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McDowell v. Davol

July 10, 2008

HOMER MCDOWELL, PLAINTIFF,
v.
DAVOL, INC., C.R. BARD, INC., BLOUNT MERMORIAL HOSPITAL, JOHN R. REISSER, MD., AND EAST TENNESSEE MEDICAL GROUP, P.C., DEFENDANTS.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

VARLAN/SHIRLEY

MEMORANDUM AND ORDER

This civil action is before the Court on plaintiff's Motion to Remand to State Court [Doc. 6]; defendant Blount Memorial Hospital, Inc.'s ("Blount Memorial Hospital") Motion to Remand to State Court [Doc. 7]; and defendants Defendants Davol Inc. ("Davol") and C.R. Bard, Inc.'s ("Bard") Request of Oral Argument on Issue of Remand [Doc. 11]. Plaintiff originally filed a complaint against defendants in the Circuit Court for Blount County, Tennessee. [See Doc. 1-2]. Defendants Davol and Bard timely removed the case to this Court pursuant to 28 U.S.C. § 1441, claiming that plaintiff fraudulently joined the non-diverse defendants, and arguing that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 because, excluding the fraudulently joined parties, there is diversity of citizenship and the amount in controversy exceeds the Court's jurisdictional minimum. [See Doc. 1].

The Court has reviewed the pleadings and arguments, and for the reasons discussed herein, plaintiff's and defendant Blount Memorial Hospital's motions will be granted and the case will be remanded to the Circuit Court for Blount County, Tennessee. Additionally, because oral argument on the issue was not necessary, defendants Davol and Bard's motion for oral argument will be denied.

I. Relevant Facts

As the Court is required to do on a motion to remand, all questions of fact and ambiguities in the law will be resolved in favor of the non-removing party. Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) (quoting Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir.1994)).

Plaintiff, Homer McDowell, is a citizen of the state of Tennessee. [Doc. 1-59.*fn1 ]

Defendant Davol is incorporated and has its principal place of business in Rhode Island. [Id.] Defendant Bard is incorporated under the laws of New Jersey. [Id.] Defendants Blount Memorial Hospital, John R. Reisser, M.D., and East Tennessee Medical Group, P.C. (collectively "non-diverse defendants" or "healthcare defendants") are citizens of Tennessee. [Id.]

Plaintiff filed a complaint in the Circuit Court of Blount County, Tennessee alleging various causes of action that relate to plaintiff's injuries associated with his hernia repair operation. [See id.; see also Doc. 1-11 (original complaint).] This hernia repair operation occurred on November 27, 2006 at defendant Blount Memorial Hospital. [Doc. 1-59.] The surgery was performed by defendant Dr. Reisser, who was then an employee of defendant East Tennessee Medical Group, P.C. [Id.] Andy Bolton, a representative of defendant Bard was present in the operating room during plaintiff's surgery. [Id.]

During plaintiff's operation a hernia mesh patch, the Composix (r) Kugel Mesh patch ("Kugel Patch"), was implanted into his body. [Id.] The Kugel Patch was manufactured by Davol. [Id.] Bard, as the parent company of Davol, participates in the manufacture and distribution of the Kugel Patch. [Id.] Plaintiff alleges that the type of Kugel Patch inserted into his body had been recalled on March 31, 2006.*fn2 [Id.] Plaintiff experienced problems related to the surgery, including that the site where the patch was inserted never closed and that part of the patch protruded through the opening. [Id.] As a result, plaintiff was required to undergo further surgery to remove the Kugel Patch and repair his bowel which had been damaged by the defective patch. [Id.]

II. Analysis

An action may be removed from state to federal court only if it could have been brought there in the first place; that is, if the federal court would have original jurisdiction over the case. 28 U.S.C. § 1441(a). A federal court has original subject matter jurisdiction over two types of actions. The first type, which is not applicable here, involves those actions raising a federal question. See 28 U.S.C. § 1331. The second type involves those actions where there is complete diversity of citizenship and an amount in controversy greater than $75,000, excluding costs and fees. See 28 U.S.C. § 1332.

The party removing an action to federal court has the burden of showing that the federal jurisdictional requirements are satisfied. See Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th Cir. 1993). "When an action is removed based on diversity, we must determine whether complete diversity exists at the time of removal. Indeed, '[d]iversity jurisdiction attaches only when all parties on one side of the litigation are of a different citizenship from all parties on the other side of the litigation.'" Coyne, 183 F.3d at 492 (citations omitted).

In defendants Davol and Bard's notice of removal, they argue that removal is proper on the basis of diversity jurisdiction despite the three non-diverse defendants because plaintiff fraudulently joined each of those defendants and the claims against those defendants did not arise out of the same transaction or occurrence as the claims against Davol and Bard. [See Doc. 1.] Plaintiff seeks remand arguing that non-diverse parties were not fraudulently joined and the claims arise out of the same transaction or occurrence, and therefore, there is not complete diversity. [See Doc. 6]. Defendant Blount Memorial Hospital moves for remand arguing that this Court does not have jurisdiction over plaintiff's claim against it because, as a government entity, it is immune from suit except as ...


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