Smith v. Hendricks , 140 F. Supp. 3d 66 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VICKY SMITH,
Plaintiff
v. Civil Action No. 15-1226 (CKK)
FREDERICK B. HENDRICKS, M.D., et al.,
Defendants
MEMORANDUM OPINION
(October 22, 2015)
Plaintiff Vicky Smith brought this action in the District of Columbia Superior Court
against Defendants Dr. Frederick Hendricks, Medical Faculty Associates, Inc., 1 and Boston
Scientific in relation to injuries that she allegedly suffered after she was implanted with the
“Advantage Transvaginal Mid-Urethral sling system.” Compl. ¶ 27. Defendant Boston Scientific
subsequently removed the case to this Court. Plaintiff brings medical malpractice claims against
MFA and against Dr. Hendricks (collectively, the “Healthcare Provider Defendants”) and product
liability claims against Boston Scientific. Presently before this Court are the Healthcare Provider
Defendants’ [8] Motion to Dismiss; the Healthcare Provider Defendants’ [11] Motion to Sever
Claims Against Them and Remand Said Claims to D.C. Superior Court; Plaintiff’s [16] Motion
to Remand the Case Back to the Superior Court of the District of Columbia; and Boston
Scientific’s [12] Motion to Stay All Proceedings Pending Transfer to MDL No. 2326. In essence,
Plaintiff seeks to have the entire case remanded to the Superior Court; by contrast, all of the
defendants argue that the claims against the Healthcare Provider Defendants should be severed
and remanded to the Superior Court (insofar as this Court does not dismiss them) while the
1
Although Plaintiff refers to MFA as “Medical Faculty Associate, Inc.,” (in the singular) in her
Complaint, Defendant MFA refers to itself as “Medical Faculty Associates, Inc.,” (in the plural)
and that is consistent with the caption of this case. Accordingly, the Court refers to this defendant
as “Medical Faculty Associates, Inc.”
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claims against Boston Scientific remain in federal district court. Meanwhile, Boston Scientific
has requested that the Panel on Multi-District Litigation transfer this case to the Southern District
of West Virginia as part of the multi-district litigation pending there, under the caption In re
Boston Scientific Corp. Pelvic Repair System Products Liability Litigation (MDL No. 2326), and
has moved to stay the proceedings in this Court pending transfer to the Southern District of West
Virginia.
The key threshold question is whether the Court has jurisdiction over this action in the
first instance. In particular, the question is whether the citizenship of the Healthcare Provider
Defendants can be disregarded for the diversity analysis in light of Defendants’ arguments that
they were either fraudulently or improperly joined. The Court’s resolution of the other issues in
the pending motions follows from its analysis of the jurisdictional question. The Court concludes
that, although none of the Defendants were fraudulently joined, the claims against the Healthcare
Provider Defendants were not properly joined to the claims against Boston Scientific. The Court
concludes that it is proper to sever the claims against the Healthcare Provider Defendants and
sever those Defendants, pursuant to Rule 21, preserving jurisdiction over the claims against
Boston Scientific. Because the Court does not have jurisdiction over the claims against the
Healthcare Provider Defendants, the Court holds in abeyance those defendants’ motion to
dismiss and remands that motion and the associated claims to the Superior Court. Therefore,
upon consideration of the pleadings, 2 the relevant legal authorities, and the record for purposes
2
The Court’s consideration has focused on the following documents:
• Defendant Boston Scientific’s Notice of Removal of Civil Action (“Notice of Removal”),
ECF No. 1; id., Ex. 1 (Plaintiff’s Complaint) (“Compl.”), ECF No. 1-1;
• Defs.’ Dr. Hendricks and MFA’s Mot. to Dismiss (“Mot. to Dismiss”), ECF No. 8; Pl.’s
Opp’n to Mot. to Dismiss, ECF No. 23; Healthcare Provider Defs.’ Reply to Mot. to
Dismiss, ECF No. 20;
2
of this motion, the Court HOLDS IN ABEYANCE and REMANDS the Healthcare Provider
Defendants’ [8] Motion to Dismiss for the District of Columbia Superior Court to decide that
motion; GRANTS the Health Care Provider Defendants’ [11] Motion to Sever Claims Against
Them and Remand Said Claims to D.C. Superior Court; and DENIES Plaintiff’s [16] Motion to
Remand the Case Back to the Superior Court of the District of Columbia. The Court SEVERS
the claims against the Healthcare Provider Defendants, SEVERS those defendants as parties, and
REMANDS those claims back to the Superior Court. Having done so, the Court GRANTS
Boston Scientific’s [12] Motion to Stay All Proceedings Pending Transfer to MDL No. 2326 and
STAYS this action until further order of the Court.
I. BACKGROUND
For the purposes of the motions before the Court, the Court accepts as true the well-
pleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the
plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp.
v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court limits its
presentation of the background to the facts relevant to the issues discussed below.
