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James R. Condo (#005867) 

Amanda Sheridan (#005867) 

SNELL & WILMER L.L.P. 

One Arizona Center 

400 E. Van Buren 

Phoenix, AZ 85004-2204 

Telephone: (602) 382-6000 

JCondo@swlaw.com 

ASheridan@swlaw.com 

Richard B. North, Jr. (admitted pro hac vice) 

Georgia Bar No. 545599 

Matthew B. Lerner (admitted pro hac vice) 

Georgia Bar No. 446986 

NELSON MULLINS RILEY & SCARBOROUGH, LLP 

Atlantic Station 

201 17th Street, NW, Suite 1700 

Atlanta, GA 30363 

Telephone: (404) 322-6000 

Richard.North@nelsonmullins.com 

Matthew.Lerner@nelsonmullins.com 

Attorneys for Defendants 

C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc.

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

IN RE: Bard IVC Filters Products Liability 

Litigation 

MDL NO. 15-02641-PHX-DGC

This Document Relates to: 

WAYNE RUDEN, 

 Plaintiff, 

v. 

C. R. BARD, INC., a New Jersey 

Corporation; AND BARD PERIPHERAL 

VASCULAR INC., an Arizona 

Corporation, 

 Defendants.

Case No. CV-16-00344-PHX-DGC 

DEFENDANTS C. R. BARD, INC. AND 

BARD PERIPHERAL VASCULAR, 

INC.’S RESPONSE IN OPPOSITION 

TO PLAINTIFF’S MOTION TO 

REMAND 

Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively, “Bard”) 

hereby file this Response in Opposition to Plaintiff’s Motion to Remand (“Plaintiffs’ 

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Motion”). 

I. INTRODUCTION

This Court should deny Plaintiff’s Motion because Bard properly removed this case to 

federal court based on diversity jurisdiction. Bard is a corporation that is not a citizen of 

California, and Plaintiff is a California citizen. See Compl. [Dkt. No. 1-2] at ¶¶ 3, 7-8. 

Although Defendant California Pacific Medical Center (“CPMC”) is allegedly a citizen of 

California, its citizenship should be ignored for purposes of determining diversity because 

Plaintiff’s claims against CPMC do not arise from the same transaction or occurrence or 

series of transactions or occurrences as his product liability claims against Bard. Therefore, 

Plaintiff has fraudulently misjoined CPMC.1

Alternatively, Bard requests that this Court sever and remand Plaintiff’s claims against 

CPMC pursuant to Federal Rules of Civil Procedure Rule 21 so that Plaintiff’s remaining 

product liability claims against Bard can stay and be decided in this MDL. See, e.g., Sutton v. 

Davol, Inc., 251 F.R.D. 500, 505 (E.D. Cal. 2008) (severing and remanding fraudulently 

misjoined medical malpractice claims against health care providers in product liability action 

against medical device manufacturer); Greene v. Wyeth, 344 F. Supp. 2d 674, 685 (D. Nev. 

2004) (severing and remanding medical malpractice claims against a health care provider in a 

products liability action against a pharmaceutical company). 

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed this action on October 7, 2015 in the Superior Court of the State of 

California for the County of San Francisco. Bard received Plaintiff’s Original Complaint on 

October 13, 2015. On November 12, 2015, Bard timely removed the case to the United States 

District Court for the Northern District of California based on diversity jurisdiction under 18 

U.S.C. § 1332. See Bard’s Notice of Removal [Dkt. No. 1]. Diversity jurisdiction exists 

 1

 Additionally, CPMC has filed a Motion to Dismiss [MDL 2641 Dkt. No. 870], 

arguing that Plaintiff fails to state a claim against CPMC that is plausible on its face. See id.

at 1-16. To the extent this Court agrees that Plaintiff has failed to state a claim against CPMC, 

CPMC is fraudulently joined, and its citizenship may be ignored for purposes of determining 

diversity jurisdiction. See McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). 

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because the non-diverse health care provider defendant, CPMC, has been fraudulently 

misjoined by Plaintiff. Accordingly, CPMC’s citizenship should be ignored for purposes of 

determining whether diversity of citizenship exists. See Tapscott v. MS Dealer Serv. Corp., 

77 F.3d 1353 (11th Cir. 1996) (holding diversity of citizenship requirement was satisfied by 

reason of fraudulent misjoinder doctrine because the alleged transactions involving the nondiverse defendants were wholly distinct from the alleged transactions involving the diverse 

defendants), abrogated on other grounds in Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th 

Cir. 2000). 

