Mitchell v. Acumed, LLC, No. 3:2011cv00752 - Document 37 (N.D. Cal. 2011)
Court Description: ORDER granting in part and denying in part 7 Motion to Dismiss; granting 8 Motion to Strike ; denying 19 Motion to Remand (sclc1, COURT STAFF) (Filed on 6/13/2011)
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Mitchell v. Acumed, LLC Doc. 37 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 RANDALL RAY MITCHELL, 8 ) Case No. 11-752 SC ) ) ORDER RE: MOTIONS ) ) ) ) ) ) ) ) ) Plaintiff, 9 v. For the Northern District of California United States District Court 10 ACUMED, LLC; and DOES 1 through 100, inclusive, 11 12 Defendants. 13 14 15 I. INTRODUCTION Plaintiff Randall Ray Mitchell ("Plaintiff") commenced this 16 17 action in Marin County Superior Court against Acumed, LLC 18 ("Defendant"), pleading eight causes of action relating to injuries 19 Plaintiff allegedly sustained after a device manufactured by 20 Defendant was surgically inserted into his body. 21 ("Notice of Removal") Ex. E ("FAC"). 22 are now before the Court. 23 state court. 24 Reply"), 35 ("MTR Supp. Opp'n"), 36 ("MTR Supp. Reply").1 25 Defendant moves to dismiss Plaintiff's FAC. 26 ("MTD Opp'n"), 30 ("MTD Reply"). ECF No. 1 Three fully briefed motions Plaintiff moves to remand the case to ECF Nos. 19 ("MTR"), 25 ("MTR Opp'n"), 28 ("MTR ECF Nos. 7 ("MTD"), 23 Defendant additionally moves to 27 28 1 The Court required supplemental briefing on Plaintiff's MTR. No. 32. ECF Dockets.Justia.com 1 strike references in the FAC to the allegedly defective design of 2 Defendant's device. 3 Reply"). 4 Motion to Remand, GRANTS IN PART and DENIES IN PART Defendant's 5 Motion to Dismiss, and GRANTS Defendant's Motion to Strike. ECF Nos. 8 ("MTS"), 24 ("MTS Opp'n"), 31 ("MTS For the following reasons, the Court DENIES Plaintiff's 6 7 II. As it must on a Federal Rule of Civil Procedure 12(b)(6) 8 9 BACKGROUND motion, the Court assumes the truth of the well-pleaded facts in United States District Court For the Northern District of California 10 Plaintiff's' FAC. 11 surgery. 12 Lunate Fixation device ("the device") was implanted into his wrist. 13 Id. 14 necessitating removal of the device and additional surgery. 15 7, 14. 16 research[ed], develop[ed], manufacture[d], test[ed], market[ed], 17 advertise[d], promote[d], distribute[d], warrant[ed] and [sold]" 18 the device. 19 time of Plaintiff's surgery that it was unsafe and defective 20 because it "could not withstand the stresses placed as a patient's 21 mobility increased and would fracture and break under the stresses 22 that foreseeably accompanied increased mobility while bone union 23 and growth . . . was occurring in patients." 24 alleges that Defendant falsely represented the strength and use of 25 the device in brochures provided to Plaintiff's doctors, and that 26 Defendant failed to disclose that the device would fracture. 27 11. 28 "safe and effective even when used as directed [even though] no FAC ¶ 7. Around January 2, 2008, Plaintiff underwent During the procedure, an Articulating Scaphoid Subsequent X-rays revealed that the device had fractured, Id. ¶¶ Plaintiff alleges in his FAC that Defendant "design[ed], Id. ¶ 8. Plaintiff alleges that Defendant knew at the Id. ¶ 10. Plaintiff Id. ¶ Plaintiff claims that Defendant represented the device to be 2 1 clinical trials had been done supporting long or short-term 2 efficacy." 3 known risks about the device, and failed to provide sufficient 4 warnings and instructions that would have put the general public on 5 notice of the possibility of dangers and adverse effects. 6 13, 15. 7 it was "reasonably scientifically knowable" that the device would 8 fracture and break, and hence Defendant acted with malice in 9 failing to warn the public of this danger. United States District Court Plaintiff claims that Defendant concealed Id. ¶ Plaintiff argues that at the time of Plaintiff's surgery, Id. ¶ 21. On January 4, 2010, Plaintiff filed his Initial Complaint in 10 For the Northern District of California Id. ¶ 12. 11 California Superior Court for the County of Marin. See Notice of 12 Removal Ex. A ("Initial Complaint"). 13 Plaintiff did not plead the state citizenship of Plaintiff or 14 Defendant. 15 August 12, 2010. 16 September 13, 2010; on December 29, 2010, the court sustained the 17 demurrer, giving Plaintiff leave to amend his complaint. 18 4. 19 Complaint in state court. 