• Defs.’ Dr. Hendrick’s and MFA’s Defendants’ Motion to Sever Claims Against Them and
Remand Said Claims to D.C. Superior Court (“Mot. to Sever”), ECF No. 11; Pl.’s Opp’n
to Mot. to Sever, ECF No. 17; and Healthcare Provider Defs.’ Reply to Mot. to Sever,
ECF No. 21;
• Plaintiff’s Motion to Remand the Case Back to the Superior Court of the District of
Columbia (“Mot. to Remand”), ECF No. 16; Def. Boston Scientific’s Mem. of Points &
Auth. in Opp’n to Mot. to Remand (“Boston Scientific’s Opp’n to Mot. to Remand”),
ECF No. 22;
• and Boston Scientific’s Motion to Stay All Proceedings Pending Transfer to MDL No.
2326 (“Mot. to Stay”), ECF No. 12.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
3
Boston Scientific produces, designs, researches, distributes, sells, and promotes the
Advantage Transvaginal Mid-Urethral Sling System (“Advantage”), which consists of implanted
surgical mesh devices, as a treatment for pelvic organ prolapse and stress urinary incontinence.
Compl. ¶ 14. On October 20, 2008, the U.S. Food and Drug Administration (“FDA”) issued a
Public Health Notification to health care practitioners regarding adverse events relating to mesh
products that had been reported to the FDA. Id. ¶ 61. On July 13, 2011, the FDA updated its
Public Health Notification regarding “serious complications associated with surgical mesh for
transvaginal mesh.” Id. ¶ 62. Although the FDA did not address specific manufacturers or brand
names in its Public Health Notification, the FDA Manufacturers and User Facility Device
Experience database includes hundreds of injury reports arising from Advantage implants. Id.
¶ 64. Boston Scientific continued to promote Advantage and continues to claim that its reformed
model Advantage Fit System provides safe and effective alternatives to other treatments. Id. ¶ 71.
Boston Advantage has not included warnings or adverse event disclosures on its web page or
brochures for the Advantage Fit System. Id. ¶ 72. Plaintiff further alleges that Boston Scientific
knew or should have known that Advantage was defective, id. ¶ 65, and that Boston Scientific
failed to disclose complications and adverse events arising from the use of Advantage, id. ¶ 70.
Meanwhile, on April 9, 2012, Plaintiff was referred to Medical Faculty Associates with
complaints of recurrent urinary tract infections and stress urinary incontinence. Id. ¶ 18. After
several initial tests and consultation with Dr. Hendricks, id. ¶¶ 19-21, Dr. Hendricks performed
surgery on Plaintiff on June 21, 2012, including a cystoscopy and implanting the Advantage sling
system, id. ¶ 27. While Dr. Hendricks recorded in Plaintiff’s medical records that he had a
thorough discussion with Plaintiff prior to the operation, Plaintiff alleges that she did not receive
an explanation and that they did not have any discussion. Id. ¶¶ 22-23. Plaintiff maintains that
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she did not receive any literature other than a “simple consent form,” and that she never received
any information regarding complications with the use of the mesh device. Id. ¶¶ 23, 25. Plaintiff
began experiencing full scale abdominal pain on June 23, 2012, id. ¶ 28, and additional
complications and adverse events followed, including continuous post-menopausal bleeding and
sever lower back pain, id. ¶ 33. After receiving subsequent treatment and surgery at Providence
Hospital in 2013, id. ¶¶ 33-39, Plaintiff was seen again by Dr. Hendricks during April and May
2014, id. ¶¶ 40-44. Subsequently, Plaintiff continued to suffer adverse health effects and was
treated by other medical practitioners, including surgery that was conducted by those
practitioners. See id. ¶¶ 45-55.
Plaintiff filed the Complaint in the District of Columbia Superior Court on June 22,
2015—which Boston Scientific subsequently removed to this Court—bringing claims in
connection with medical complications that allegedly resulted from medical procedures that
Defendant Dr. Frederick Hendricks performed on Plaintiff, including implanting the Boston
Scientific Advantage Transvaginal Mid-Urethral sling system. Plaintiff brings claims for medical
negligence (count I) and lack of informed consent (count II) against Dr. Hendricks and against
Medical Faculty Associates, the medical practice of which Dr. Hendricks is an employee or
agent. Id. ¶¶ 76-77. Plaintiff brings claims against Boston Scientific for negligent manufacture of
a defective product (count III), breach of duty to warn (count IV), negligent product design
(count V), breach of implied warranty of merchantability (count VI), breach of implied warranty
of fitness for a particular purpose (count VII), breach of express warranty (count VIII),
fraudulent misrepresentation (count IX), and fraud by concealment (count XI). In addition,
Plaintiff also brings a claims for violation of the D.C. consumer protection statutes against both
Dr. Hendricks and Boston Scientific (count X). In addition to the damages that Plaintiff seeks
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with respect to the individual claims, Plaintiff seeks punitive damages from all defendants (count
XII). Defendant Boston Scientific filed the [1] Notice of Removal on July 29, 2015, and the
motions that are now pending before the Court were subsequently filed and briefed.
II. LEGAL STANDARD
“Federal courts are courts of limited jurisdiction” and can adjudicate only those cases
entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). A defendant has the right to remove to federal court an action
brought in state court where the federal court has original subject matter jurisdiction, including
when it has jurisdiction on the basis of diversity of citizenship. 28 U.S.C. § 1441(a). Diversity
jurisdiction exists when the action involves citizens of different states, and the amount in
controversy exceeds $75,000.00 per plaintiff, exclusive of interest and costs. 28 U.S.C.
