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Title: Marilyn v. Bedros H. Kojian

April 12, 2013

TITLE: MARILYN GOODWIN
v.
BEDROS H. KOJIAN, ET AL.



The opinion of the court was delivered by: Honorable Josephine Staton Tucker, United States District Judge

JS-6

CIVIL MINUTES -- GENERAL

Present: Honorable JOSEPHINE STATON TUCKER, UNITED STATES DISTRICT JUDGE

Terry Guerrero N/A Deputy Clerk Court Reporter ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT: Not Present Not Present PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING PLAINTIFF'S MOTION TO REMAND (Doc. 10) AND DENYING DEFENDANT'S MOTION TO STAY AS MOOT (Doc. 11)

Before the Court are two motions: (1) A Motion to Remand ("MTR") filed by Plaintiff Marilyn Goodwin; and (2) A Motion to Stay Case Pending Transfer by the Judicial Panel on Multidistrict Litigation ("MTS") filed by Defendant American Medical Systems ("AMS" or "Defendant"). (MTR, Doc. 10; MTS, Doc. 11.) Plaintiff's MTR was filed on March 14, 2013, Defendant opposed the MTR (Opp'n to MTR, Doc. 16), and Plaintiff replied. (Reply to MTR, Doc. 17.) Defendant filed its MTS on March 15, 2013, Plaintiff opposed the MTS (Opp'n to MTS, Doc. 15), and Defendant replied. (Reply to MTS, Doc. 18. ) The Court finds this matter appropriate for disposition without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. R. 7-15. Accordingly, the hearing set for April 19, 2013, at 2:30 p.m. is VACATED. Having considered the parties' papers and for the reasons discussed below, the Court GRANTS Plaintiff's MTR and DENIES Defendant's MTS as MOOT.

I.Background

Prior to August 22, 2012, Plaintiff consulted with Defendant Dr. Kojian about her pelvic organ prolapse and stress urinary incontinence. (Stanley Decl. Ex. A ("Compl.") ¶ 37. Doc. 4.) Dr. Kojian recommended and performed the implantation of two pelvic mesh products, the Monarc® Subfascial Hammock and the Elevate® Anterior & Apical Prolapse Repair System with Interpro®Lite ("Mesh Products"). (Compl. ¶¶ 37-39; MTR at 2.) Defendant AMS designed, manufactured, marketed, labeled, packaged, and/or sold these Mesh Products implanted into Plaintiff. (Compl. ¶ 10.)

Plaintiff alleges that Kojian negligently chose these products to treat her condition even though the products "[have] high failure, injury, and complication rates, fail to perform as intended, require frequent and often debilitating additional surgeries, and have caused severe and irreversible injuries, conditions, and damage to a significant number of women." (Id. ¶ 48(D).) As a result of this implantation, Plaintiff alleges that she suffered numerous complications. (Id. ¶ 41.)

On January 9, 2013, Plaintiff filed this case in Orange County Superior Court (No. 30-2013-00622920-CU-PL-CJC), asserting a medical malpractice claim against Kojian and product liability claims against AMS. (Compl.) Kojian is a California citizen, as is Plaintiff, while AMS is a citizen of Delaware and Minnesota. (Compl. ¶¶ 1-3.) Defendants removed the case on February 22, 2013, asserting diversity jurisdiction and claiming that Kojian was "fraudulently misjoined." (Notice of Removal ¶ 6.) Kojian has not yet made an appearance in this case and Defendant stated in its Notice of Removal that it believed Kojian had not yet been served with a copy of the Summons and Complaint. (Id. ¶ 4.)

A multidistrict litigation proceeding ("MDL") has been established in the Southern District of West Virginia to coordinate product liability actions involving AMS's pelvic mesh products. See In re AMS Pelvic Repair Sys. Prods. Liab. Litig., 844 F. Supp. 2d 1359 (J.P.M.L. 2012). AMS provided notice to the MDL Panel of this action, and the Panel issued a Conditional Transfer Order on March 8, 2013. (Second Stanley Decl. ¶ 5, Doc. 11-3; id. Ex. B.) Plaintiff filed a Notice of Opposition to the transfer, and it appears that there will be a hearing shortly on the issue of transfer. (MTS at 2-3.) Shortly after the Conditional Transfer Order was issued, Plaintiff filed her MTR, and Defendant filed its MTS.

II.Preliminary Issues

The parties dispute the order in which the Court should address their Motions. Plaintiff argues that her MTR addresses jurisdictional defects, which must be addressed before Defendant's MTS. (Opp'n to MTS at 3.) Defendant argues that the Court should address its MTS first, and leave the MTR to the MDL Panel. (Opp'n to MTR at 4.)

Under Ninth Circuit caselaw, "federal courts normally must resolve questions of subject matter jurisdiction before reaching other threshold issues. Only where the other issue itself creates the jurisdictional issue . . . or the resolution of the issue is clear while the jurisdictional issue is difficult, . . . is it appropriate for the court to proceed without confirming jurisdiction." Potter v. Hughes, 546 F.3d 1051, 1061 (9th Cir. 2008). Moreover, "a district judge should not automatically stay discovery, postpone rulings on pending motions, or generally suspend further rulings upon a parties' motion to the MDL Panel for transfer and consolidation" Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997); JPML Rule 2.1(d) ("[t]he pendency of a . . . conditional transfer order . . . before the Panel pursuant to 28 U.S.C. § 1407 does not affect or suspend orders and pretrial proceedings in any pending federal district court action and does not limit the pretrial jurisdiction of that court."). The decision to grant or deny a stay is within the district court's discretion. Rivers, 980 F. Supp. at 1360.

In ruling on motions to stay, district courts have considered several factors: (1) "the court should give preliminary scrutiny to the merits of the motion to remand. If this preliminary assessment suggests that removal was improper, the court should promptly complete its consideration and remand the case to state court"; (2) "if the jurisdictional issue appears factually or legally difficult, the court should determine whether identical or similar jurisdictional issues have been raised in other cases that have been or may be transferred to the MDL proceeding"; (3) "if the jurisdictional issue is both difficult and similar or identical to those in cases transferred or likely to be transferred, the court should stay the ...


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