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Dooley v. Medtronic, Inc.

United States District Court, W.D. Tennessee, Western Division

July 17, 2014


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[Copyrighted Material Omitted]

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Jimmy Moore, Miscellaneous, Pro se, Memphis, TN.

For Timothy Dooley, Plaintiff: Adam T. Funk, LEAD ATTORNEY, Albuguerque, NM; Gregory Joe Bubalo, Leslie M. Cronen, LEAD ATTORNEYS, BUBALO GOODE SALES & BLISS, PLC, Louisville, KY; Kevin J. Renfro, LEAD ATTORNEY, BECKER LAW OFFICE, Louisville, KY; Margaret Moses Branch, Turner W. Branch, LEAD ATTORNEYS, THE BRANCH LAW FIRM, Albuquerque, NM; Marlene J. Goldenberg, LEAD ATTORNEY, Minneapolis, MN; Stuart L. Goldenberg, LEAD ATTORNEY, GOLDENBERG LAW, PLLC, Minneapolis, MN.

For Medtronic, Inc., Defendant: Andrew E. Tauber, LEAD ATTORNEY, PRO HAC VICE, MAYER BROWN LLP - Washington, DC, Washington, DC; Daniel L Ring, LEAD ATTORNEY, MAYER BROWN LLP, Chicago, IL; Leo Maurice Bearman , Jr., LEAD ATTORNEY, Robert F. Tom, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, Memphis, TN; Sean P. Fahey, LEAD ATTORNEY, LAW FIRM OF PEPPER HAMILTON LLP, Philadelphia, PA.

For Medtronic Sofamor Danek USA, Inc., Defendant: Robert F. Tom, LEAD ATTORNEY, Leo Maurice Bearman , Jr., BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, Memphis, TN.

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JOHN T. FOWLKES, JR., United States District Judge.

Before the Court comes Plaintiff Timothy Dooley's Motion to Remand, filed on June 3, 2014. (Pl.'s Mot. Remand, ECF No. 12). On June 22, 2014, Defendants Medtronic, Inc. and Medtronic Sofamor Danek USA, Inc. filed their Response in Opposition to Plaintiff's Motion. (Defs.' Opp'n to Mot. Remand, ECF No. 13). Plaintiff filed his Reply Brief in Support of his Motion to Remand on July 14, 2014. (Pl.'s Reply to Mot. Remand, ECF No. 22). After reviewing the Motion and the entire record, the Court DENIES Plaintiff's Motion to Remand.


On May 5, 2014, Plaintiff Timothy Dooley filed his Complaint against Defendants Medtronic, Inc. (" Medtronic" ) and Medtronic Sofamor Danek USA, Inc. (" MSD" ) in the Circuit Court of Tennessee for the Thirtieth Judicial District at Memphis, Shelby County (" Circuit Court" ). The causes of action are based upon Plaintiff's allegations that Defendants improperly and illegally promoted and sold a bio-engineered bone graft device, the Infuse® Bone Graft/LT-Cage(tm) Lumbar Tapered Fusion Device (" Infuse® " ), for unapproved and unreasonably dangerous surgical applications, which caused serious and permanent injuries to Plaintiff. Specifically, Plaintiff contends that, because the Infuse® was allegedly used in a manner inconsistent with the Food and Drug Administration's (" FDA" ) approval of the device, Defendants should be found liable for, inter alia, fraudulent use and promotion of the Infuse® through an off-label manner.

Plaintiff alleges eight state law causes of action: (1) fraudulent concealment, misrepresentation, and fraud; (2) failure to

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warn; (3) strict products liability--design defect; (4) negligent misrepresentation; (5) product liability--negligence; (6) breach of express warranty; (7) breach of implied warranty; and (8) various punitive damages. Plaintiff requests general damages " in an amount exceeding the jurisdictional limits of [Circuit Court] and the diversity jurisdictional limits of the U.S. District Court to be proven at trial," various past and future damages, and consequential damages. (Def.'s Not. Removal, 187, ECF No. 1-1).