§ 1332(a). “When a plaintiff sues more than one defendant in a diversity action, the plaintiff
must meet the requirements of the diversity statute for each defendant or face dismissal.”
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989) (citing Strawbridge v. Curtiss,
7 U.S. 267, 3 Cranch 267, 267 (1806)); see also In re Lorazepam & Clorazepate Antitrust Litig.,
631 F.3d 537, 542 (D.C. Cir. 2011) (describing origin of complete diversity requirement). Courts
must strictly construe removal statutes, resolving any ambiguities regarding the existence of
removal jurisdiction in favor of remand. See Williams v. Howard Univ., 984 F. Supp. 27, 29
(D.D.C. 1997) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09 (1941)).
III. DISCUSSION
The Court first considers whether there is diversity jurisdiction over this action under 28
U.S.C. § 1332(a). The Court next considers whether Defendant Boston Scientific, who removed
the action to this Court under the general removal statute, 28 U.S.C. § 1441(a), properly
6
complied with the requirements of the removal statute, specifically with respect to the forum
defendant rule and with respect to the requirement that properly joined defendants join in or
consent to the removal. See 28 U.S.C. § 1441(b)(2) (forum defendant rule); id. § 1446(b)(2)(A)
(consent requirement). The Court lastly considers the Healthcare Provider Defendants motion to
dismiss and Boston Scientific’s request to stay this action.
A. Diversity Jurisdiction
Plaintiff argues that this Court does not have subject matter jurisdiction over this action
because there is not complete diversity among the parties. Defendant Boston Scientific argues
that there is subject matter jurisdiction because the citizenship of the Healthcare Provider
Defendants should be disregarded because those parties were misjoined (that is, improperly
joined). The Healthcare Provider Defendants argue that there is no subject matter jurisdiction
over the claims against them and that the claims against them should be severed and remanded to
the D.C. Superior Court because they were improperly joined to the claims against Boston
Scientific. All of the defendants argue that, even if the Court determines that joinder is proper,
the Court should exercise its discretion under Rule 21 to sever the claims against the Healthcare
Provider Defendants, remand those claims to the D.C. Superior Court, and exercise jurisdiction
over the claims against Boston Scientific.
“ ‘The usual rule is that removability is determined from the record before the court at
the time the notice of removal ... is filed in federal court.’ ” Henok v. JPMorgan Chase Bank,
N.A., No. CV 12-0292 (PLF), 2015 WL 2121788, at *3 (D.D.C. May 6, 2015) (quoting 14B
Charles Alan Wright et al., Fed. Prac. & Proc. Juris. § 3723, at 690 (4th ed. 2009)). “In addition,
‘[a] large minority of courts require complete diversity not only when removal is sought, but also
when the original action is filed in the state court.’ ” Id. (quoting 13E Charles Alan Wright,
7
Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc. Juris. § 3608, at 357-58 (3d ed.
2009)). The question in this case is whether an exception to that usual rule is applicable. Before
addressing the parties’ legal arguments, the Court notes that there are no factual disputes
underlying the question of diversity jurisdiction. 3 There is no question that, if all of the
defendants are considered for the diversity analysis—whether based on their citizenship at time
the complaint was filed in D.C. Superior Court, the time of the notice of removal, or at present—
the parties are not diverse: MFA and Dr. Hendricks are citizens of Washington, D.C., as is
Plaintiff. Compl. ¶¶ 3-6. Boston Scientific is the only party alleged not to be a citizen of
Washington, D.C.; it is a Delaware corporation with is principal place of business in
Massachusetts and is, therefore, a citizen of those two states. Notice of Removal ¶ 6. Similarly, it
is clear that, if the citizenship of the Healthcare Provider Defendants is disregarded—as
Defendants advocate—there would be diversity: Plaintiff is a citizen of Washington, D.C., and
Boston Scientific is not. Therefore, the key jurisdictional question is whether the citizenship of
MFA and Hendricks should be disregarded for the purposes of determining the diversity of the
parties.
Altogether, Defendants suggest three possible bases for disregarding the citizenship of
the Healthcare Provider Defendants in determining whether there is complete diversity among
the parties: that the Healthcare Provider Defendants were fraudulently joined to this action; that
the claims against those defendants were misjoined (or improperly joined) to the claims against
Boston Scientific and must be severed pursuant to Rule 21; and that, in the alternative, the Court
should exercise its discretion to sever the claims against the Healthcare Provider Defendants in
3
With respect to the question of proper joinder, there are disputes regarding the nature of the
claims.
8
order to exercise diversity jurisdiction over the claims against Boston Scientific. The Court notes
at the outset that, despite some lack of precision in the language the parties use to discuss
misjoinder and fraudulent joinder, the Court concludes that fraudulent joinder and misjoinder are
distinct bases for disregarding the citizenship of a nondiverse defendant, with a separate analysis
required for each of those bases. See Kips Bay Endoscopy Ctr., PLLC v. Travelers Indem. Co.,
No. 14 CIV. 7153 ER, 2015 WL 4508739, at *5 (S.D.N.Y. July 24, 2015); In re Rezulin Products
Liab. Litig., 168 F. Supp. 2d 136, 142 (S.D.N.Y. 2001). The Court addresses, in turn, the
potential bases for disregarding the citizenship of the Healthcare Provider Defendants.
