United States District Court, E.D. California
ANA KLINE, an individual; EMMA LEE NICHOLS, an individual; KORIN ROBERTSON, an individual; and CAROLINE VANSKAIK, an individual; Plaintiffs,
MENTOR WORLDWIDE, LLC; NUSIL, LLC; NUSIL TECHNOLOGY, LLC; and DOES 1-100, inclusive, Defendants.
ORDER RE: MOTION TO REMAND
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
assert claims arising out of injuries allegedly suffered as a
result of defects in breast implants manufactured by
defendant Mentor Worldwide, LLC (“Mentor, ”) with
silicon allegedly produced and supplied by defendants Nusil,
LLC and Nusil Technology, LLC. Following the filing of this
action in the Superior Court of California, County of
Sacramento, but before service could be completed, Mentor
removed the action.
before the court is plaintiffs' Motion to Remand. (Docket
Factual and Procedural Background
case is brought by four plaintiffs: Ana Kline, a citizen of
California; Emma Lee Nichols, a citizen of Mississippi; Korin
Robertson, a citizen of Pennsylvania; and Caroline Vanskaik,
a citizen of Florida. All four plaintiffs were implanted with
Mentor MemoryGel Silicon Gel Breast Implants, and all four
plaintiffs allege that because of the implantation they
suffered various illness and injuries, including, fatigue,
muscle pain, memory loss, autoimmune disfunction, migraines,
and night sweats. (Compl. ¶¶ 21, 24 & 31
(Docket No. 1-2).) Plaintiffs allege that their injuries were
proximately caused by the negligence of all three defendants.
They further allege claims for strict products liability
against all three defendants.
filed this action in Sacramento County Superior Court on May
6, 2019. (Mot. to Remand at 1.)
after that filing, plaintiff's counsel endeavored to
effectuate service on all defendants. (Id.) The
complaint alleges--without providing further details-that
because of a processing backlog, service could not be
effectuated for a period of ten (10) days. (Id. at
2.) On May 15, 2019, before service could be completed on
defendants, defendant Mentor removed this action.
(Id.) The next day, May 16, 2019, service was
effected on all named defendants. (Id.)
civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may
be removed by the defendant or the defendants, to the
district court of the United States for the district . . .
where such action is pending.” 28 U.S.C. §
1441(a). However, if “it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c). On a motion to
remand, the defendant bears the burden of showing by a
preponderance of the evidence that federal jurisdiction is
appropriate. Geographic Expeditions, Inc. v. Estate of
Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (internal
courts have original jurisdiction over cases where complete
diversity exists between the parties and the amount in
controversy exceeds $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332(a). To satisfy the requirements
for complete diversity, “each of the plaintiffs must be
a citizen of a different state than each of the
defendants.” Morris v. Princess Cruises, Inc.,
236 F.3d 1061, 1067 (9th Cir. 2001) (citing Caterpillar
Inc. v. Lewis, 519 U.S. 61, 68 (1996)).
do not dispute that the amount in controversy exceeds $75,
000. Rather, they argue that remand is required because there
is not complete diversity. On the face of plaintiffs'
complaint, it appears that complete diversity does not exist
between all parties since plaintiff Ana Kline and defendant
Nusil, LLC are both citizens of California. (See Compl
¶¶ 1 & 7.) Moreover, for the purposes of
Section 1332c(1), both plaintiff Korin Robertson and
defendant NuSil Technology LLC are citizens of Pennsylvania.
(See Compl. ¶ 3; Notice of Removal ¶ 12 (Docket No.
Motion to Remand disputes the Notice of Removal's claim
that NuSil, LLC is a fraudulently joined defendant whose
citizenship should be disregarded in determining whether
diversity exists. The parties also disagree as to ...