United States District Court, D. Massachusetts
IN RE STRYKER LFIT V40 FEMORAL HEAD PRODUCTS LIABILITY LITIGATION This Document Relates To: Cooney
Howmedica Osteonics Corp. et al., No. 17-cv-10829, Crowley
Howmedica Osteonics Corp. et al., No. 17-cv-10830, and Mayo
Howmedica Osteonics Corp. et al., No. 17-cv-10832.
MEMORANDUM AND ORDER
Talwani, United States District Judge.
Howmedica Osteonics Corp. and Stryker Corp. (together, the
“Howmedica Defendants”) removed three
Massachusetts state court actions to this court, asserting
diversity of citizenship between them and Plaintiffs, and
alleging that the non-diverse Defendant, Surgi-Care, Inc.,
was fraudulently joined. Notice of Removal, Cooney v.
Howmedica Osteonics Corp. , 17-cv-10829 [#1]; Notice of
Removal, Crowley v. Howmedica Osteonics Corp. ,
17-cv-10830 [#1]; Notice of Removal, Mayo v. Howmedica
Osteonics Corp. , 17-cv-10832 [#1]. The actions were
related to the pending multi-district litigation, In re:
Stryker LFIT V40 Femoral Head Products Liability
Litigation, MDL No. 17-md-2768. Plaintiffs moved to
remand these cases. See Mot. to Remand [17-md-2768,
#148; 17-cv-10829, #11] (Cooney); Mot. to Remand [17-md-2768,
#149; 17-cv-10832, #11] (Mayo); Mot. to Remand [17-md-2768,
#150; 17-cv- 10830, #11] (Crowley). The Howmedica Defendants
have opposed the motion. For the reasons that follow,
Plaintiffs' motions to remand are GRANTED.
general, “any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction, may be removed” by the defendant to
federal court. 28 U.S.C. § 1441. The court has original,
diversity jurisdiction over actions when the amount in
controversy is greater than $75, 000 and there is complete
diversity among the parties. 28 U.S.C. § 1332; Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373
(1978). It is the defendant's burden to show that federal
jurisdiction lies. Hertz Corp. v. Friend, 559 U.S.
77, 96 (2010); Coll. of Dental Surgeons of Puerto Rico v.
Connecticut Gen. Life Ins. Co., 585 F.3d 33, 39 (1st
Cir. 2009). However, “[a] plaintiff may not thwart the
exercise of a defendant's right of removal by
fraudulently joining a non-diverse defendant who has no real
connection to the case.” In re Fresenius
Granuflo/Naturalyte Dialysate Prods. Liability Litig.,
76 F.Supp.3d 321, 332 (D. Mass. 2015).
is generally recognized that, under the doctrine of
fraudulent joinder, removal is not defeated by the joinder of
a non-diverse defendant where there is no reasonable
possibility that the state's highest court would find
that the complaint states a cause of action upon which relief
may be granted against the non-diverse defendant.”
Universal Truck & Equip. Co., Inc. v.
Southworth-Milton, Inc., 765 F.3d 103, 108 (1st Cir.
2014). Stated another way, “if the 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, the joinder of the resident defendant is
fraudulent.” Id. at 108 n.3 (quoting
McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th
Cir. 1987) (citing Moore's Fed.l Practice (1986) ¶
assessing a claim of fraudulent joinder, the court is not
bound by the allegations in the complaint and may consider
affidavits and other materials that bear on the question of
whether there is a reasonable basis for joinder of a
defendant.” In re Fresenius Granuflo/Naturalyte
Dialysate Prod. Liab. Litig., 76 F.Supp.3d at 333.
“[T]he court must resolve ‘all disputed questions
of fact and any ambiguities in the current controlling
substantive law in plaintiffs' favor.'”
Phillips v. Medtronic, Inc., 754 F.Supp.2d 211, 215
(D. Mass. 2010) (quoting Badon v. RJR Nabsico Inc.,
236 F.3d 282, 286 (5th Cir. 2000)).
Howmedica Defendants argue that Plaintiffs' claims
against Defendant Surgi-Care are preempted by federal law.
They also contend that Surgi-Care did not take title to the
devices at issue, and therefore cannot be held liable under
Plaintiffs' breach of warranty cause of action. The court
considers whether Plaintiffs have failed to state a claim
against Surgi-Care, and if so, that such failure is obvious.
doctrine of federal preemption is derived from the Supremacy
Clause, which provides that federal law “shall be the
supreme Law of the Land.” U.S. Const., Art. VI, cl. 2;
Arizona v. United States, 567 U.S. 387, 399 (2012).
Preemption comes in several forms. Congress may include
explicit statutory language signaling its intent to preempt
state law. See Arizona, 567 U.S. at 399. The
Howmedica Defendants do not dispute that there is no express
federal preemption of actions involving medical devices
cleared through a 510(k) process. Defs.' Opp'n to
Pls.' Mot. to Remand [“Defs.' Opp'n”]
8 [17-md-2768, #167]; see also Riegel v. Medtronic,
Inc., 552 U.S. 312, 323 (2008); Medtronic, Inc. v.
Lohr, 518 U.S. 470, 478-79, 497 (1996).
law is also impliedly preempted in certain circumstances,
including where state laws conflict with federal law.
Arizona, 567 U.S. at 399-400; Mut. Pharm. Co.,
Inc. v. Bartlett 133 S.Ct. 2466, 2473 (2013)
(“Even in the absence of an express pre-emption
provision, the Court has found state law to be impliedly
pre-empted” under conflict preemption); Buckman Co.
v. Plaintiffs' Legal Committee, 531 U.S. 341, 349
(2001) (finding implied preemption of state law fraud claims
that conflicted with the FDA's regulatory scheme for
preemption may include those instances when
“‘compliance with both federal and state
regulations is a physical impossibility.'”
Arizona, 567 U.S. at 399 (quoting Florida Lime
& Avocado Growers, Inc. v. Paul 373 U.S. 132, 142-43
(1963)); see also English v. Gen. Elec. Co., 496
U.S. 72, 79 (1990) (finding implied conflict pre-emption
where it is “impossible for a private party to comply
with both state and federal requirements”). “The
existence of a hypothetical or potential conflict is
insufficient to warrant” preemption. Rice v. Norman
Williams Co., 458 U.S. 654, 659 (1982).
PLIVA v. Mensing, the Supreme Court found that the
FDCA's requirements for generic drugs implicitly
preempted state failure-to-warn claims where the generic drug
maker could not change the warning labels. 564 U.S. 604, 618
(2011). The Howmedica Defendants argue that compliance with
both Massachusetts laws and federal laws is similarly a
physical impossibility with regard to medical device