United States District Court, C.D. California
ORDER GRANTING PLAINTIFFS' MOTION TO REMAND (DKT.
23) AND DENYING AS MOOT PLAINTIFFS' MOTION FOR LEAVE TO
FILE AN AMENDED COMPLAINT (DKT. 24)
S. Fischer, United States District Judge
Abbott Laboratories and Abbott Laboratories, Inc.
(collectively, Abbott) removed this case based on diversity
jurisdiction. Dkt. 1 (Notice). Plaintiffs Cynthia Garey,
Shannon Garey, Erin Kelley, and Megan Mackelvie (Plaintiffs)
move for remand. Dkt. 23 (Mot.). Plaintiffs also seek leave
to file an amended complaint. Dkt. 24 (Leave Mot.). Abbott
opposes both motions. Dkts. 30 (Opp'n), 31 (Leave
Opp'n). The Court deems this matter appropriate for
decision without oral argument. See Fed. R. Civ. P.
78; Local Rule 7-15.
2006, Philip Garey, the husband of Plaintiff Cynthia Garey
and father of Plaintiffs Shannon Garey, Erin Kelley, and
Megan Mackelvie, received an implantable cardiac
defibrillator (ICD) to address an arrhythmia. Dkt. 1-1
(Compl.) ¶¶ 5, 23. ICDs correct both fast and slow
heart rates and contain a defibrillator that can shock the
heart to enable an appropriate rhythm to take over.
Id. ¶ 2. In 2015, after the battery in his 2006
ICD began to fail, Mr. Garey underwent surgery to implant a
new ICD manufactured by Abbott. Id. ¶ 24.
Although the lead that connected the ICD to Mr. Garey's
cardiac tissue had been recalled in 2011, it was left in
place during the 2015 surgery. Id. ¶¶ 6,
24. In 2016, Abbott issued a global medical device advisory
and recall for the 2015 ICD due to premature battery
depletion. Id. ¶ 8. In 2017, Mr. Garey was
informed that the recalled lead was failing and that he would
again need surgery. Id. ¶ 25. On April 12,
2017, the FDA sent a letter to Abbott warning that the ICD
software was not fully verified during the final
configuration test procedures. Id. ¶ 10. On May
19, 2017, Defendant Dr. Raymond Schaerf performed surgery to
replace the failing, recalled lead, and the recalled ICD.
Id. ¶¶ 26, 29. However, Schaerf was unable
to remove the recalled ICD, so he moved it to the other side
of Mr. Garey's chest. Id. ¶ 29. He was also
unable to remove the entirety of the old lead, and left the
fractured lead, as well as the tip of an extraction sheath
(the surgical tool used to take out the lead), inside Mr.
Garey. Id. ¶¶ 26, 29-30. Scharf notified
Mr. Garey that “a foreign body had been left inside
[his] chest cavity.” Id. ¶ 30.
25, 2017, Mr. Garey returned to Schaerf due to bleeding from
his surgical incisions. Id. ¶ 27. Schaerf did a
“complete analysis of the defibrillator system”
but failed to notify Mr. Garey that the ICD software was not
operating in accordance with its FDA approval. Id.
¶¶ 27-28. At some point thereafter, Schaerf, with
the assistance of Abbott employees, attempted to re-program
the recalled ICD. Id. ¶ 31. On August 6, 2017,
Mr. Garey had a cardiology consultation where it was
observed that his ICD was “functioning
inappropriately.” Id. ¶ 32. On August 13,
2017, remote diagnostics performed by Abbott's software
found the ICD to be functioning normally. Id. ¶
August 21, 2017, the ICD software misread Mr. Garey's
heart rate causing 70 high voltage shocks to be delivered to
Mr. Garey's heart within a three- or four-hour period.
Id. ¶ 34. The shocks “caused Mr. Garey to
scream in agony” and his family called 911.
Id. Because the ICD continued to inappropriately
shock Mr. Garey, the hospital had to forcibly turn it off
with a magnet. Id. ¶¶ 35, 37. However,
substantial damage had already occurred and Mr. Garey died
early the next morning. Id. ¶ 35.
courts are courts of limited jurisdiction” and
“possess only that power authorized by [the]
Constitution and statute . . . .” Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A
defendant may remove an action to federal court if the
federal court could exercise subject matter jurisdiction over
the action. 28 U.S.C. § 1441(a). “The removal
statute is strictly construed against removal
jurisdiction” and “[t]he defendant bears the
burden of establishing that removal is proper.”
