United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO REMAND OR ALTERNATIVELY.
JON P. McCALLA, District Judge.
Before the Court is Plaintiffs' Motion to Remand or Alternatively, to Dismiss without Prejudice, filed October 17, 2014. (ECF No. 7.) Defendants Wright Medical Technology Inc. and Wright Medical Group Inc. (collectively "Wright Medical") timely responded in opposition to the Motion to Remand on November 3, 2014. (ECF No. 11.) For the reasons stated below, Plaintiffs' Motion to Remand or Alternatively, to Dismiss without Prejudice, is GRANTED IN PART and DENIED IN PART.
A. Factual Background
This case arises out of an allegedly defective hip replacement device (known as the PROFEMUR Total Hip System and PROFEMUR Neck) manufactured by Wright Medical and implanted in Plaintiff Christopher Harrison on May 21, 2009. (Compl. ¶¶ 1, 68, ECF No. 1-1.) The complaint alleges that Christopher Harrison was an appropriate patient to be implanted with the hip system. (Id. ¶ 69.) The complaint also alleged that Christopher Harrison used the device in a normal and expected manner after the device was implanted. (Id.) On March 25, 2014, the hip replacement device broke into two pieces while Christopher Harris was standing. (Id. ¶¶ 71-72.) Two days later, Christopher Harris had his hip replacement device removed. (Id. ¶ 73.)
Plaintiffs Christopher and LaCrisha Harrison are married and reside in McAlester, Oklahoma. (Id. ¶¶ 3, 220.) The hip system was both implanted and removed from Mr. Harris in Oklahoma. (Id. ¶¶ 68, 73.) Wright Medical Technology Inc. and Wright Medical Group Inc. are Delaware corporations with principal places of business in Memphis, Tennessee. (Id. ¶¶ 4-5.)
B. Procedural Background
Plaintiffs filed a Complaint against Wright Medical in Shelby County Tennessee Circuit Court on September 18, 2014. (Compl. at 1.) The Complaint alleges that Wright Medical "knew or received notice of clinical failures" of its hip system device and failed to report this information to the FDA. (Id. ¶¶ 34-35.) The Complaint also alleges that the hip system was not tested in design and development at the level of forces that the hip system was known to encounter in the normal activities of daily living. (Id. ¶ 78.) Plaintiffs' Complaint asserts nine causes of action, including strict products liability, negligence, and loss of consortium. (Id. ¶¶ 35-56.)
Wright Medical filed a Notice of Removal from the Circuit Court for the County of Shelby, Tennessee, to the United States District Court for the Western District of Tennessee, Western Division, on September 19, 2014. (ECF No. 1.) Wright Medical asserts that removal was timely because Wright Medical was not served with the Summons and Complaint at the time Wright Medical filed the Notice of Removal. (Id. ¶ 9.) Plaintiffs filed a Motion to Remand or, Alternatively, to Dismiss without Prejudice on October 17, 2014. (ECF No. 7.) The Plaintiffs assert that, under the forum defendant rule, Wright Medical could not remove the case from Tennessee state court to the United States District Court for the Western District of Tennessee. (Id. at 2.) The Plaintiffs also assert that, if the Motion to Remand is not granted, the Court should dismiss the complaint without prejudice to allow the Plaintiffs to refile in their forum of choice. (Id. at 3.) Wright Medical filed a Response in Opposition to Plaintiffs' Motion to Remand or Dismiss on November 3, 2014. (ECF No. 11.) Wright Medical asserts in its Response that the plain language of the removal statute, 28 U.S.C. § 1441, allows a forum defendant to remove a case to federal court before being "properly joined and served." (Id. at 3.) Wright Medical also asserts that dismissing the Complaint and allowing Plaintiffs to refile their complaint would encourage forum shopping. (Id. at 8.)
II. Legal Standard
A defendant may remove to federal district court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction...." 28 U.S.C. § 1441(a). District courts have original jurisdiction in civil actions where "the matter in controversy exceeds the sum or value of $75, 000... and is between... citizens of different States." 28 U.S.C. § 1332(a). "The party seeking removal bears the burden of demonstrating that the district court has original jurisdiction." Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006) (citing Conrad v. Robinson, 871 F.2d 612, 614 (6th Cir. 1989)).
"[B]ecause they implicate federalism concerns, removal statutes are to be narrowly construed." Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000) (citing Shamrock Oil & Gas, 313 U.S. at 108-09).
The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution. Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined'.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). Consequently, "all doubts as to the propriety of removal are resolved in favor of remand." Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 405 (6th Cir. 2007) (internal quotation marks omitted) abrogated on other ...