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Theresa Oliver, et al v. Mcneil-Ppc

February 1, 2013

THERESA OLIVER, ET AL., PLAINTIFFS,
v.
MCNEIL-PPC, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Stanley A. Boone United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING PLAINTIFF'S MOTION TO REMAND (ECF Nos. 10, 27, 30) OBJECTIONS DUE WITHIN FIFTEEN DAYS

I. PROCEDURAL HISTORY

Plaintiffs Theresa Oliver and Bruce Anderson filed this action on October 9, 2012, in Fresno County Superior Court alleging negligence; strict liability for failure to warn; strict liability for defective design; breach of express warranty; breach of implied warranty for a particular purpose; breach of implied warranty of merchantability; violation of California Business and Professions Code, section 17200, et seq.; violation of California Business and Professions Code, section 17500, et seq.; deceit by concealment in violation of California Civil Code, sections 1709 and 1710; negligent misrepresentation; violation of California Civil Code, sections 1750 et seq.; wrongful death; and a survival action. (ECF No. 1.) Generally, Plaintiffs contend that Daniel Oliver and Mildred Barta ingested Tylenol, which is exclusively marketed by Defendant Johnson & Johnson, and were subsequently diagnosed with liver failure which resulted in their death.

Defendants removed the action to the Eastern District of California on November 13, 2012, under 28 U.S.C. §§ 1332 and 1441 contending that diversity jurisdiction exists in this action under the doctrine of fraudulent joinder. Defendants allege that Defendant McKesson Corporation ("Defendant McKesson") has been fraudulently joined and there is no possibility Plaintiff's can recover from Defendant McKesson based on the allegations in the complaint. (Notice of Removal 2, ECF No. 1.) Defendants filed a motion to dismiss and motion to sever and transfer the case on November 20, 2012. (ECF Nos. 4, 5.) On November 28, Plaintiff filed a first amended complaint addressing several allegations not included in the original complaint. (ECF No. 6.)

On November 30, 2012, Plaintiff filed the instant motion to remand to state court and a motion to stay the proceedings pending remand. (ECF Nos. 10, 11.) Defendants filed a second motion to dismiss, motion for change of venue, and renewed motion to sever on December 7, 2012. (ECF Nos. 16, 17.) Defendants' motions to dismiss, motions to sever, and motion to transfer venue were denied by the district judge without prejudice on January 25, 2012, due to the pending motion to remand. (ECF No. 25.) The district judge referred the motion for remand to the undersigned for findings and recommendations. On January 17, 2013, Defendants filed an opposition to the motion to remand. (ECF No. 27.) Plaintiff filed a reply on January 25, 2013.

This Court conducted a hearing on Plaintiff's motion to remand and motion to stay on February 1, 2013. Counsel Lowell Finson appeared by telephone for Plaintiffs Oliver and Anderson and counsel Sue Lyn Combs appeared by telephone for Defendants McNeil-PPC, Inc., Johnson & Johnson, and McKesson Corporation. The Court has read and reviewed the Plaintiffs' moving papers and Defendants' opposition, including all supporting documents. The Court further considered the arguments of counsel on the record. The following findings and recommendation hereby issues recommending granting Plaintiffs' motion to remand.*fn1

II. MOTION TO REMAND LEGAL STANDARD

"[A]ny 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 . . . to the district court of the United States for the district . . . where such action is pending." 28 U.S.C. § 1441(a). A notice of removal must be filed within thirty days of receiving the initial pleading setting forth the claim for relief, 28 U.S.C. § 1446(b), and in a case based upon diversity jurisdiction, the notice of removal must be filed within thirty days from which it was ascertained the case was removable, but not more than one year after the commencement of the action, 28 U.S.C. §§ 1446(b)(2)(C) and (c)(1).

District courts have original jurisdiction of all civil actions between citizens of different States in which "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a). This requires complete diversity of citizenship and the presence "of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action." Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 679 (9th Cir. 2006) (citations omitted). For the purposes of establishing diversity of citizenship, a corporation is deemed to be a citizen of every state in which it has been incorporated and where it has its principal place of business. 28 U.S.C. § 1332(c)(1).

"The removal statute is strictly construed against removal jurisdiction." Provincial Gov't of Marinduque, 582 F.3d at 1087. If the district court determines that it lacks jurisdiction, the action should be remanded back to the state court. Martin v. Franklin Capital Corp., 546 U.S. 132, 134 (2005).

III. DISCUSSION

A. Diversity of the Parties

The residency of the parties is undisputed. Plaintiff Oliver is a resident of California and Plaintiff Bruce is a resident of Texas. (Compl. ¶¶ 2, 4, ECF No. 1.) Therefore, diversity jurisdiction will not exist if any named defendant is a resident of the States of California or Texas. Defendant McNeil-PPC is a resident of Pennsylvania and Defendant Johnson & Johnson is a resident of New Jersey. (Notice Of Removal ¶¶ 11, 12, ECF No. 1.) Defendant McKesson is incorporated in the State of Delaware, with a principal place of business in California, and is therefore a citizen of Delaware and California for diversity purposes. (ECF No. 1 at ¶ 13; Notice of Removal ¶ 16.) Since Plaintiff Oliver and Defendant McKesson are both residents of California, diversity ...


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