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Lucas v. Breg, Inc.

United States District Court, S.D. California

April 22, 2015

STACY LUCAS, an individual, et al., on behalf of themselves and all other similarly situated consumers, Plaintiffs,
v.
BREG, INC., a California corporation, et al., Defendants.

ORDER: (1) DENYING PLAINTIFFS' MOTION TO REMAND; AND (2) GRANTING DEFENDANTS' MOTION TO STRIKE THE DECLARATION OF MARC STERN

CYNTHIA BASHANT, District Judge.

INTRODUCTION

Under the Federal Class Action Fairness Act ("CAFA"), a district court may exercise jurisdiction over a class action if there is minimal diversity of citizenship between the parties, the proposed plaintiff class has at least 100 members, and the amount in controversy exceeds $5, 000, 000. 28 U.S.C. §1332. The parties agree that federal jurisdiction is proper in this case. However, the plaintiffs move to remand to state court, arguing that the defendants' notice of removal to federal court was not timely. ECF 7.

Although this Court shares the plaintiffs' concern that the defendants may well be forum shopping-choosing to remove after adverse rulings appear to be forthcoming from the state court judge-this is the cost the plaintiffs have assumed by filing an indeterminate pleading. Under Ninth Circuit law, the defendants' notice of removal was timely, and therefore the plaintiffs' motion to remand and for attorney's fees is DENIED.

STATEMENT OF FACTS

A. The Declaration of Marc Stern

The plaintiffs' attorney, Marc Stern, filed a Declaration in support of the motion to remand indicating that he has developed a "considerable body of information" about the defendants from his work as litigation counsel and offered his declaration "regarding Defendants and their relationships; the history of the development of Breg's PC500; the injuries associated with the product; and Breg's concealment of the considerable risk of injury associated with continuous use of the PC500 as recommended by Breg." Stern Decl. ¶ 2, ECF 7-1. The defendants move to strike this Declaration, correctly recognizing that it violates the advocate-witness rule. ECF 12. "The advocate-witness rule generally admits of only one solution to avoid the improprieties inherent in advocate testimony. Attorneys must elect in which capacity they intend to proceed, either as counsel or as a witness and promptly withdraw from the conflicting role." See United States v. Prantil, 764 F.2d 548, 553 (9th Cir. 1985).

Because the information detailed in Stern's Declarations is both irrelevant to the motion to remand and violates the advocate-witness rule, this Court GRANTS Defendants' Motion to Strike the Declaration of Marc Stern. ECF 12. However, this Court will take judicial notice of the documents filed in San Diego Superior Court in this case, in Engler v. Chao, Oasis, Breg, Inc., et al., and in Theriot v Breg, Inc., et al., as reflected in ECF 7, Exhibits 8, 14-23, and 25-31.

B. The Complaints

On June 13, 2011, the plaintiffs filed a putative class action in San Diego Superior Court on behalf of "all consumers [in California] and/or their insurers who purchased and/or rented BREG Polar Care products pursuant to a physician's prescription" from 1992 to the present. Compl. ¶¶ 2, 59, ECF 1-3. Those who suffered physical injury were excluded from the class. The complaint contains no mention of the potential number of class members or the potential damage requested per member.

On March 20, 2012, the plaintiffs filed their First Amended Complaint ("FAC") in state court, again on behalf of all consumers in California who purchased and/or rented BREG Polar Care products, excluding those who were physically injured. FAC ¶ 53, ECF 1-5. This time the plaintiffs specified that they were requesting replacement of each unit, which were valued between $70-$350. Id. at ¶ 19, ECF 1-5. Again, the complaint did not mention the potential number of class members.

On October 17, 2014, the plaintiffs filed a Second Amended Complaint ("SAC") in state court expanding the class to include "thousands of consumers throughout the United States and in California who specifically purchased and/or rented for personal use and not for resale, pursuant to a physician's prescription... cold therapy treatment." SAC ¶ 4, ECF 1-19. Again, those who suffered physical injury were excluded, and the plaintiffs alleged that "BREG is currently aware of more than 300 injuries." Id. at ¶¶ 9, 67. The plaintiffs sought reimbursement of the full amount of expenditures from the purchase and/or rental of the cold therapy treatment. Id. at ¶ 120.

Finally, on December 16, 2014, the plaintiffs filed and served a Third Amended Complaint ("TAC") in state court on behalf of:

All consumers in the United States, who any at any [sic] time during the period 1992 through the present, purchased and/or rented a BREG Polar Care 500 for personal use, and not for resale, pursuant to a licensed physician's prescription, and who, prior to purchasing and/or renting said product, were exposed to a statement and/or instruction from BREG, or a health care provider, that BREG's Polar Care 500 was safe and effective for continuous use and were ...

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