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Kevin Bryant v. Apotex

November 27, 2012

KEVIN BRYANT,
PLAINTIFF,
v.
APOTEX, INC., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO REMAND (Doc. #19)

Plaintiff Kevin Bryant ("Plaintiff") seeks an order remanding the action to Kern County Superior Court. (Doc. 19). Plaintiff argues that because there is a related case within the state court system, this Court should decline jurisdiction in this case. Defendant Apotex, Inc., opposes the motion and asserts the Court is vested with diversity jurisdiction. (Doc. 20).

The Court has read and considered the arguments presented and for the reasons set forth below, Plaintiff's motion to remand is DENIED.

I. Factual and Procedural Background

Plaintiff filed an action in Kern County Superior Court against the California Department of Corrections and Rehabilitation ("CDCR") and several of its employees on December 22, 2010. (Doc. 19 at 4). Plaintiff alleged "medical and professional negligence, deliberate indifference to his serious medical needs and fraud" for administering Gabapentin and Tramadol in crushed form, which Plaintiff argued caused "severe pain, esophagus damage and internal bleeding." Id. The court granted the defendants' motion for summary judgment on June 28, 2012. Id. Plaintiff asserts that he "is now 2 appealing" this determination to the Fifth District Court of Appeal but review of the docket of that 3 court does not reveal an active case for Plaintiff.*fn1 Id. 4

On May 9, 2012, Plaintiff initiated this action in the Kern County Superior Court. (Doc. 1, Exh. A). Plaintiff asserts Apotex, Inc., Actavis Elizabeth, LLC, Teva Pharmaceuticals USA, 6 American Health Packaging, Mylan Pharmaceuticals, Inc., Mylan Institutional, Inc. and Major 7

Pharmaceuticals, Inc. (collectively, "Defendants") are liable for general negligence, intentional tort, 8 products liability, and fraud for failure to warn about the dangers of administering Gabapentin and Tramadol in crushed form. (Doc. 1 at 2, 14). For these claims, Plaintiff seeks compensatory and punitive damages. Id. at 14.

On August 21, 2012, Actavis Elizabeth LLC filed a Notice of Removal, asserting the Court has diversity jurisdiction over the matter pursuant to 28 U.S.C. § 1332. (Doc. 1). All defendants consented to the removal of the action, thereby satisfying the rule of unanimity. (Doc. 1 at 2); see also Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 393 (1998) (the "rule of unanimity" requires that all defendants must join in a removal petition). The defendant asserted the civil action is between citizens of different states and the amount in controversy exceeds $75,000.00. Id. at 3.

Plaintiff filed his motion to remand on October 9, 2012, asserting the Court lacks jurisdiction over the matter. (Doc. 19). Defendant Apotex, Inc. ("Apotex") filed its opposition to the motion on October 22, 2012, asserting the Court has jurisdiction for the reasons set forth by Actavis Elizabeth LLC in the Notice of Removal. (Doc. 20).

II. Removal Jurisdiction

Pursuant to 28 U.S.C. § 1441(a), a defendant has the right to remove a matter to federal court where the district court would have original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 286, 392 (1987). Specifically, 2 Except otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending. 28 U.S.C. § 1441(a). District courts have "original jurisdiction of all civil actions arising under the 6 Constitution, laws, or treaties of the United States." Id. at § 1331.

A party seeking removal must file a notice of removal of a civil action within thirty days of 8 receipt of a copy of the initial pleading. Id. at § 1446(b). Removal statutes are to be strictly construed, 9 and any doubts are to be resolved in favor of state court jurisdiction and remand. See Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of proving its propriety. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); Abrego v. Dow Chem. Co., 443 F.3d 676, 683-85 (9th Cir. 2006); see also Calif. ex. rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 ("the burden of establishing federal jurisdiction falls to the party invoking the statute"). The Court may remand an action to state court for lack jurisdiction or for defect in the removal procedure. 28 U.S.C. § 1447(c).

III. Discussion and Analysis

A. The Court may exercise jurisdiction of the products ...


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