20 section entitled "Identity and Capacity of Parties" in which 21 Plaintiff pleaded that he was a resident of California. 22 6. 23 is informed and believed that each of the fictitiously named 24 defendants is responsible in some manner for the occurrences herein 25 alleged, and that plaintiff's damages as herein alleged were and 26 continue to be proximately caused by such occurrences." 27 Plaintiff brings eight causes of action against Defendant and Doe 28 Defendants: (1) strict product liability -- failure to warn; (2) In his Initial Complaint, Defendant was served with the Initial Complaint on Notice of Removal at 3. Defendant demurred on Id. at 3- On January 28, 2011, Plaintiff filed his First Amended See FAC. Included in the FAC was a Id. ¶¶ 3- Plaintiff also named sixty Doe Defendants, writing: "Plaintiff 3 Id. ¶ 4. 1 strict liability; (3) negligence; (4) breach of implied warranty; 2 (5) breach of express warranty; (6) fraud; (7) fraud by 3 concealment; and (8) negligent misrepresentation. 4 See FAC. On February 18, 2011, Defendant removed the action to federal 5 court. See Notice of Removal. 6 diversity of the parties, noting that the FAC identified Plaintiff 7 as a citizen and resident of California while alleging that 8 Defendant is a Delaware corporation with its principal place of 9 business in Hillsboro, Oregon. Defendant based removal on Id. at 2. United States District Court For the Northern District of California 10 11 III. LEGAL STANDARDS 12 A. 13 Any civil action brought in a state court may be removed to Motion to Remand 14 federal court if there is complete diversity of citizenship and 15 where the amount in controversy exceeds $75,000. 16 1332, 1441. 17 the removal statute, "and any doubt about the right of removal 18 requires resolution in favor of remand." 19 Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citation 20 omitted). 21 defendant always has the burden of establishing that removal is 22 proper." 28 U.S.C. §§ As a general rule, the court must strictly construe Moore-Thomas v. Alaska "The presumption against removal means that the Id. (internal quotations omitted). 23 B. 24 A motion to dismiss under Federal Rule of Civil Procedure Motion to Dismiss 25 12(b)(6) "tests the legal sufficiency of a claim." 26 Block, 250 F.3d 729, 732 (9th Cir. 2001). 27 on the lack of a cognizable legal theory or the absence of 28 sufficient facts alleged under a cognizable legal theory. 4 Navarro v. Dismissal can be based 1 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 2 1990). 3 should assume their veracity and then determine whether they 4 plausibly give rise to an entitlement to relief." 5 Iqbal, 129 S. Ct. 1937, 1950 (2009). 6 court must accept as true all of the allegations contained in a 7 complaint is inapplicable to legal conclusions. 8 recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice." "When there are well-pleaded factual allegations, a court Ashcroft v. However, "the tenet that a Threadbare Iqbal, 129 S. Ct. at 1950 United States District Court For the Northern District of California 10 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 11 allegations made in a complaint must be both "sufficiently detailed 12 to give fair notice to the opposing party of the nature of the 13 claim so that the party may effectively defend against it" and 14 sufficiently plausible such that "it is not unfair to require the 15 opposing party to be subjected to the expense of discovery." 16 v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011). 17 C. 18 The Starr Rule 12(f) provides that "[t]he court may strike from a Motion to Strike 19 pleading an insufficient defense or any redundant, immaterial, 20 impertinent, or scandalous matter." 21 Motions to strike are generally regarded with disfavor. 22 County of San Mateo, No. 06–3923, 2007 WL 902551, at *1 (N.D. Cal. 23 Mar. 22, 2007). 24 to "avoid the expenditure of time and money that must arise from 25 litigating spurious issues by dispensing with those issues prior to 26 trial." 27 1993), rev'd on other grounds, 510 U.S. 517 (1994). Fed. R. Civ. P. 12(f). Ganley v. The essential function of a Rule 12(f) motion is Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 28 5 1 IV. DISCUSSION 2 A. 3 While Plaintiff does not challenge the state citizenship of Plaintiff's Motion to Remand 4 Defendant or the satisfaction of the amount-in-controversy, he 5 makes two arguments in favor of remanding the action to state 6 court. 