Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mercado v. Regents of University of California

United States District Court, N.D. California

October 16, 2014

JUAN MERCADO, et al., Plaintiffs,



Now pending before the Court is Plaintiffs Juan Mercado and Patsy Mercado's motion to remand. (Dkt. No. 9.) Plaintiffs contend that removal was improper because none of their state-law negligence and strict liability claims "arise under" federal law. After carefully considering the parties' submissions, and having had the benefit of oral argument on October 16, 2014, the Court GRANTS the motion and REMANDS this case to San Francisco County Superior Court.


Plaintiff Juan Mercado alleges that in May 2012, after liver transplant surgery at University of California San Francisco Medical Center ("UCSF"), a nurse at the hospital administering medicine through a catheter introduced air into his circulatory system-what is known as an "air embolism"-causing him to suffer cardiac arrest and a stroke. Plaintiffs filed a form complaint in state court in San Francisco in February 2013 alleging three causes of action: 1) a negligence claim against Defendant Regents of the University of California ("the Regents"); 2) a products liability claim against Defendant Arrow International, Inc. ("Arrow") for its defective design, manufacturing, and failure to warn; and 3) a loss of consortium claim against both the Regents and Arrow.

In May 2014, Arrow filed a motion for summary judgment on all product liability claims. Arrow asserted that its warnings regarding air embolisms were adequate as a matter of law and that it exercised reasonable care in the design and manufacture of the catheter. Arrow relied on Federal Drug Administration ("FDA") regulations and federal statutes regarding medical device labeling to show that Arrow's warnings were adequate and its design and manufacture consistent with industry standards. In their opposition to the motion filed two months later, Plaintiffs asserted that, even if the product itself contained adequate warnings, Arrow was still liable for its failure to warn UCSF (the purchaser) of the existence of other Arrow catheters that Plaintiffs contend are safer than the catheter used on Plaintiff.

Arrow removed this case to federal court three days after Plaintiffs filed their opposition to the summary judgment motion. This motion to remand to state court followed.


Subject to time constraints, defendants in a state court action may remove that action to federal court when the case could have originally been brought in federal court. 28 USC §§ 1441, 1446(b). Courts strictly construe the removal statute against removal jurisdiction, "and any doubt about the right of removal requires resolution in favor of remand." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). "The presumption against removal means that the defendant always has the burden of establishing that removal is proper." Id. (internal quotation marks omitted).

Congress has authorized the federal district courts to exercise original jurisdiction in "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A case can "aris[e] under" federal law in two ways. "Most directly, a case arises under federal law when federal law creates the cause of action asserted. As a rule of inclusion, this creation' test admits of only extremely rare exceptions, and accounts for the vast bulk of suits that arise under federal law[.]" Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013) (citations omitted). "But even where a claim finds its origins in state rather than federal law... we have identified a special and small category' of cases in which arising under jurisdiction still lies." Id. (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 (2006)).

The Supreme Court has described the latter inquiry as follows:

Does the "state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities"? That is, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.

Id. (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005)).


Arrow contends that Plaintiffs' state-law products liability claim "arises under" federal law because "the novel failure to warn' theories proffered by Plaintiffs would greatly impact the overall function and regulatory scheme of the FDA in its ability to carry out consistent oversight and regulation of the recall, advertising, branding, and labeling of prescription medical devices." (Dkt. No. 15 at 5.) Plaintiffs disagree, asserting that Arrow's alleged duty to warn is based on California law and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.