The opinion
JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 19-07336 PA (MAAx) Date September 11, 2019
Title David Bakos v. Johnson & Johnson, et al.
Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT JUDGE
Kamilla Sali-Suleyman Not Reported N/A
Deputy Clerk Court Reporter Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
None None
Proceedings: IN CHAMBERS - COURT ORDER
Before the Court is a Motion to Remand filed by Plaintiff David Bakos (‘Plaintiff’). (Docket
No. 9-1.) Defendants Ethicon Endo-Surgery, Inc., Maggie Cox, and Andrea Henson (“Removing
Defendants”) filed a Notice of Removal, removing this case to this Court. (Docket No. 1.) Pursuant to
Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that this matter is
appropriate for decision without oral argument. The hearing calendared for September 16, 2019 is
vacated, and the matter taken off calendar.
I. Background
In the Complaint, Plaintiff alleges that on April 9, 2019, he underwent a surgery that required
Plaintiff's surgeon to create an anastomosis following the procedure. (Docket No. 1-2 (“Compl.”) ¥ 22.)
To create the anastomosis, Plaintiff alleges his surgeon used a defective Ethicon curved intraluminal
stapler. (Id.) Plaintiff claims this stapler caused “severe injuries to Plaintiff when it failed to create a
proper anastomosis because of the ejection of a malformed stapler or uncut washer.” (d.) Following his
surgery, Plaintiff initiated this action in California state court against corporate defendants Johnson &
Johnson, Ethicon Inc., and Ethicon Endo-Surgery, Inc. (“Corporate Defendants”) and individual
defendants Jamie Wells, Maggie Cox, Jason Clarke, Isaac Wojcik, and Annie Henson (“Individual
Defendants”). (id. 9 1.) Plaintiff alleges four causes of action: (1) products liability, (2) negligence,
(3) intentional misrepresentation, and (4) negligent misrepresentation. (Id. J] 37-69.)
Plaintiff alleges that each Individual Defendant “is associated with” Corporate Defendants and
engages in the “advertisement, promotion, marketing, sales, and/or distribution of the curved
intraluminal staplers in the State of California, and specifically in the greater Los Angeles area.” (Compl
10-14, 16.) According to the Complaint, Plaintiff is a citizen of California, and all of the Individual
Defendants are citizens of California. (Id. ¥] 6, 10-14.) Johnson & Johnson and Ethicon, Inc. are
incorporated under the laws of New Jersey and have their principal places of business in New Jersey.
(Notice of Removal ¥ 12 n. 3.) Ethicon Endo-Surgery, Inc. is incorporated under the laws of Ohio and
has its principal place of business in Ohio. (Id. 10.)
JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 19-07336 PA (MAAx) Date September 11, 2019
Title David Bakos v. Johnson & Johnson, et al.
Removing Defendants filed their Notice of Removal on August 23, 2019. (Docket No. 1.)
Although Removing Defendants concede Individual Defendants are citizens of California - which would
preclude diversity jurisdiction pursuant to 28 U.S.C. § 1441(b) - Removing Defendants argue Plaintiff
fraudulently joined Individual Defendants. (Notice of Removal ¥ 7.) Plaintiff filed a Motion to Remand
on September 3, 2019, alleging Individual Defendants were not fraudulently joined. (Docket No. 9.)
I. Legal Standard
“Federal courts are courts of limited jurisdiction, having subject matter jurisdiction only over
matters authorized by the Constitution and Congress.” See, e.g., Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 377, 1148S. Ct. 1673, 128 L. Ed. 2d 391 (1994). A suit filed in state court may be
removed to federal court if the federal court would have had original jurisdiction over the suit. 28
U.S.C. § 1441(a). “The burden of establishing federal jurisdiction is on the party seeking removal, and
the removal statute is strictly construed against removal jurisdiction.” Prize Frize, Inc. v. Matrix (U.S.)
Inc., 167 F.3d 1261, 1265 (9th Cir. 1999), “Federal jurisdiction must be rejected if there is any doubt as
to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
To invoke this Court’s diversity jurisdiction, Removing Defendants must prove that (1) there is
complete diversity of citizenship between the parties, and (2) the amount in controversy exceeds
$75,000. 28 U.S.C. § 1332. A natural person must be a citizen of the United States and be domiciled in
a state to establish “state citizenship” for diversity purposes. Kantor v, Wellesley Galleries, Ltd., 704
F.2d 1088, 1090 (9th Cir. 1983). Persons are domiciled in places they reside with the intent to remain or
to which they intend to return. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).
For purposes of diversity jurisdiction, a corporation is a citizen of any state where it is incorporated and
of the state where it has its principal place of business. 28 U.S.C. § 1332(c).
I. Analysis
The Ninth Circuit recognizes an exception to the complete diversity requirement where a
defendant has been “fraudulently joined.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th
Cir. 2001). Fraudulent joinder arises if a plaintiff “fails to state a cause of action against a resident
defendant, and the failure is obvious according to the settled rules of the state.” McCabe v. Gen. Foods
Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). If the Court finds that the joinder of a non-diverse
defendant is fraudulent, that defendant’s presence in the lawsuit is ignored for the purposes of
determining diversity. See, e.g., Morris, 236 F.3d at 1067.
