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Tapia v. Davol, Inc.

United States District Court, S.D. California

July 21, 2016

JESUS TAPIA, an individual, Plaintiff,
v.
DAVOL, INC., a corporation; BARD DEVICES, INC., a corporation; C.R. BARD, INC., a corporation, and DOES 1-50, Defendants.

          ORDER GRANTING DEFENDANTS’ MOTION TO TRANSFER VENUE TO THE UNITED STATES BANKRUPTCY COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA AND DENYING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS [DKT. NOS. 35, 36.]

          HON. GONZALO P. CURIEL, United States District Judge

         Before the Court is Defendants Davol, Inc., Bard Devices, Inc. and C.R. Bard, Inc.’s motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Dkt. No. 35.) Alternatively, Defendants also filed a motion to transfer venue to the United States Bankruptcy Court for the Central District of California. (Dkt. No. 36.) On May 12, 2016, the parties filed a joint motion to continue the hearing date on the motions informing the Court that a conditional settlement had been reached requiring approval of the bankruptcy trustee and the Bankruptcy Court.[1] (Dkt. No. 44 at 2.)

         Subsequently, Plaintiff Jesus Tapia (“Plaintiff”) filed an opposition to Defendants’ motion for judgment on the pleadings but did not file an opposition to Defendant’s motion to transfer venue. (Dkt. No. 46.) Due to a pending conditional settlement, Defendants filed a reply requesting that the Court defer ruling on the motion for judgment on the pleadings and transfer the case to the Bankruptcy Court for the Central District of California. (Dkt. Nos. 47, 48.) For the reasons stated below, the Court GRANTS Defendants’ motion to transfer venue and DENIES without prejudice Defendants’ motion for judgment on the pleadings.

         Background

         On January 27, 2015, Plaintiff filed a complaint against Defendants for personal injuries suffered as a proximate result of Defendants’ “negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, sale, and/or post-market surveillance and corrective action of the Bard Composix Kugel Hernia Repair Patch” (“Kugel Patch”). (Dkt. No. 1, Compl. ¶ 1.) On August 14, 2015, Plaintiff filed the operative first amended complaint (“FAC”). (Dkt. No. 19.)

         Defendants manufactured and sold the Kugel Patch for use in repairing hernias. (Id. ¶ 2.) Around December 15, 2005, Plaintiff underwent a hernia repair procedure during which the Kugel Patch was implanted. (Id. ¶ 37.) On or about January 27, 2013, Plaintiff was admitted to the emergency department at Menifee Valley Medical Center. (Id. ¶ 39.) He presented with redness and pain above his Kugel Patch surgical site. (Id.) He was diagnosed with abdominal wall mesh infection and abscess. (Id.) Around February 3, 2013, Plaintiff underwent emergency surgery to remove the Kugel Patch. (Id. ¶ 40.) During the removal procedure, it was noted that the plastic ring that supported the Kugel Patch broke and caused an enterotomy which led to an infection. (Id.)

         Around October 8, 2012, Plaintiff filed for Chapter 13 bankruptcy in the United States Bankruptcy Court for the Central District of California. (Dkt. No. 46-1, Tapia Decl. ¶ 2.) Because of his hospitalization and surgery due to the failure of the Kugel Patch, around January/February 2013, Plaintiff missed several months of work and incurred substantial medical bills. (Id. ¶ 4.) Around June 2013, Plaintiff notified his bankruptcy attorney that he could not comply with the Chapter 13 bankruptcy payment plan due to the financial hardship caused by injuries sustained by the Kugel Patch. (Id. ¶ 6.) He notified the bankruptcy court of the reasons why he could not comply with the payment plan and indicated he would be dismissing his Chapter 13 bankruptcy and refiling a Chapter 7 bankruptcy case. (Id. ¶ 7.) Plaintiff states that he mistakenly did not disclose the potential litigation because he did not know he had to. (Id. ¶ 8.)

         On July 25, 2013, Plaintiff filed for voluntary Chapter 7 bankruptcy in the United States Bankruptcy Court for the Central District of California (“Central District Bankruptcy Court”). (Dkt. No. 37, D’ RJN, Ex. A.) Plaintiff did not disclose his potential personal injury claim during the pendency of his bankruptcy, which he concedes. (Id., Ex. A (July 2013 Bankruptcy Petition Schedule B); id., Ex. B (Bankruptcy Docket listing no amendments to Schedule B); Dkt. No. 46-1, Tapia Decl. ¶ 8.) According to Plaintiff, at that time, it was not clear whether he could find an attorney to take his case. (Dkt. No. 46-1, Tapia Decl. ¶¶ 5, 9.) On November 4, 2013, following the Trustee’s determination that there were no assets available for distribution, the Bankruptcy Court entered an order discharging Plaintiff’s debts. (Dkt. No. 37, D’ RJN, Ex. B.)

         On January 27, 2015, Plaintiff filed the instant complaint in this Court. After two rounds of motions to dismiss, Defendants filed an answer on November 20, 2015. (Dkt. No. 29.) In preparation for Plaintiff’s deposition on March 18, 2016, Defendants discovered the bankruptcy proceedings. (Dkt. No. 36-2, Buhr Decl. ¶ 5.) At his deposition, Plaintiff confirmed that he believed he was injured by the Kugel Patch following his explant procedure in January 2013, but that he did not disclose his potential claims against Bard to the Bankruptcy Court or the bankruptcy trustee. (Id. ¶ 7.) On April 22, 2016, Plaintiff moved to have the bankruptcy re-opened, which was granted on April 27, 2016. (Dkt. No. 46-3, Brenes Decl. ¶¶ 10, 11.)

         On April 6, 2016, Defendants filed their motions for judgment on the pleadings and to transfer venue. (Dkt. Nos. 35, 36.) Defendants argue that because Plaintiff’s personal injury claim is now subject to proceedings in the United States Bankruptcy Court for the Central District of California, Plaintiff lacks standing to pursue this case. (Id.) On July 1, 2016, Plaintiff filed an opposition to Defendants’ motion for judgment on the pleadings but did not file an opposition to Defendants’ motion to transfer venue. (Dkt. No. 46.) In his opposition, Plaintiff does not dispute that because of the pending bankruptcy, the Trustee is the real party in interest for this litigation, not Plaintiff, and seeks leave to amend the complaint to add the Trustee as the Plaintiff. (Id. at 12-16.) He also admits that he failed to disclose his potential personal injury claim as part of his Chapter 7 bankruptcy, but his failure to list the personal injury claim was mistaken or inadvertent and equitable estoppel should not apply. (Id. at 16-21.)

         Defendants filed replies to both motions. (Dkt. Nos. 47, 48.) In their replies, Defendants request that the Court defer ruling on the motion for judgment on the pleadings due to the conditional settlement, and transfer the case to the Central District Bankruptcy Court so that all outstanding issues can be addressed.

         Discussion

         A. Motion to Transfer Venue

         “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil matter to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). In addition, a “district court may transfer a case or proceeding under title 11 [Bankruptcy Code] to a district court for another district, in the interest of justice or for the convenience of the parties.” 28 U.S.C. § 1412. While these two provisions are very similar, “the former provision affords deference to the plaintiff’s choice of forum whereas the latter provision carries a presumption in favor of the court in which ...


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