1. Fraudulent Joinder
“The fraudulent joinder doctrine allows the Court to ‘disregard, for jurisdictional
purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case,
dismiss the nondiverse defendants, and thereby retain jurisdiction.’ ” Walter E. Campbell Co. v.
Hartford Fin. Servs. Grp., Inc., 959 F. Supp. 2d 166, 170 (D.D.C. 2013) (quoting Mayes v.
Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)). While the D.C. Circuit Court of Appeals has not
addressed the scope or existence of the fraudulent joinder doctrine, other district judges within
this district have applied this doctrine. See, e.g., id.; Boyd v. Kilpatrick Townsend & Stockton,
LLP, 79 F. Supp. 3d 153, 157 (D.D.C. 2015); In re Tobacco/Governmental Health Care Costs
Litig., 100 F. Supp. 2d 31, 39 (D.D.C. 2000). “In assessing a claim of ‘fraudulent joinder,’ the
removing party bears the burden of proving that, either ‘(1) there is no possibility the plaintiff
can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently
pled jurisdictional facts to bring the ... defendant into state court.’ ” In re Tobacco/Governmental
Health Care Costs Litig., 100 F. Supp. 2d at 39 (quoting Crowe v. Coleman, 113 F.3d 1536, 1538
(11th Cir. 1997); see also Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)
9
(citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)) (same standard). The
Court concludes that neither of these prongs is satisfied in this case.
The Court begins with the second prong: in this case, there is no suggestion that Plaintiff
has “fraudulently pled jurisdictional facts.” There is no dispute regarding the actual citizenship of
the parties, and the parties acknowledge that, if the citizenship of all parties is considered,
complete diversity is absent from this case. Next, the Court turns to the question of whether there
is “no possibility the plaintiff can establish a cause of action against the resident defendant”—in
other words, whether there is no possibility that Plaintiff’s claims against the Healthcare Provider
Defendants can succeed. Importantly, it is unclear whether the Defendants, in fact, press this
argument. Nowhere does Boston Scientific explicitly lay out this argument despite its references
to cases discussing fraudulent joinder. In the Healthcare Provider Defendants’ motion to dismiss,
they argue that the Court should dismiss all claims against them. While the Healthcare Provider
Defendants do not explicitly link those arguments to their argument that they were fraudulently
joined as defendants, the Court briefly considers this prong of the fraudulent joinder doctrine in
the interest of completeness and because of the interrelated nature of the arguments in the
motions pending before the Court.
The Healthcare Provider Defendants argue, in their motion to dismiss, that this Court has
no subject matter jurisdiction over the claims against them because Plaintiff failed to comply
with the 90-day pre-suit notice requirement for medical malpractice claims under the D.C.
Code. 4 See D.C. Code § 16–2802(a) (“Any person who intends to file an action in the court
4
While Plaintiff argues that non-compliance with the notice requirement strips this Court of
subject matter jurisdiction, it is far from clear that the notice requirement itself is jurisdictional
rather an element of a medical malpractice claim pursuant to D.C. law. Compare Lacek v.
Washington Hosp. Ctr. Corp., 978 A.2d 1194, 1196 (D.C. 2009) (affirming dismissal for lack of
10
alleging medical malpractice against a healthcare provider shall notify the intended defendant of
his or her action not less than 90 days prior to filing the action.”). The Healthcare Provider
Defendants acknowledge that trial courts are “authorized … to waive § 16–2802(a)’s notice
requirement whenever such a waiver is in the interests of justice.” Lewis v. Washington Hosp.
Ctr., 77 A.3d 378, 382 (D.C. 2013). With respect to this provision, the posture in which the
Court considers the Healthcare Provider Defendants’ argument for dismissal is important. Given
the discretion given to trial courts to waive the notice provision, the Court cannot conclude that
there is “no possibility the plaintiff can establish a cause of action against” those defendants. In
re Tobacco/Governmental Health Care Costs Litig., 100 F. Supp. 2d at 39. Therefore, the Court
has no need to consider the merits of the parties’ arguments regarding the appropriateness of such
a waiver; the discretion associated with such a waiver necessarily means that there is some
“possibility” of success on Plaintiff’s claims against the Healthcare Provider Defendants. While
the Healthcare Provider Defendants also argue, in their motion to dismiss, that the Complaint
fails to state a claim with respect to the D.C. Consumer Protection Procedures Act claim and the
punitive damages claim, the Court need not tarry long with respect to this argument. Even if
those arguments both succeeded, these arguments would not undermine Plaintiff’s other claims.
Even if those arguments succeeded, the Court still could not conclude that there was no
possibility of success on the claims against the Healthcare Provider Defendants. Accordingly, the
Court finds that the Healthcare Provider Defendants were not fraudulently joined, and the Court
cannot disregard their citizenship on this basis.
subject jurisdiction without discussion of jurisdictional nature of notice requirement) with Lewis
v. Washington Hosp. Ctr., 77 A.3d 378, 382 (D.C. 2013) (suggesting the possibility that notice
requirement could be waived by the parties).
