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McCarty v. Johnson & Johnson

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION


July 1, 2010

LYNN MARIE MCCARTY AND LARRY DALE MCCARTY, PLAINTIFF,
v.
JOHNSON & JOHNSON, DEPUY, INC., DEPUY ORTHOPAEDICS, INC., STEVE WHITFIELD AND DOES 1 THROUGH 100, DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER GRANTING PLAINTIFFS' MOTION TO AMEND COMPLAINT TO JOIN DEFENDANT AND REMAND TO STATE COURT

Complaint Filed: December 15, 2009 Trial Date: unassigned Assigned to:

Hon. Oliver W. Wanger

Date: June 14, 2010

Time: 10:00 a.m. Dept.:

Hon. Oliver W. Wanger, Courtroom 3

On June 14, 2010, plaintiffs' motion to amend complaint to join defendant and remand to state court came before this court for hearing. The court having reviewed and considered the moving papers and the parties' oppositions thereto and having heard oral argument, and GOOD CAUSE APPEARING, IT IS HEREBY ORDERED:

PROOF OF SERVICE

Defendant Steve Whitfield was not fraudulently joined to the strict liability claim, therefore this case is REMANDED to Fresno County Superior Court (Unlimited Jurisdiction) for lack of federal jurisdiction. Even if he were, plaintiffs can state a claim against San Joaquin Valley Orthopaedics, Inc. for strict liability.

Amendment to add San Joaquin Valley Orthopaedics, Inc. is proper because plaintiffs meet all six factors expressed in IBC Aviation Services v. Companies Mexicanna de Aviation, 125 F.Supp. 2d 1008 (N.D. Cal. 2000). Plaintiffs shall pursue amendment to join San Joaquin Valley Orthopaedics, Inc. as a defendant in Fresno County Superior Court (Unlimited Jurisdiction).

Plaintiffs' request for attorney's fees and costs is DENIED.

IT IS SO ORDERED.

20100701

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