“There is a presumption against finding fraudulent joinder, and defendants who assert that
plaintiff has fraudulently joined a party carry a heavy burden of persuasion.” Plute v. Roadway Package
Sys., Inc., 141 F. Supp. 2d 1005, 1008 (N.D. Cal. 2001). A claim of fraudulent joinder should be denied
if there is any possibility that the plaintiff may prevail on the cause of action against the in-state
defendants. See id. at 1008, 1012. “The standard is not whether plaintiffs will actually or even probably
JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 19-07336 PA (MAAx) Date September 11, 2019
Title David Bakos v. Johnson & Johnson, et al.
prevail on the merits, but whether there is any possibility that they may do so.” Lieberman v. Meshkin,
Mazandarani, No. C-96-3344 SI, 1996 WL 732506, at *3 (N.D. Cal. Dec. 11, 1996). “In determining
whether a defendant was joined fraudulently, the court must resolve ‘all disputed questions of fact and
all ambiguities in the controlling state law in favor of the non-removing party.’” Plute, 141 F. Supp. 2d
at 1008 (quoting Dodson v, Spiliada, 951 F.2d 40, 42-43 (5th Cir. 1992)). Further, “[a]ll doubts
concerning the sufficiency of a cause of action because of inartful, ambiguous or technically defective
pleading must be resolved in favor of remand.” Id. citing Archuleta v. American Airlines, Inc., No. CV
00-1286, 2000 WL 656808, at *4 (C.D. Cal. 2000).
While a court can look at evidence including declarations, a court should remand a case “where a
defendant raises a defense that requires a searching inquiry into the merits of the plaintiff's case, even if
that defense, if successful, would prove fatal.” Morris, 236 F.3d at 1066. “Accordingly, a defendant
seeking removal based on an alleged fraudulent joinder must do more than show that the complaint at
the time of removal fails to state a claim against the non-diverse defendant.” Nation v. Bayer Healthcare
Pharmaceuticals, Inc., No. 13CV4689, 2013 WL 12144106, at *1 (C.D. Cal. Aug. 19, 2013). “Remand
must be granted unless the defendant shows that the plaintiff would not be afforded leave to amend his
complaint to cure [the] purported deficiency.” Id. (internal quotations omitted).
Removing Defendants do not dispute that Individual Defendants are citizens of California.
Removing Defendants instead argue Individual Defendants’ joinder was fraudulent because “[t]he vast
majority of Plaintiff's allegations are brought indiscriminately against all Defendants, without any
specificity as to whether certain claims or allegations pertain to only some or one defendant in
particular.” (Notice of Removal 4.) “Plaintiff's only specific allegation[] as to the [Individual
Defendants is] that they were involved in the ‘sales, marketing, and distribution of Ethicon staplers,
including the specific stapler involved in the subject incident.” (Id. 45.) Removing Defendants
presented declarations from Individual Defendants stating (1) none of the Individual Defendants “know
nor have they spoken with the doctor who performed [Plaintiffs] surgery regarding surgical staplers”;
(2) “USC Keck Hospital (where Plaintiff's surgery was performed) is not one of the accounts [Individual
Defendants] covered as it is outside their geographic region”; and (3) none of the Individual Defendants
know nor have they spoken with Plaintiff. (Id. § 6; Ex. B, Wells Decl. § 3-5; Ex, C, Cox Decl. [9 3-4;
Ex. D, Clarke Decl. J] 3-4; Ex. E, Wojcik Decl. 3-4; Ex. F, Henson Decl. {fj 4-6.)
Removing Defendants’ argument is unpersuasive. First, the evidence presented by Removing
Defendants does not directly contradict all of Plaintiff's allegations against both Individual Defendants
and Defendants. For example, Plaintiff alleges “Defendants failed to establish and maintain a complaint
file and tracking system for defective staplers to evaluate and review complaints.” (Compl. 25.) The
declarations submitted by Removing Defendants do not directly rebut this allegation. Further, while the
Complaint “may indeed be deficient as accused, . . . leave to amend those deficiencies would be
appropriate,” and “[r]emand must be granted unless the [Removing Defendants] show[] that [Plaintiff]
would not be afforded leave to amend his complaint to cure the purported deficiency.” Nation, 2013 WL
12144106, at *2.
JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 19-07336 PA (MAAx) Date September 11, 2019
Title David Bakos v. Johnson & Johnson, et al.
The case cited by Removing Defendants, Brown v. Allstate Ins. Co., 17 F. Supp. 2d 1134, 1137
(S.D. Cal. 1998) is not persuasive. In Brown, the court found that “[a]lthough Plaintiff's Complaint
[named] three individual defendants in the caption and in the heading of some causes of action, no
material allegations against these defendants [were] made.” Id. Here, Plaintiff has made material factual
and legal allegations as to all Defendants, as well as factual and legal allegations as to just Individual
Defendants.
The Court finds that Removing Defendants have not met their “heavy burden of persuasion” that
there is no possibility that Plaintiff may prevail on any of his claims against the Individual Defendants.
Neither the Complaint itself nor any evidence submitted in support of the Notice of Removal forecloses
the possibility of Plaintiff succeeding on at least some of his claims against the Individual Defendants.
Nor have Removing Defendants satisfied their burden of establishing that Plaintiff would not be granted
leave to amend to cure any purported deficiency.
Conclusion
For the reasons stated above, this Court determines that Removing Defendants have failed to
establish that complete diversity exists among Plaintiff and all Defendants. See 28 U.S.C. § 1447(c).
Thus, this Court does not have jurisdiction over this action. Accordingly, the Court remands this action
back to the Superior Court of the State of California for the County of Los Angeles, Central District,
Case No. 19STCV23902 for lack of subject matter jurisdiction.”
IT IS SO ORDERED.
u Removing Defendants also allege that the amount in controversy requirement under 28 U.S.C.
§ 1446(c)(2)(B) is satisfied. Because this Court finds that Removing Defendants have failed to establish
complete diversity, it does not address Removing Defendants’ amount in controversy argument.