11
2. Misjoinder 5
Under Federal Rule of Civil Procedure 20, multiple defendants may be joined in one
action if “(A) any right to relief is asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will arise in the
action.” Fed. R. Civ. P. 20(a)(2). “Misjoinder of parties is not a ground for dismissing an action.”
Fed. R. Civ. P. 21. Instead, a “court may at any time, on just terms, add or drop a party.” Id. “The
court may also sever any claim against a party.” Id. “ ‘[I]t is well settled that Rule 21 invests
district courts with authority to allow a dispensable nondiverse party to be dropped at any time,
even after judgment has been rendered.” Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S.
567, 572-73 (2004) (quoting Newman-Green, 490 U.S. at 832). The Healthcare Provider
Defendants argue—and Boston Scientific concurs—that they (and the claims against them) were
improperly joined with the claims against Boston Scientific. Defendants argue that neither prong
of Rule 20(a) is satisfied: that the claims against the Healthcare Provider Defendants do not arise
out of the same “transaction, occurrence or series of transactions or occurrences” as the claims
against Boston Scientific and that there are not common questions of law or fact between the two
groups of claims. Plaintiff primarily responds to Defendants’ joinder arguments by arguing that
this Court has no jurisdiction over the case and, therefore, no occasion to consider the propriety
of the joinder of the parties and the claims. However, as explained above, the Court concludes
5
Because the relevant D.C. Superior Court rules are identical to the relevant Federal Rules of
Civil Procedures, it is immaterial whether the Federal Rules or the Superior Court Rules are
applied to determine whether joinder is proper. See D.C. Sup. Ct. Rules of Civil Procedure,
Comment to Rule 20 (“Identical to Federal Rule of Civil Procedure 20 except for deletion of
reference to admiralty process in the 2nd sentence of section (a) thereof.”); id., Comment to Rule
21 (“Identical to Federal Rule of Civil Procedure 21.”). Therefore, the Court references the
Federal Rules of Civil Procedure, as the parties have done, for the sake of simplicity.
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that it is proper—and necessary—to consider the joinder issues in order to determine whether the
Court can exercise jurisdiction over this case. Plaintiff also responds that both prongs of the Rule
20(a)(2) are satisfied with respect to the claims in the Complaint.
The Court turns to the first prong of the standard under Rule 20(a)(2)—whether the relief
asserted against the defendants “with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2)(A). Plaintiff claims
that this prong is satisfied because Dr. Hendricks implanted the device produced by Boston
Scientific during the surgery he performed on Plaintiff. See Pl.’s Opp’n to Defs.’ Mot. to Sever at
5. Plaintiff further claims that “the presence of mesh device in the body of the Plaintiff is a direct
function of the manufacture and distribution of the device to Defendants Hendricks and MFA for
use in the surgery performed on Plaintiff.” Id. Defendants argue that the claims against the
Healthcare Provider Defendants arise out of different transactions or occurrences—specifically,
the care and treatment of Plaintiff for urological complaints—than the claims against Boston
Scientific—which arise out of Boston Scientific’s research, testing, and disclosure of information
relating to the Advantage system. The Court agrees with the Healthcare Provider Defendants. It
is immaterial that the claims are linked, in some sense, as Plaintiff claims: if Boston Scientific
had never manufactured the Advantage system, Dr. Hendricks could never have performed
surgery on Plaintiff that entailed implanting the Advantage system. However, the applicable test
for joinder requires more. The question is whether Plaintiff seeks relief from the several
defendants “arising out of the same transaction, occurrence, or series of transactions or
occurrences.” The Court concludes that the Complaint does not meet this standard. Count I and
II are brought against the Healthcare Provider Defendants on the basis of the events surrounding
their treatment of Plaintiff. Counts III through IX and Count XI are brought against Boston
13
Scientific on the basis of products liability, including claims regarding alleged defectiveness of
the Advantage system and claims regarding the failure of Boston Scientific to disclose adverse
information regarding the Advantage System. The only substantive claim 6 brought against one of
the Healthcare Defendants and against Boston Scientific is Count X, involving a claim for
violation of the D.C. consumer protection statutes against both Dr. Hendricks and Boston
Scientific, which alleges that neither defendants informed her fully or provided an alternative
that would allow her to make an informed decision about her medical treatment. Compl. ¶ 142.
The claims against Boston Scientific, which pertain to products liability, do not arise out of the
same transactions or occurrences as the claims against the Healthcare Provider Defendants,
which relate to medical malpractice by those defendants treating Plaintiff. The fact that Plaintiff
claims that both the Healthcare Provider Defendants and Boston Scientific should have provided
additional information to her regarding the Advantage system does not change this conclusion.
Plaintiff’s interactions—or lack thereof—with Boston Scientific and with the Healthcare
Provider Defendants are wholly distinct. The factual basis for the claims against Boston
Scientific pertains to the research, development, production, and marketing of the Advantage
system; the factual basis for the claims against the Healthcare Provider Defendants pertains to
Plaintiff’s treatment by and interaction with her healthcare providers. Accordingly, the Court
concludes that Complaint does not satisfy the requirements of the first prong of Rule 20(a)(2)
with respect to the claims against the Healthcare Provider Defendants.
