United States District Court, S.D. California
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.]
GONZALO P. CURIEL, United States District Judge
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. (Dkt. No. 44 at 2.)
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.
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.
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.
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.)
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.)
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.)
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.)
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
Motion to Transfer Venue
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 ...