Bard and CPMC subsequently filed Motions to Dismiss on November 19, 2015 and 

December 1, 2015, respectively. See Motions to Dismiss [Dkt. Nos. 18 and 28]. On 

December 3, 2015, Plaintiff filed his First Amended Complaint [Dkt. No. 31] (“FAC”) in an 

apparent attempt to address the multiple problems in his Original Complaint as pointed out by 

Bard in its Notice of Removal [Dkt. No. 1] and by all defendants’ in their Motions to Dismiss 

[Dkt. Nos. 18 and 28]. In particular, likely recognizing that the claims in his Original 

Complaint against Bard and CPMC do not arise out of the same transaction or occurrence, 

Plaintiff in his FAC has attempted to plead additional facts that purport to link his claims 

against Bard and CPMC. See, e.g., FAC [Dkt. No. 31] at ¶ 48. 

On February 4, 2016, this action was transferred to this MDL No. 2641, because 

Plaintiff makes the same allegations against Bard that the plaintiffs in the MDL make. See 

Transfer Order [MDL 2641 Dkt. No. 562]. On February 9, 2016, Plaintiff filed the instant 

Motion to Remand. See Pl.’s Mot. to Remand [MDL 2641 Dkt. No. 603]. 

III. LEGAL ARGUMENT 

A. Plaintiff Has Fraudulently Misjoined CPMC 

1. Plaintiff’s Original Complaint Governs Whether Removal Is Appropriate 

Plaintiff filed his FAC on December 3, 2015 in an attempt to address the multiple 

problems in his Original Complaint as pointed out by Bard in its Notice of Removal and by 

all defendants’ in their Motions to Dismiss. Importantly, Bard’s Notice of Removal points out 

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that Plaintiff’s allegations in his Original Complaint against CPMC relate exclusively to 

CPMC’s alleged inaction in failing to inform Plaintiff about a publically available FDA 

notice in August 2010, more than six years after CPMC treated Plaintiff. See Bard’s Notice of 

Removal [Dkt. No. 1] at p. 2. Plaintiff’s allegations in his Original Complaint against CPMC 

do not relate to CPMC’s care and treatment of Plaintiff when he received his Bard IVC Filter 

in 2004. See id. Recognizing that his allegations against Bard and CPMC do not arise out of 

the same transaction or occurrence, Plaintiff amended his Complaint and re-cast his 

allegations against CPMC as somehow relating to CPMC’s treatment and care of Plaintiff in 

2004. See, e.g., Pl.’s FAC [Dkt. No. 31] at ¶ 12 (asserting an entirely new theory of liability 

against CPMC that it allegedly “already knew at that time of implementation, but failed to 

inform Plaintiff, that the device had hidden dangers”); id. at ¶ 11 (asserting new argument 

that CPMC allegedly “knew the BRF was defective and unreasonably dangerous and was 

causing injury and death to patients who received it”).2

For purposes of determining whether it has subject matter jurisdiction, this Court 

should examine the complaint that existed at the time of removal. See Bennett v. First Am. 

Prop. & Cas. Ins. Co., No. CV-15-08003-PCT-JAT, 2015 WL 1969087, at *2 (D. Ariz. 

May 1, 2015) (“‘[J]urisdiction must be analyzed on the basis of the pleadings filed at the time 

of removal without reference to subsequent amendments.’” (quoting Sparta Surgical Corp. v. 

Nat’l Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998))); Shupe v. Cricket 

Commc’ns, Inc., No. CIV 13-1052-TUC-CKJ, 2014 WL 119458, at *4 (D. Ariz. Jan. 14, 

2014) (“In determining whether a defendant properly removed a complaint, a court must 

examine the complaint as it existed when the petition for removal was filed.”); Addington v. 

Bradford, No. CV-08-1728-PHX-NVW, 2008 WL 4999163, at *1 (D. Ariz. Nov. 21, 2008) 

(“Jurisdiction under 28 U.S.C. § 1441 depends solely on the complaint filed in state court, 

irrespective of post-removal amendments.”); Stonebrae, L.P. v. Toll Bros., No. C-08-0221 

 2

 Paragraphs 11 and 12 of Plaintiff’s First Amended Complaint are new and are not 

found in Plaintiff’s Original Complaint. Compare Pl.’s Original Complaint [Dkt. No. 1-2] 

with Pl.’s FAC [Dkt. No. 31]. 

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EMC, 2008 WL 2157000, at *5 (N.D. Cal. May 21, 2008) (refusing to consider the plaintiff’s 

first amended complaint, filed four days after removal in an attempt to defeat diversity 

jurisdiction, and instead considering only the plaintiff’s original complaint); see also Kruso v. 