6
A punitive damages claim, Count XII, is brought against all defendants, but the allegations
under the claim only reference Boston Scientific. Specifically, although the heading for Count
XII states that it is brought “AGAINST All Defendants,” Plaintiff only “prays for judgment
against Boston Scientific for $6000000.00 (six million dollars) for ruthless and wanton behavior
to promote the mesh device to implant into Ms. Smith’s body.” Compl. ¶ 153. Plaintiff does not,
under Count XII, seek punitive damages from any of the other defendants.
14
Indeed, this conclusion accords with that of several other district courts that have
considered the propriety of joinder in cases where medical malpractice claims were joined with
product liability claims. See, e.g., In re Stryker Rejuvenate & ABG II Hip Implant Products Liab.
Litig., No. CIV. 13-1811 DWF/FLN, 2013 WL 6511855, at *4 (D. Minn. Dec. 12, 2013) (“The
joinder of any malpractice, negligence, or misrepresentation claim against the Hospital
Defendants with the other product liability claims (that are properly asserted against the device
manufacturer) is inappropriate because the claims do not both involve common questions of law
or fact and assert joint, several, or alternative liability ‘arising out of the same transaction,
occurrence, or series of transactions or occurrences.’”) (quoting Fed. R. Civ. P. 20(a)); Hughes v.
Sears, Roebuck & Co., No. CIV.A. 2:09-CV-93, 2009 WL 2877424, at *6 (N.D.W. Va. Sept. 3,
2009) (concluding that product liability claims were improperly joined to medical malpractice
claims); Sutton v. Davol, Inc., 251 F.R.D. 500, 505 (E.D. Cal. 2008) (same); In re Guidant Corp.
Implantable Defibrillators Products Liab. Litig., No. CIV 07-1487 DWF/AJB, 2007 WL
2572048, at *2 (D. Minn. Aug. 30, 2007) (medical malpractice claim improperly joined to
products liability claim because claims did not arise from same transaction or occurrence). But
see, e.g., Stephens v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., 807 F. Supp. 2d 375,
383 (D. Md. 2011) (concluding that medical malpractice claims arose out of same transaction or
occurrence as products liability claim).
Because the Court concludes that the claims against Boston Scientific do not arise out of
the same transaction, occurrence, or series of transactions or occurrences as the claims against
the Healthcare Provide Defendants, the Court concludes that the defendants are improperly
joined in this case, and the Court need not consider Defendants’ additional argument that there
15
are no common questions of law or fact between the claims against Boston Scientific and the
claims against the Healthcare Provider Defendants.
Under Rule 21, the Court may sever any party if “they are not indispensable and if there
would be no prejudice to the parties.” In re Lorazepam & Clorazepate Antitrust Litig., 631 F.3d
at 542; see also Fed. R. Civ. P. 21. Given that there is no basis for permissive joinder of the
claims against the Healthcare Provider Defendants, it is necessarily true that the Healthcare
Provider Defendant are not necessary (or “indispensable,” according to the former language of
the rules) parties who must be joined pursuant to Rule 19 in order for this action to proceed.
Indeed, there would be no basis for the Court to conclude that, without the Healthcare Provider
Defendants, “the court cannot accord complete relief among existing parties.” Fed. R. Civ. P.
19(a)(1)(A). Nor would the Court have any basis to conclude that the Healthcare Provider
Defendants “claim[] an interest relating to the subject of the action and is so situated that
disposing of the action in [their] absence may … (i) as a practical matter impair or impede [their]
ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations because of the interest.” Fed. R.
Civ. P. 19(a)(1)(B). Finally, Plaintiff has not identified any prejudice to severing and remanding
the claims against the Healthcare Provider Defendants to the D.C. Superior Court while the
claims against Boston Scientific are litigated in federal court. Therefore, pursuant to Rule 21, the
Court severs the claims against the Healthcare Provider Defendants and remands those claims
and defendants to the D.C. Superior Court. See In re Lorazepam & Clorazepate Antitrust Litig.,
631 F.3d at 542.
Under “the fiction that Rule 21 relates back to the date of the complaint [,] the court may
proceed as if the nondiverse parties were never part of the case.” Id. (citation omitted).
16
Accordingly, by disregarding the presence of the Healthcare Provider Defendants and their
citizenship, there is complete diversity between Plaintiff and Boston Scientific, and the Court has
subject matter jurisdiction over the remaining claims and parties in this case pursuant to 28
U.S.C. § 1332. Finally, because the Court concludes that it has subject matter jurisdiction over
this case as a result of the conclusion that the Healthcare Provider Defendants were misjoined,
the Court need not determine whether it would exercise its discretion under Rule 21 to sever the
claims, absent misjoinder, merely to preserve jurisdiction against Boston Scientific. 7 See In re
Lorazepam & Clorazepate Antitrust Litig., 631 F.3d at 542 (court may drop parties to preserve
jurisdiction and proceed with case if they are not indispensable).
