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Tipton v. Zimmer, Inc.

United States District Court, C.D. California

June 23, 2016

SHARLA TIPTON
v.
ZIMMER, INC. ET AL

         (IN CHAMBERS) ORDER DENYING PLAINTIFF'S MOTION TO REMAND [43]

          Present: Honorable BEVERLY REID O'CONNELL, United States District Judge

          CIVIL MINUTES - GENERAL

          Honorable BEVERLY REID O'CONNELL, United States District Judge

         I. INTRODUCTION

         Pending before the Court is Plaintiff Sharla Tipton's ("Plaintiff") Motion to Remand. (Dkt. No. 43 (hereinafter, "Remand").) After considering the papers filed in support of and in opposition to the instant Motion, the Court deems this matter appropriate for resolution without oral argument of counsel. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the following reasons, the Court DENIES Plaintiff's Motion.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background

         This lawsuit involves a personal injury matter arising from the use of Defendant Zimmer, Inc.'s prosthetic device, a NEX GEN LPS ("NEX GEN") knee implant, in two of Plaintiff's surgeries. Defendant Zimmer, Inc. is the parent company of Defendants Zimmer Holdings, Inc. and Zimmer Orthopedic Surgical Products, Inc.[1] (collectively, the "Zimmer Defendants"). (Dkt. No. 1 (hereinafter, "Removal"), Ex. A (hereinafter, "Compl.").)

         On June 8, 2004, surgeons replaced Plaintiff's right knee with a NEX GEN implant. (Compl. ¶ 11.) Plaintiff alleges that she experienced pain and swelling of the knee following this surgery. (See Compl. ¶ 12.)

         On January 8, 2013, Plaintiff's surgeon performed a revision surgery, in which the surgeon replaced her NEX GEN implant with a new NEX GEN implant. (See Compl. ¶¶ 11-12.) Plaintiff contends that, prior to this revision surgery, her surgeon stated that he would consult with "Mike, " a representative from Zimmer. (Compl. ¶ 12.) In a subsequent appointment, the surgeon hypothesized that Plaintiff's knee would improve. (Compl. ¶ 12.) However, Plaintiff's condition did not improve. (See Compl. ¶ 15.) Plaintiff contends that each Defendant had actual or constructive knowledge of the defects and failures of the NEX GEN implants she received. (Compl. ¶ 8.) Plaintiff also avers that, as a result of the implantation of the allegedly defective NEX GEN devices, she has suffered from mental, emotional, and bodily injuries. (Compl. ¶ 15.)

         B. Procedural History

         Plaintiff initiated this action on August 15, 2014, in the Superior Court of California, County of Los Angeles, against the Zimmer Defendants, Mike (Last Name Unknown), [2] and Does 1 through 100. (See generally Compl.) Plaintiff alleges six causes of action against the Zimmer Defendants, including: (1) negligence; (2) products liability; (3) strict liability; (4) strict liability for failure to warn; (5) breach of express and implied warranties; and, (6) fraud. (Compl. ¶¶ 13-61.) Four of Plaintiff's causes of action are brought against Individual Defendant Turner, including: (1) negligence; (2) strict liability for failure to warn; (3) breach of express and implied warranties; and, (4) fraud. (Compl. ¶¶ 13-17, 34-61.) The Zimmer Defendants filed an Answer to Plaintiff's Complaint on May 28, 2015, generally denying each of Plaintiff's allegations and stating thirty-seven affirmative defenses. (See Removal, Ex. B.) Plaintiff has not served the Complaint on Individual Defendant Turner, consequently Individual Defendant Turner has not answered Plaintiff's Complaint. (See Opp'n at 1.)

         On June 3, 2015, the Zimmer Defendants removed the action to this Court, asserting that the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332. (Removal at 1-2.) The parties subsequently engaged in fact discovery. Defendants claim that depositions of the doctors involved in Plaintiff's revision surgery demonstrate that Individual Defendant Turner did not contribute to Plaintiff's alleged injuries. (Opp'n at 9.)

         The Zimmer Defendants filed a Motion for Summary Judgment as to all claims on April 29, 2016, which is currently pending before the Court. (Dkt. No. 40.) A few weeks later, on May 18, 2016, Plaintiff filed the instant Motion to Remand, (Dkt. No. 43), which the Zimmer Defendants timely opposed on June 6, 2016, (see Dkt. No. 48). Plaintiff timely replied on June 13, 2016. (Dkt. No. 50 (hereinafter, "Reply").)

         III. LEGAL STANDARD

         Federal courts are of limited jurisdiction and possess only that jurisdiction as authorized by the Constitution and federal statute. Kokkonen v. Guardian Life Ins. Co. of Am.,511 U.S. 375, 377 (1994). Original jurisdiction may be established pursuant to the diversity statute, 28 U.S.C. § 1332. Under § 1332(a)(1), a federal district court has jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, " and the dispute is between citizens of different states. 28 U.S.C. § 1332(a)(1). The Supreme Court has interpreted § 1332 to require "complete ...


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