International Tel. & Tel. Corp., 872 F.2d 1416, 1426 n.12 (9th Cir. 1989) (noting that 

because the right of removal is determined by the pleadings as they stand when the petition 

for removal is filed, the court “will not consider the allegations contained in [an] unfiled 

Proposed First Amended Complaint”). 

Here, at the time of removal, Plaintiff’s operative pleading was his Original 

Complaint. Bard removed this action on November 12, 2015 [Dkt. No. 1], and Plaintiff filed 

his FAC on December 3, 2015 [Dkt. No. 31]. Therefore, in deciding this Motion to Remand, 

this Court should assess the Original Complaint and disregard Plaintiff’s FAC, which was 

filed after Bard’s Notice of Removal. 

2. CPMC Is Fraudulently Misjoined 

As demonstrated in Bard’s Notice of Removal, Plaintiff has fraudulently misjoined 

CPMC, and Bard properly removed this case to federal court. See Bard’s Notice of Removal 

[Dkt. No. 1] at pp. 6-8. Where a defendant is fraudulently misjoined, its presence will not 

defeat diversity. See Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir. 1996) 

(holding diversity of citizenship requirement was satisfied by reason of fraudulent misjoinder 

doctrine because the alleged transactions involving the non-diverse defendants were wholly 

distinct from the alleged transactions involving the diverse defendants), abrogated on other 

grounds in Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000); Sutton v. Davol, Inc., 

251 F.R.D. 500, 505 (E.D. Cal. 2008) (applying fraudulent misjoinder doctrine and holding 

that claims involving products liability and medical negligence do not arise out of the same 

transaction or occurrence and should not be joined together); Greene v. Wyeth, 344 F. 

Supp. 2d 674, 684-85 (D. Nev. 2004) (“[T]his Court agrees with the Fifth and Eleventh 

Circuits that the [Tapscott] rule is a logical extension of the established precedent that a 

plaintiff may not fraudulently join a defendant in order to defeat diversity jurisdiction in 

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federal court.”) (internal citations omitted). 

Federal courts within the Ninth Circuit have applied the doctrine of fraudulent 

misjoinder to cases involving claims for medical negligence and products liability. For 

instance, in Sutton, 251 F.R.D. 500 (E.D. Cal. 2008), the court held that plaintiffs’ 

malpractice claims against defendant healthcare providers were fraudulently misjoined with 

claims against the defendant manufacturers for the allegedly defective mesh patch. Id. at 503-

505. The court found “compelling” the defendants’ arguments in favor of removal, 

“especially in the context of Multi-District Litigation.” Id. at 504 (emphasis added). Thus, 

the court severed the claims against the healthcare providers and remanded them to state court 

“so as to preserve the removing Defendants’ right to removal in the remaining multidistrict 

action and to preserve the interests of judicial expediency and justice so that all pre-trial 

discovery on the products liability case can be coordinated in a single forum.” Id. at 505. 

Courts in other Circuits have likewise held that claims against a health care provider 

for medical malpractice are not properly joined with a product liability action against a 

manufacturer if they do not arise out of the same transaction or occurrence and, instead, are 

legally and factually distinct from one another. 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. Proc. 20(a))); Stone v. Zimmer, Inc., No. 09-08202-CIV, 2009 WL 

1809990, at*4 (S.D. Fla. June 25, 2009) (“The joinder of the malpractice claim against [the 

doctor] and the [pain management center] with the product liability claim against [the product 

manufacturer] is thus inappropriate because these claims do not both involve common 

questions of law or fact and do not assert joint, several or alternative liability arising out of 

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the same transaction, occurrence or series of transactions or occurrences.”) (internal quotation 

omitted); In re Guidant Corp., Implantable Defibrillators Prods. Liab. Litig., MDL No. 05-

1708, Case No. 07-1129, 2007 WL 5377783, at *7 (D. Minn. June 4, 2007) (severing and 

remanding only the claims against defendant hospital because “the basis for the causes of 

action against [the hospital] do not arise from the same transaction and occurrences as those 

in the causes of action against the [medical device manufactures]”); In re Rezulin Products 

Liab. Litig., No. 00 CIV. 2843 (LAK), 2003 WL 21276425, at *1 (S.D.N.Y. June 2, 2003) 

(plaintiff fraudulently misjoined medical malpractice claims with product liability claims 

“because the claims do not both involve common questions of law or fact and assert ‘joint, 

several, or alternative liability . . . arising from the same transaction, occurrence, or series of 

transactions or occurrences.’” (quoting Fed. R. Civ. Proc. 20(a))). 

