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Kline v. Mentor Worldwide, LLC

United States District Court, E.D. California

July 18, 2019

ANA KLINE, an individual; EMMA LEE NICHOLS, an individual; KORIN ROBERTSON, an individual; and CAROLINE VANSKAIK, an individual; Plaintiffs,
v.
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

         Plaintiffs 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.

         Presently before the court is plaintiffs' Motion to Remand. (Docket No. 8.)

         I. Factual and Procedural Background

         This 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.

         Plaintiffs filed this action in Sacramento County Superior Court on May 6, 2019. (Mot. to Remand at 1.)

         Immediately 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.)

         II. Legal Standard

         “[A]ny 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 citation omitted).

         Federal 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)).

         III. Discussion

         Plaintiffs 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. 1).)

         Plaintiffs' 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 ...


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