B. Compliance with the Removal Statutes
While the Court has concluded that it has diversity jurisdiction over the claims against
Boston Scientific under section 1332 by virtue of the severance and remand of the claims against
the Healthcare Provider Defendants pursuant to Federal Rule of Civil Procedure 21, the Court
now considers Plaintiff’s arguments that Boston Scientific did not properly comply with the
substantive and procedural requirements of the removal statute. However, in light of the Court’s
conclusion above that the claims against the Healthcare Provider Defendants were improperly
joined to the claims against Boston Scientific, little additional analysis is needed for the Court to
7
The Court notes that other district courts have concluded that there is a basis for severing a
party pursuant to Rule 21 in similar circumstances as presented here, where severing such a party
would enable a federal court to exercise jurisdiction over the remaining claims and parties along
with other actions transferred to a single district through the multi-district litigation process. See,
e.g., Sullivan v. Calvert Mem’l Hosp., No. CIV. PJM 15-1188, 2015 WL 4614467, at *5 (D. Md.
July 30, 2015) (severing claims against healthcare provider defendants under Rule 21 and
exercising jurisdiction over against product manufacturer).
17
determine that Boston Scientific has, in fact, complied with the applicable requirements of the
removal statute.
First, Plaintiff argues that removal was improper under 28 U.S.C. § 1441 because the
Healthcare Provider Defendants are citizens of the District of Columbia and because the forum
defendant rule bars removal in these circumstances. 8 Pursuant to section 1441, “[a] civil action
otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title [the
statutory basis for diversity jurisdiction] 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.” 28 U.S.C § 1441(b)(2) (emphasis added). In her motion to remand, Plaintiff argues that
the notice of removal is improper in light of this rule because the Healthcare Provider
Defendants are “citizen[s] of the State in which such action is brought”—the District of
Columbia. However, Plaintiff ignores a key element of the statutory provision—that it applies
only to “parties in interest properly joined and served as defendants.” Id. (emphasis added).
Because the Healthcare Provider Defendants are not properly joined as defendants, as the Court
determined above, the forum defendant rule is inapplicable and does not render the Notice of
Removal improper.
Second, Plaintiff argues that removal was procedurally improper because the Healthcare
Provider Defendants did not consent to the removal. Pursuant to section 1446, “[w]hen a civil
action is removed solely under section 1441(a), all defendants who have been properly joined
and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A)
8
The Court notes that the weight of authority is that the forum defendant rule is a
nonjurisdictional rule. See Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 940 (9th Cir. 2006)
(agreeing with eight out of nine other Circuit Courts to have considered this issue and concluding
that the forum defendant rule is nonjurisdictional).
18
(emphasis added). Once again Plaintiff ignores a key element of this statutory provision—that it
applies only to “who have been properly joined and served.” Id. (emphasis added). Because the
Healthcare Provider Defendants are not properly joined as defendants, as the Court concluded
above, the Court finds that the consent requirement is inapplicable and does not render the
Notice of Removal improper. 9
In sum, in light of the Court’s conclusion that the Healthcare Provider Defendants were
not properly joined to this action, the Notice of Removal was substantively and procedural
proper. Having rejected Plaintiff’s arguments that the claims against all of the defendants in this
case must be remanded to the D.C. Superior Court, this Court concludes that it has jurisdiction
over the claims against Boston Scientific.
9
This interpretation of the consent requirement accords with the conclusions of other courts that
have addressed the scope of the requirement. See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815
(5th Cir. 1993) (“In cases involving alleged improper or fraudulent joinder of parties, however,
application of this requirement to improperly or fraudulently joined parties would be
nonsensical, as removal in those cases is based on the contention that no other proper defendant
exists.”); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988) (“Ordinarily,
under 28 U.S.C. § 1446(a), all defendants in a state action must join in the petition for removal,
except for nominal, unknown or fraudulently joined parties. … This general rule applies,
however, only to defendants properly joined and served in the action.”) (citations omitted). Some
courts that addressed the scope of the consent requirement have described the exception in terms
of fraudulently joined parties and have not discussed its applicability to improperly joined
parties. See, e.g., Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 877 (1st Cir. 1983) (“A
party fraudulently joined to defeat removal need not join in a removal petition, and is disregarded
in determining diversity of citizenship.”); Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 (3d Cir.
1995). However, the parties have identified no cases—and the Court is aware of no cases—
where courts have explicitly determined that there is no exception to the consent requirement for
improper joinder. In accordance with the authority from jurisdictions establishing an exception
for improperly joined parties, the Court concludes that the explicit language of section 1446 does
not require consent from improperly joined parties.
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C. Remaining Issues
The Healthcare Provider Defendants argue that the Court should consider their motion to
dismiss prior to their motion to sever and remand. The Court disagrees. The Healthcare Provider
Defendants’ proposed sequencing would not be proper because the Court concluded above that it
is necessary to resolve the motion to sever and remand in order to determine whether the Court
has jurisdiction over this case in the first stance. Therefore, the Court only considered the
Healthcare Providers Defendants’ arguments in favor of dismissal in the context of the parties’
fraudulent joinder arguments. Having concluded that there is no fraudulent joinder in this case
and having concluded that it was necessary to sever the claims against the Healthcare Provider
Defendants and remand them to the D.C. Superior Court in order to exercise jurisdiction over
any claims in this case, it would be advisable to hold in abeyance and remand the Healthcare
Provider Defendants’ motion to dismiss as to the merits of this case. 10 Accordingly, the Court
holds in abeyance and remands the Healthcare Provider Defendants’ motion to dismiss.