Bard acknowledges that the Ninth Circuit has not yet adopted or rejected the 

fraudulent misjoinder doctrine, and that, as Plaintiff points out, certain federal district court 

opinions in California have declined to apply the doctrine of fraudulent misjoinder. However, 

Plaintiff’s brief fails to address Bard’s argument that the legal and factual basis for applying 

fraudulent misjoinder in this action is particularly “compelling” in the context of a pending 

MDL, where Plaintiff’s claims against Bard can be handled in the most efficient and 

consistent manner. Sutton, 251 F.R.D. at 504 (“Defendants’ legal and factual position 

[advocating for the application of fraudulent misjoinder] is compelling, especially in the 

context of Multidistrict Litigation.”). Plaintiff’s brief also fails to take into account the stark 

difference between his product liability claims against Bard on the one hand and his medical 

malpractice claims against CPMC on the other. 

a. Plaintiff’s Claims Against CPMC and Bard Do Not Arise Out of the 

Same Transaction or Occurrence, or Series of Transactions or 

Occurrences 

Like the plaintiff’s claims in Sutton, Plaintiff’s medical malpractice claims against 

CPMC do not arise out of the same transaction or occurrence, or series of transactions or 

occurrences, as his products liability claims brought against Bard. Thus, joinder of the claims 

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against CPMC and Bard fails to meet the requirements under Federal Rule 20, which permits 

joinder of defendants in a single action if (i) “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 (ii) “any question of law or fact 

common to all defendants will arise in the action.” Fed. R. Civ. Proc. 20(a)(2). 

Here, the products liability claims against Bard are based on the “development, testing, 

assembling, manufacture, packaging, labeling, preparing, distribution, marketing, supplying, 

and/or selling” of the Bard Recovery® Filter. Compl. [Dkt. No. 1-2] at ¶ 1. By contrast, the 

medical malpractice and breach of fiduciary duty claims against CPMC are based on whether 

CPMC owed a duty to Plaintiff six years after it provided its treatment and care for Plaintiff, 

and whether CPMC breached the duty of care and/or its fiduciary duty to Plaintiff by 

allegedly failing to inform Plaintiff about a publically available FDA Public Health 

Notification directed to physicians and health care providers on August 9, 2010. See, e.g., id.

at ¶¶ 54-62. 

Plaintiff’s Complaint would require one jury to analyze Bard’s state of knowledge at 

the time that the filter at issue was designed, developed, tested, and sold, and to also 

separately assess the knowledge of and standard of care applicable to a hospital in assessing a 

notice by the FDA about IVC filters years after the filter was developed and sold. Of note, the 

FDA notice relied on by Plaintiff in its action against CPMC does not deal specifically with 

the Recovery® Filter or even filters manufactured by Bard, but instead deals with all 

retrievable IVC filters that had ever been marketed up to that time.3

 Therefore, Plaintiff’s 

theory against Bard is specific to the Recovery® Filter, whereas, Plaintiff’s theory against 

CPMC would require a jury to assess CPMC’s duty to inform all of its patients that ever had 

an IVC filter placed prior to the FDA’s notice in 2010. Plaintiff’s claims allege divergent 

theories against Bard and CPMC that involve different duties, different time frames, and 

 3 See FDA’s August 9, 2010 Notice, available at 

http://www.fda.gov/MedicalDevices/Safety/AlertsandNotices/ucm221676.htm. 

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different products. Thus, the claims against CPMC are legally and factually distinct from the 

claims against Bard, and they are fraudulently misjoined. 

Even if this Court were to look to Plaintiff’s FAC in assessing Plaintiff’s Motion to 

Remand, the same result would apply. Under Plaintiff’s re-cast allegations in his FAC, the 

claims against CPMC turn on whether it discharged its duty of care as a health-care provider. 

See FAC [Dkt. No. 31] at ¶¶ 67-68, 122-123. Bard’s alleged development, sale, testing, 

and/or regulatory compliance with regard to its Recovery® Filter are immaterial to these 

claims against CPMC. See Sutton, 251 F.R.D. at 505 (“Plaintiffs’ claims based on strict 

products liability against the removing Defendants are separate from Plaintiffs’ claims of 

medical malpractice against the California Defendants in implanting a previously recalled 

patch in Plaintiff . . . [the] claims against the California Defendants are not based on the 

allegedly negligent testing and manufacture of the Patch and cannot be under California 

law.”); see also Greene, 344 F. Supp. 2d at 683 (“Although each of the Plaintiffs’ claims 

against the Wyeth Defendants may regard the ‘same transaction or occurrence’—i.e., the 

manufacture and marketing of Fen-Phen—this characterization of the complaint would not 

apply equally to the physician and sales representative who were joined as Defendants.”). 