Defendant Medtronic removed the case to the Western District of Tennessee, Western Division on May 6, 2014. (Def.'s Not. of Removal, ECF No. 1). Subsequently, on May June 3, 2014, Plaintiff filed his Motion to Remand the case. Plaintiff argues this case was improperly removed from state court based on both diversity and federal question jurisdiction. Specifically, Plaintiff avers that, although she is aware this Court ruled in Jenkins v. Medtronic, Inc., 984 F.Supp.2d 873 (W.D. Tenn. Nov. 21, 2013), that the plaintiffs were not entitled to remand, his claims against Defendants should be remanded because: (1) he alleges only state law remedies that parallel federal requirements; (2) Defendants' preemption defense is not a basis for removal; (3) federal questions are not substantial because FDA regulations are without substantial dispute as to their interpretation; and (4) basing jurisdiction on a defense will upset the balance of federal and state judicial responsibilities.

In their Response in Opposition to Plaintiff's Motion to Remand, Defendants assert that, because the Infuse® is classified as a Class III, FDA, premarket approved (" PMA" ) device under the Medical Device Amendments of 1976 (" MDA" ) to the Federal Food, Drug, and Cosmetic Act of 1938 (" FDCA" ), 21 U.S.C. § 360k(a), the case properly belongs under federal jurisdiction. Additionally, Defendants argue that the removal of the case from state court to federal district court was proper, because: (1) As this Court found in Jenkins, federal question jurisdiction exists, and (2) Removal based on diversity jurisdiction was proper. More Specifically, as to the existence of federal question jurisdiction, Defendants argue that: (1) The substantial federal question doctrine is an exception to the well-pleaded complaint rule; (2) Because 21 U.S.C. § 360k(a) requires a plaintiff to prove a federal violation, this case necessarily raises questions of federal law; (3) The federal interest in regulating Class III medical devices is substantial; and (4) Federal jurisdiction over claims involving PMA medical devices does not upset the balance of federal and state judicial responsibility.


On a motion to remand, a defendant bears the burden of showing that federal court has original jurisdiction through either diversity of citizenship, see 28 U.S.C. § § 1332(a) and 1441(b), or federal question jurisdiction, see 28 U.S.C. § § 1331 and 1441(a). See Warthman v. Genoa Township Bd. of Trustees, 549 F.3d 1055, 1061 (6th Cir. 2008) and Kramer v. Regions Bank, No. 09-2408, 2010 WL 797792, at *2 (W.D. Tenn. Mar. 2, 2010). However, it is a well-settled premise in the Sixth Circuit that " because they implicate federalism concerns, removal statutes are to be narrowly construed." Long v. Bando Mfg. of America, Inc., 201 F.3d 754, 757 (6th Cir. 2000). When there is uncertainty as to whether remand is appropriate or not, " all doubts should be resolved in favor of remand." Ethington v. General Electric Co., 575 F.Supp.2d 855, 860 (N.D. Ohio 2008). In this case, both diversity of citizenship and federal question jurisdiction issues are raised. Thus, this Court must

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examine whether these jurisdictional issues exist in this case.

A. Diversity of Citizenship Does not Exist

Both 28 U.S.C. § § 1332(a) and 1441(b)(2) govern the court's analysis of removal based on diversity of citizenship. See 28 U.S.C. § 1332(a)(1) (" The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between citizens of different States" ); see also 28 U.S.C. § 1441(b)(2) (" A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought" ). When a defendant's right to removal is questioned under 28 U.S.C. § 1441(b)(2), the court must look to the forum defendant rule to determine whether diversity of citizenship exists.

Under the forum defendant rule, a defendant is prohibited " from removing a case to federal district court when the concerns that underpin diversity jurisdiction (i.e. prejudice to out-of-state defendants) are not present because the plaintiff chose to file suit in defendant's own home state courts." Ethington, 575 F.Supp.2d at 858. In other words, a defendant may remove a case to federal court only when there is complete diversity of citizenship " between all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State." Lincoln Property Co. v. Roche, 546 U.S. 81, 84, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005).