7 more than thirty days after Defendant was served with the Initial 8 Complaint, and thus Defendant's removal was untimely under 28 9 U.S.C. § 1446(b). Second, he argues that remand is proper because United States District Court For the Northern District of California 10 11 First, he argues that Defendant filed the Notice of Removal he intends to join a non-diverse Doe defendant. Under 28 U.S.C. § 1446(b), The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 12 13 14 15 16 17 18 See MTR. Plaintiff argues that Defendant "was aware of the 19 circumstances surrounding the allegations of the original complaint 20 as early as January 2010," and hence Defendant's February 2011 21 removal was beyond the thirty-day removal period provided by § 22 1446(b). Id. at 4. 23 Defendant counters that Plaintiff did not plead his 24 citizenship in the Initial Complaint, and the first time 25 Plaintiff's citizenship was pleaded was in the FAC filed January 26 28, 2011. 27 thirty-day deadline for removal was not triggered until the FAC was 28 filed, and so removal was timely. MTR Opp'n at 2-3. Defendant argues that as such, the Plaintiff responds that 6 1 Defendant should have surmised Plaintiff's citizenship from the 2 facts alleged in the Initial Complaint -- namely, that Plaintiff 3 underwent surgery in San Rafael, California. 4 Plaintiff writes: "Patients on a Kaiser plan rarely travel out of 5 their area for common medical services and there is no indication 6 so far that Kaiser San Rafael was or is a Mecca for wrist surgery 7 at the time of surgery." 8 9 Reply at 2. Id. "[N]otice of removability under § 1446(b) is determined through examination of the four corners of the applicable United States District Court For the Northern District of California 10 pleadings, not through subjective knowledge or a duty to make 11 further inquiry." 12 694 (9th Cir. 2005). 13 location of the hospital where Plaintiff's surgery took place that 14 Plaintiff was a California resident. 15 argument fails. 16 Harris v. Bankers Life & Cas. Co., 425 F.3d 689, Defendant could not have known from the Therefore, Plaintiff's first Plaintiff's second argument is that the action should be 17 remanded because Plaintiff intends to join a non-diverse Doe 18 defendant, defeating diversity. 19 "nothing more than a thinly disguised attempt to defeat diversity 20 jurisdiction," and notes, "Plaintiff has cited to no case law which 21 allows a court to consider a prospective defendant in determining 22 whether to remand." 23 MTR at 7. Defendant calls this MTR Opp'n at 4. The Court finds this argument to fail as well; the Court looks 24 to the pleadings, not the speculation of the parties, to determine 25 whether removal was proper, and finds that removal was proper here. 26 The Court ordered supplemental briefing on this motion in 27 light of language within 28 U.S.C. § 1446(b) prohibiting removal on 28 the basis of diversity jurisdiction more than one year after 7 1 commencement of the action. ECF No. 32. 2 this was a procedural limitation and challenged both its 3 applicability and what it perceived as the Court's sua sponte 4 raising of it. 5 § 1446(b)'s one-year bar "only bars removal of actions which were 6 not originally removable," and claims that while the Initial 7 Complaint failed to put Defendant on notice of Plaintiff's 8 California citizenship, it did not change the "underlying fact that 9 Plaintiff was a resident of California." MTR Supp. Opp'n at 1-2. Defendant argued that Defendant argued that Id. at 3. Plaintiff used United States District Court For the Northern District of California 10 his supplemental brief to restate law cited by the Court and the 11 arguments made in his MTR. 12 The Court is persuaded by Defendant, and finds removal of this 13 action to be timely and proper. Accordingly, Plaintiff's MTR is 14 DENIED. 15 B. 16 In its MTD, Defendant argues that Plaintiff's two strict Defendant's Motions to Dismiss and Strike 17 liability claims fail to state a claim upon which relief can be 18 granted because "claims of design defect of an implantable medical 19 device" are barred by law. 20 Plaintiff's sixth and seventh claims sound in fraud and are not 21 pleaded with the required specificity. 22 23 1. MTD at 1. Defendant also argues that Id. Design Defects In California, it has long been the law that implanted medical 24 devices are exempted from strict liability for design defects. 