Provincial Gov't of Marinduque v. Placer Dome,
Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). If a
defendant fails to meet its burden of establishing the Court
has subject matter jurisdiction, the suit is remanded. 28
U.S.C. § 1447(c).
courts have diversity jurisdiction where the amount in
controversy exceeds $75, 000 and the action is between
citizens of different states. 28 U.S.C. §§ 1332,
1441. For purposes of diversity jurisdiction, the Court
“may disregard the citizenship of a non-diverse
defendant who has been fraudulently joined.”
Grancare, LLC v. Thrower, 889 F.3d 543, 548 (9th
Cir. 2018). A non-diverse defendant is fraudulently joined
“[i]f the plaintiff fails to state a cause of action
against [the] resident defendant, and the failure is obvious
according to the settled rules of the state.”
Morris v. Princess Cruises, Inc., 236 F.3d 1061,
1067 (9th Cir. 2001) (first alteration in original) (quoting
McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th
Cir. 1987)). “[T]he test for fraudulent joinder and for
failure to state a claim under Rule 12(b)(6) are not
equivalent.” Grancare, 889 F.3d at 549.
Instead, “the standard is similar to the ‘wholly
insubstantial and frivolous' standard for dismissing
claims under Rule 12(b)(1) for lack of federal question
jurisdiction.” Id. In evaluating a claim of
fraudulent joinder, “a federal court must find that a
defendant was properly joined and remand the case to state
court if there is a ‘possibility that a state
court would find that the complaint states a cause of action
against any of the [non-diverse] defendants.'”
Id. (alteration in original) (emphasis in original)
(quoting Hunter v. Philip Morris USA, 582 F.3d 1039,
1046 (9th Cir. 2009)). In this inquiry, “the district
court must consider . . . whether a deficiency in the
complaint can possibly be cured by granting the plaintiff
leave to amend.” Id. at 550.
parties agree that the amount in controversy exceeds $75, 000
and that Schaerf and Plaintiffs are all citizens of
California. However, Abbott claims that Schaerf was
fraudulently joined. Plaintiffs bring one cause of action
against Schaerf for negligence, alleging that he failed to
provide health care within the acceptable standard in the
medical community when he broke the tip of the extractor
sheath during Mr. Garey's May 19, 2017 surgery, left the
extractor sheath and the fractured lead inside of Mr.
Garey's chest, and failed to advise Mr. Garey that those
items could cause complications. Compl. ¶¶ 62-70.
Abbott argues that this claim is barred by the statute of
limitations and causation is not adequately pled.
Statute of Limitations
an action for injury or death against a health care provider
based upon such person's alleged professional negligence,
the time for the commencement of action shall be three years
after the date of injury or one year after the plaintiff
discovers, or through the use of reasonable diligence should
have discovered, the injury, whichever occurs first.”
Cal. Civ. Proc. Code § 340.5. This provision
“establishes two hurdles, not one, to the timely
maintenance of a medical malpractice claim.” Hills
v. Aronsohn, 152 Cal.App.3d 753, 758 (1984). However, if
“a foreign body, which has no therapeutic or diagnostic
purpose or effect” is left in the injured person, Cal.
Civ. Proc. Code § 340.5, only the one-year discovery
period applies. Ashworth v. Mem'l Hosp., 206
Cal.App.3d 1046, 1058 (1988), reh'g denied and
opinion modified (Jan. 20, 1989) (The foreign body
exception “gives that patient an unlimited time to
discover or to use reasonable diligence to discover the
presence of the ‘foreign body.' But once the
patient discovers or through reasonable diligence would have
discovered the ‘foreign body' and its role in her
injury she only has one year to file her lawsuit against the
practitioners responsible for leaving the ‘foreign
body' inside her.”).
does not dispute that this action was brought within three
years of the date of injury (whether Mr. Garey's May 2017
surgery or August 2017 death). Instead, Abbott argues that
Plaintiffs' negligence claim against Schaerf is barred by
the one-year limitation period because Plaintiffs discovered,
or should have discovered, the injury either upon completion
of the May 19, 2017 surgery, Notice ¶ 32, or after Mr.
Garey's death on August 22, 2017, Opp'n at 6-7.
Specifically, Abbott argues that because Schaerf
“notified [Mr. Garey] that a foreign body had been left
inside [his] chest cavity” after the May 2017 surgery,
Compl. ¶ 30, his death ...