allege negligence, res ipsa loquitur, breach of express and implied warranties, strict liability and loss of consortium for injuries suffered by Kathleen Lyles after she underwent a total hip replacement on December 5, 2006, using the Durom Hip Resurfacing System ("Durom Cup") manufactured by Zimmer.
Defendants Zimmer and Zimmer-Cook answered the complaint on March 11, 2009.
On March 12, 2009, Defendants removed the action to this Court based on complete diversity of properly joined parties. Defendants contend that Zimmer-Cook is a sham defendant whose citizenship should be disregarded.
Plaintiffs 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 Plaintiffs also request costs and attorneys' fees in the amount of $3,000.00 for defending against removal.
Defendants opposed the motion on April 24, 2009. Plaintiffs filed their reply on April 28, 2009. On May 1, 2009, Defendants filed objections to evidence offered by Plaintiffs in their 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. Plaintiffs reside in Kern County, California.
Plaintiff Kathleen Lyles underwent hip replacement surgery on December 5, 2006, during which Dr. James Grimes implanted the Durom Cup. Plaintiffs allege 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, p. 5.
Following the surgery, Plaintiff Kathleen Lyles had persistent pain in the groin, particularly noted when bending forward. On March 31, 2009, Dr. Grimes diagnosed Ms. Lyles with a failed total hip arthroplasty, which required a revision right total hip arthroplasty. On April 1, 2008, Ms. Lyles underwent a revision of right total hip arthroplasty. Plaintiffs allege that as a direct and proximate result of Defendants Zimmer and Zimmer-Cook placing the defective product into the stream of commerce, Plaintiff Kathleen Lyles suffered and continues to suffer injuries and damages.
Plaintiffs allege causes of action against Defendants for (1) negligence (failure to warn); (2) res ipsa loquitur; (3) breach of express warranty; (4) breach of implied warranty; (5) strict products ...