United States District Court, C.D. California
Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT
CIVIL MINUTES - GENERAL
IN CHAMBERS - COURT ORDER
the Court is a Motion to Remand filed by Plaintiff David
Bakos (“Plaintiff”). (Docket No. 9-1.) Defendants
Ethicon Endo-Surgery, Inc., Maggie Cox, and Andrea Henson
(“Removing Defendants”) filed a Notice of
Removal, removing this case to this Court. (Docket No. 1.)
Pursuant to Rule 78 of the Federal Rules of Civil Procedure
and Local Rule 7-15, the Court finds that this matter is
appropriate for decision without oral argument. The hearing
calendared for September 16, 2019 is vacated, and the matter
taken off calendar.
Complaint, Plaintiff alleges that on April 9, 2019, he
underwent a surgery that required Plaintiff's surgeon to
create an anastomosis following the procedure. (Docket No.
1-2 (“Compl.”) ¶ 22.) To create the
anastomosis, Plaintiff alleges his surgeon used a defective
Ethicon curved intraluminal stapler. (Id.) Plaintiff
claims this stapler caused “severe injuries to
Plaintiff when it failed to create a proper anastomosis
because of the ejection of a malformed stapler or uncut
washer.” (Id.) Following his surgery,
Plaintiff initiated this action in California state court
against corporate defendants Johnson & Johnson, Ethicon
Inc., and Ethicon Endo-Surgery, Inc. (“Corporate
Defendants”) and individual defendants Jamie Wells,
Maggie Cox, Jason Clarke, Isaac Wojcik, and Annie Henson
(“Individual Defendants”). (Id. ¶
1.) Plaintiff alleges four causes of action: (1) products
liability, (2) negligence, (3) intentional misrepresentation,
and (4) negligent misrepresentation. (Id.
alleges that each Individual Defendant “is associated
with” Corporate Defendants and engages in the
“advertisement, promotion, marketing, sales, and/or
distribution of the curved intraluminal staplers in the State
of California, and specifically in the greater Los Angeles
area.” (Compl ¶¶ 10-14, 16.) According to the
Complaint, Plaintiff is a citizen of California, and all of
the Individual Defendants are citizens of California.
(Id. ¶¶ 6, 10-14.) Johnson & Johnson
and Ethicon, Inc. are incorporated under the laws of New
Jersey and have their principal places of business in New
Jersey. (Notice of Removal ¶ 12 n. 3.) Ethicon
Endo-Surgery, Inc. is incorporated under the laws of Ohio and
has its principal place of business in Ohio. (Id.
Defendants filed their Notice of Removal on August 23, 2019.
(Docket No. 1.) Although Removing Defendants concede
Individual Defendants are citizens of California - which
would preclude diversity jurisdiction pursuant to 28 U.S.C.
§ 1441(b) - Removing Defendants argue Plaintiff
fraudulently joined Individual Defendants. (Notice of Removal
¶ 7.) Plaintiff filed a Motion to Remand on September 3,
2019, alleging Individual Defendants were not fraudulently
joined. (Docket No. 9.)
courts are courts of limited jurisdiction, having subject
matter jurisdiction only over matters authorized by the
Constitution and Congress.” See, e.g.,
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A suit filed in
state court may be removed to federal court if the federal
court would have had original jurisdiction over the suit. 28
U.S.C. § 1441(a). “The burden of establishing
federal jurisdiction is on the party seeking removal, and the
removal statute is strictly construed against removal
jurisdiction.” Prize Frize, Inc. v. Matrix (U.S.)
Inc., 167 F.3d 1261, 1265 (9th Cir. 1999).
“Federal jurisdiction must be rejected if there is any
doubt as to the right of removal in the first
instance.” Gaus v. Miles, Inc., 980 F.2d 564,
566 (9th Cir. 1992).
invoke this Court's diversity jurisdiction, Removing
Defendants must prove that (1) there is complete diversity of
citizenship between the parties, and (2) the amount in
controversy exceeds $75, 000. 28 U.S.C. § 1332. A
natural person must be a citizen of the United States and be
domiciled in a state to establish “state
citizenship” for diversity purposes. Kantor v.
Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir.
1983). Persons are domiciled in places they reside with the
intent to remain or to which they intend to return. See
Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th
Cir. 2001). For purposes of diversity jurisdiction, a
corporation is a citizen of any state where it is
incorporated and of the state where it has its principal
place of business. 28 U.S.C. § 1332(c).
Ninth Circuit recognizes an exception to the complete
diversity requirement where a defendant has been
“fraudulently joined.” Morris v. Princess
Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001).
Fraudulent joinder arises if a plaintiff “fails to
state a cause of action against a resident defendant, and the
failure is obvious according to the settled rules of the
state.” McCabe v. Gen. Foods Corp., 811 F.2d
1336, 1339 (9th Cir. 1987). If the Court finds that the
joinder of a non-diverse defendant is fraudulent, that
defendant's presence in the lawsuit is ignored for the
purposes of determining diversity. See, e.g.,
Morris, 236 F.3d at 1067.
is a presumption against finding fraudulent joinder, and
defendants who assert that plaintiff has fraudulently joined
a party carry a heavy burden of persuasion.” Plute
v. Roadway Package Sys., Inc., 141 F.Supp.2d 1005, 1008
(N.D. Cal. 2001). A claim of fraudulent joinder should be
denied if there is any possibility that the plaintiff may
prevail on the cause of action against the in-state
defendants. See id. at 1008, 1012. “The
standard is not whether plaintiffs will actually or even
probably prevail on the merits, but whether there is any
possibility that they may do so.” Lieberman v.
Meshkin, Mazandarani, No. C-96-3344 SI, 1996 WL 732506,
at *3 (N.D. Cal. Dec. 11, 1996). “In determining
whether a defendant was joined fraudulently, the court must
resolve ‘all disputed questions of fact and all
ambiguities in the controlling state law in favor of the
non-removing party.'” Plute, 141 F.Supp.2d
at 1008 (quoting Dodson v. Spiliada, 951 F.2d 40,
42-43 (5th Cir. 1992)). Further, “[a]ll doubts
concerning the sufficiency of a cause of action because of
inartful, ambiguous or technically defective pleading must be
resolved in favor of remand.” Id. citing Archuleta
v. American Airlines, Inc., No. CV 00-1286, 2000 WL
656808, at *4 (C.D. Cal. 2000).
court can look at evidence including declarations, a court
should remand a case “where a defendant raises a
defense that requires a searching inquiry into the merits of
the plaintiff's case, even if that defense, if
successful, would prove fatal.” Morris, 236
F.3d at 1066. “Accordingly, a defendant seeking removal
based on an alleged fraudulent joinder must do more than show
that the complaint at the time of removal fails to state a
claim against the non-diverse defendant.” Nation v.
Bayer Healthcare Pharmaceuticals, Inc., No. 13CV4689,
2013 WL 12144106, at *1 (C.D. Cal. Aug. 19, 2013).
“Remand must be granted ...