25 Brown v. Super. Ct., 44 Cal. 3d 1049, 1069 (1988); Artiglio v. 26 Super. Court, 22 Cal. App. 4th 1388, 1393 (Ct. App. 1994). 27 Plaintiff's response is that the present case is factually 28 distinguishable because it involves a "surgical screw," whereas 8 1 Brown involved a drug taken internally and Artiglio involved breast 2 implants. 3 wholly devoid of merit; Plaintiff makes no logical argument that 4 Brown and Artiglio should not cover the surgical screw at issue 5 here. 6 valid strict liability claims premised on Defendant's failure to 7 warn or a manufacturing defect, the Court does not dismiss them in 8 their entirety. 9 action premised on defective design of the device. MTD at 3. The Court finds Plaintiff's argument to be Because Plaintiff's first and second claims still recite Rather, it DISMISSES, with PREJUDICE, any cause of Likewise, it United States District Court For the Northern District of California 10 STRIKES all references to the allegedly defective design of the 11 device as immaterial under Rule 12(f). 2. 12 Fraud Claims Defendant additionally argues that Plaintiff has failed to 13 See MTD at 14 plead his fraud claims with the requisite specificity. 15 1. 16 "grounded in fraud," they must plead their claim with particularity 17 as required by Rule 9(b) of the Federal Rules of Civil Procedure. 18 See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-66 (9th Cir. 19 2004); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 20 2003). 21 how" of the fraud. 22 plaintiff satisfies the particularity requirement only if his or 23 her allegations are "specific enough to give defendants notice of 24 the particular misconduct which is alleged to constitute the fraud 25 charged so that they can defend against the charge and not just 26 deny that they have done anything wrong." 27 236 F.3d 1014, 1019 (9th Cir. 2001) (citation and internal 28 quotation marks omitted). Where plaintiffs allege fraud, or conduct that is sufficiently Plaintiffs must include "the who, what, when, where, and Vess, 317 F.3d at 1106 (citations omitted). 9 A Bly-Magee v. California, Plaintiff does not argue that his fraud claims satisfy Rule 1 2 9(b) -- rather, he requests leave to amend his complaint. 3 Defendant argues that if the Court allows Plaintiff to amend its 4 FAC, Defendant "will be severely prejudiced because it will be 5 forced to engage in further motion practice before the court, 6 incurring additional fees and costs to strike baseless and 7 frivolous claims." The Court finds Plaintiff's fraud claims to be extremely 8 9 Reply at 3. poorly pleaded. Plaintiff fails to identify the "who, what, when, United States District Court For the Northern District of California 10 where," or "how" of the alleged fraud. Nor does he allege facts in 11 his MTD Opposition that would tend to support his fraud claims. 12 For these reasons, the Court DISMISSES Plaintiff's claims for fraud 13 and fraudulent concealment WITHOUT PREJUDICE. 14 Plaintiff has made no attempt to justify his fraud claims, the 15 Court does not grant Plaintiff leave to amend his Complaint at this 16 time. 17 claims sounding in fraud, he must first seek leave of the Court. 18 Should Plaintiff amend his FAC to include "baseless and frivolous 19 claims," he will face appropriate sanctions under Federal Rule of 20 Civil Procedure 11, 28 U.S.C. § 1927, and/or the Court's inherent 21 authority. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// However, because Should Plaintiff desire to amend his Complaint to include 10 1 2 V. CONCLUSION For the foregoing reasons, Plaintiff Randall Ray Mitchell's 3 Motion to Remand is DENIED. 4 Dismiss is GRANTED IN PART and DENIED IN PART. 5 WITH PREJUDICE any strict liability cause of action premised on 6 design defect and DISMISSES WITHOUT PREJUDICE Plaintiff's sixth and 7 seventh causes of action for fraud and fraud (concealment). 8 Defendant's Motion to Strike is GRANTED: the Court STRIKES all 9 references in Plaintiff's FAC to the allegedly defective design of United States District Court For the Northern District of California 10 Defendant Acumed, LLC's Motion to The Court DISMISSES the Articulating Scaphoid Lunate Fixation device. 11 12 IT IS SO ORDERED. 13 14 15 Dated: June 13, 2011 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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