The Supreme Court has expressly stated that, " [i]t is not incumbent on the named defendants to negate the existence of a potential defendant whose presence in the action would destroy diversity." Id. Defendants correctly identify the leading Sixth Circuit case, McCall v. Scott, 239 F.3d 808, 813 n. 2 (6th Cir. 2001), which states, in dicta, that " [w]here there is complete diversity of citizenship. . . the inclusion of an unserved resident defendant in the action does not defeat removal under 28 U.S.C. § 1441(b)." There is certainly a split within this Circuit about the application of McCall. However, there have been several district courts that have distinguished the Sixth Circuit's dicta in McCall. For example, in Ethington, the Court states that,

Congress intended the " joined and served" part of the forum defendant rule to prevent gamesmanship by plaintiffs, who might name an in-state defendant against whom he or she does not have a valid claim in a complaint filed in state court to defeat otherwise permissible removal by the non-forum defendant(s). . . . The tactics employed by defendants [i.e. the removal of a case from state court to federal court by a forum defendant, before service on the forum defendant and/or a non-forum defendant] turn Congressional intent on its head by allowing defendants to employ gamesmanship, specifically by rushing to remove a newly filed state court case before the plaintiff can perfect service on anyone.[1]

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575 F.Supp.2d at 861-862. See also In re Darvocet, Darvon and Propoxyphene Products Liability Litigation, No. 2:12-97-DCR, 2012 WL 2919219, at *3 (E.D. Ky. July 17, 2012) (" This Court . . . holds that an in-state defendant cannot avoid the statutory prohibition against removal by removing the case before service" ); but see Linder v. Medtronic, Inc., 2013 WL 5486770, at *2 (W.D. Tenn. Sept. 30, 2013) (" First, there is nothing in the removal statute that precludes Medtronic from filing a notice of removal prior to Plaintiff effecting service of process upon it. Service of process is not a prerequisite to a defendant exercising its right of removal. Second, '[w]here there is complete diversity of citizenship . . . the inclusion of an unserved defendant in the action does not defeat removal under 28 U.S.C. § 1441(b)'" ) (internal citation omitted).

Yet another case that sheds light upon this issue is NFC Acquisition, LLC v. Comerica Bank, 640 F.Supp.2d 964 (N.D. Ohio 2009), which further clarifies the ruling in Ethington. In NFC Acquisition, the defendant attempted to distinguish the facts of its case with that of the facts in Ethington " on the basis that a forum defendant filed for removal [in Ethington ], whereas [in the NFC Acquisition case], a non-forum defendant filed for removal." 640 F.Supp.2d at 969. However, the Court ruled that " nothing in the text of § 1441(b) . . . makes the forum defendant rule dependent on which defendant filed for removal." Id.

Here, Plaintiff argues that Defendant Medtronic purposefully attempted to evade service on Defendant MSD by improperly removing this case before Defendant MSD was served in Circuit Court. Plaintiff contends that " [b]ecause this Court has rejected such gamesmanship," it will not concentrate on the issue of diversity jurisdiction, since it has been previously fully briefed in similar cases. (Pl.'s Mot. Remand, 5, ECF No. 12-1).

Conversely, Defendants argue that this Court has jurisdiction based on diversity jurisdiction because " notwithstanding the fact that [MSD] is a citizen of Tennessee . . . at the time of removal, MSD had not been 'properly joined and served.'" (Defs.' Opp'n to Mot. Remand, 12, ECF No. 13). Defendants properly call this Court's attention to the various cases in the Sixth Circuit that accurately support their argument. Specifically, Defendants contend that this Court should follow McCall because it not only " represents the Sixth Circuit's considered interpretation of § 1441(b) and the majority rule in cases decided subsequent to McCall, but also because it is correct given the plain language of the statute and plain language should control." (Defs.' Opp'n to Mot. Remand, 14-15, ECF No. 13). In essence, Defendants argue that this Court should look to the Darvocet Court's dicta for guidance, which states that, ...

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