Finally, the Court addresses Boston Scientific’s [12] Motion to Stay all Proceedings
Pending Transfer to MDL No. 2326, which seeks a stay in this action pending a decision by the
Judicial Panel on Multi-District Litigation (“JPML” or “Panel”) regarding the request to transfer
this action to the Southern District of West Virginia as part of MDL No. 2326, captioned In re
Boston Scientific Corp. Pelvic Repair System Products Liability Litigation. On August 4, 2015,
the Panel issued a Conditional Transfer Order 149 (“CTO-149”), which would transfer this
action to the Southern District of West Virginia. However, the Conditional Transfer Order with
10
The Court notes, as it explained above, that although the Healthcare Provider Defendants
frame their only argument applicable to all claims against them as a jurisdictional argument, the
Court is not persuaded that those arguments are properly considered jurisdictional rather than
merits-related.
20
respect to this action has remained stayed since it was issued because the Healthcare Provider
Defendants filed a Notice of Opposition and moved to vacate the Conditional Transfer Order. 11
Boston Scientific has opposed the Healthcare Provider Defendants’ motion to vacate. As of this
date, the Motion to Vacate remains pending before the Panel, and the Panel has scheduled a
hearing on that motion for December 3, 2015.
After Boston Scientific filed the Motion to Stay, this Court issued an order with respect
the various motions that were pending in this case. The Court determined that it would not stay
the briefing of the several motions that had been filed—the motions that the Court resolves
today—but did not at that time resolve the Motion to Stay. As Boston Scientific has pointed out,
neither the Healthcare Provider Defendants nor Plaintiff has filed an opposition to the Motion to
Stay even though Plaintiff previously indicated her opposition and the Healthcare Provider
Defendants indicate that they opposed the Motion insofar as it would affect the Court’s
consideration of the motions they filed. See Boston Scientific’s Opp’n to Mot. to Remand at 3
n.1. Nonetheless, given the Healthcare Provider Defendants’ motion to vacate the Conditional
Transfer Order that remains pending before the Panel, and given the jurisdictional issues that are
presented in this case, the Court concluded that would not be in the interest of judicial efficiency
to stay these proceedings prior to the resolution of the other motions pending before the Court.
However, having resolved those motions as explained above—severing and remanding the
claims against the Healthcare Provider Defendants such that this Court can exercise jurisdiction
over the claims against Boston Scientific—the Court concludes that a stay would now be proper.
11
Plaintiff initially filed a Notice of Opposition to the Conditional Transfer Order, but because
that Notice was filed one day late, it was withdrawn.
21
Plaintiff does not dispute that there are thousands of cases pending against Boston
Scientific through MDL 2326 that present similar claims to Plaintiff’s claims. Having resolved
the jurisdictional issues in this case, the Court concludes that it would be best to postpone any
consideration of the claims against Boston Scientific—including allowing a period of discovery
to commence—until the Panel’s resolves the Motion to Vacate that is now pending. Not only are
the questions regarding discovery in this case likely to be integrally linked to those issues
considered by Judge Joseph R. Goodwin with respect to cases pending before him through MDL
No. 2326, but the Court expects that it is likely that the Panel will promptly resolve the questions
regarding the Conditional Transfer Order in light of this Court’s resolution of the issues in this
case. Specifically, given that the only Motion to Vacate pending before the Panel is the one filed
by the Healthcare Provider Defendants, once the claims against them are remanded they would
appear not to have any ground to object to a conditional transfer. Indeed, in their Motion to Sever
and Remand, the Healthcare Provider Defendants indicated that, after the resolution of the
motions pending before this Court, the “transfer of the claims against Boston Scientific to the
pending multi-district litigation, is the course of action most likely to ‘secure the just, speedy,
and inexpensive determination of every action and proceeding.’ ” Mot. to Sever at 10. The Court
expects that, after this resolution of the pending motions, that the claims against Boston
Scientific will be transferred, with any remaining objections—given that Plaintiff did not file a
timely objection to the Motion to Vacate before the Panel—to the Southern District of West
Virginia. Accordingly, the Court will stay this action pending the resolution of the issues
regarding the Conditional Transfer Order by the Panel on Multi-district Litigation.
22
IV. CONCLUSION
For the foregoing reasons, the Court HOLDS IN ABEYANCE and REMANDS the
Healthcare Provider Defendants’ [8] Motion to Dismiss to allow the Superior Court to decide
that motion; GRANTS the Health Care Provider Defendants’ [11] Motion to Sever Claims
Against Them and Remand Said Claims to D.C. Superior Court; and DENIES Plaintiff’s [16]
Motion to Remand the Case Back to the Superior Court of the District of Columbia. The Court
SEVERS the defendants and claims against the Healthcare Provider Defendants, and
REMANDS those defendants and claims back to the Superior Court. Having done so, the Court
GRANTS Boston Scientific’s [12] Motion to Stay All Proceedings Pending Transfer to MDL No.
2326 and STAYS this action until further order of the Court.
An appropriate Order accompanies this Memorandum Opinion.
Dated: October 22, 2015
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
23