Under similar circumstances, courts have found that medical malpractice and product liability 

claims do not arise out of the same transaction or occurrence. See In re Guidant, 2007 WL 

5377783 at **5-6 (holding that claims involving products liability and medical negligence do 

not arise out of the same transaction or occurrence and should not be joined together); Stone, 

2009 WL 1809990, at *4 (“The joinder of the malpractice claim against [the doctor] and the 

[pain management center] with the product liability claim against [the product manufacturer] 

is thus inappropriate because these claims do not both involve common questions of law or 

fact and do not assert joint, several or alternative liability arising out of the same transaction, 

occurrence or series of transactions or occurrences.”) (internal quotation omitted); In re 

Rezulin, 2003 WL 21276425 at **1-2 (where plaintiff attempted to assert product liability 

claims against physician defendant in addition to a medical malpractice claim, court noted 

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that “plaintiff had no meaningful possibility of success” against the physician on the product 

liability claims and that defendant physician and defendant manufacturer were improperly 

joined in the action as “the claims [that were properly asserted against them independently of 

one another] do not both involve common questions of law or fact and assert ‘joint, several, 

or alternative liability . . . arising from the same transaction, occurrence, or series of 

transactions or occurrences’”) (citing Fed. R. Civ. P. 20). 

Because Plaintiff’s medical malpractice claims against CPMC and his product liability 

claims against Bard do not arise out of the same transaction or occurrence, or series of 

transactions or occurrences, they are improperly joined under Rule 20. 

b. Fraudulent Misjoinder Properly Protects Defendants’ Right To 

Remove Diverse Claims From Unwarranted Forum Manipulation 

The doctrine of fraudulent misjoinder prevents a plaintiff from avoiding removal by 

improperly joining claims against a non-diverse defendant that are legally and factually 

distinct from proper claims against a diverse defendant. Thus, like the doctrine of fraudulent 

joinder, fraudulent misjoinder prevents a plaintiff from interfering with a defendant’s right to 

removal. See Sutton, 251 F.R.D. at 505 (noting that fraudulent misjoinder “preserve[s] the 

removing Defendants’ right to removal in the remaining multidistrict action”). Cf. id. at 503 

(“A defendant’s right of removal cannot be defeated by a fraudulent joinder of a resident 

defendant having no real connection with the controversy” (internal quotation marks 

omitted)). 

Plaintiff argues that fraudulent misjoinder is “bad policy” because a court must 

allegedly first determine whether it has jurisdiction before it can exercise its power to sever 

certain claims. Pl.’s Mot. to Remand [MDL 2641 Dkt. No. 603] at p. 7. This argument misses 

the point. By acknowledging that the claims against Plaintiff are fraudulently misjoined, the 

Court has subject matter jurisdiction to act, because the presence of a fraudulently misjoined 

defendant does not defeat diversity. See Tapscott, 77 F.3d at 1359 (11th Cir. 1996) (holding 

that the presence of fraudulently misjoined defendant did not defeat diversity). Cf.

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Kensinger v. E.I. Du Pont de Nemours, 244 Fed. App’x 114, 116 (9th Cir. 2007) (holding that 

the presence of a fraudulently joined defendant is ignored for purposes of determining 

diversity). 

Plaintiff also argues that “[t]he better practice is to bring a motion in state court to 

challenge joinder.” Pls. Mot. to Remand [MDL 2641 Dkt. No. 603] at p. 7 (quoting Carper v. 

Adknowledge, Inc., 2013 WL 5954898, at *4 (C.D. Cal. 2013)). However, moving to sever in 

state court prior to removal would offer defendants no protection against unfair forum 

manipulation. Under the “voluntary act” rule, a complaint that is not initially removable on its 

face can become removable only by a voluntary act of the plaintiff. See 28 U.S.C. 

§ 1446(b)(3); Self v. Gen. Motors Corp., 588 F.2d 655, 657 (9th Cir. 1978) (“[A] suit remains 

in state court unless a “voluntary” act of the plaintiff brings about a change that renders the 

case removable”). Therefore, even if a motion to sever were successful in state court, it is 

unlikely that a defendant could then remove the now-diverse claims to federal court because 

an order severing claims over the plaintiff’s opposition is not a “voluntary act.” The claims 

would be severed, but the defendant still would be deprived of its right to a federal forum. 

The fraudulent misjoinder doctrine solves this conundrum by protecting the defendant’s right 

to remove while also allowing for the post-removal severance of claims that are not properly 

joined. 

Accordingly, this Court can and should find that CPMC is fraudulently misjoined to 

adequately protect Defendants’ right to remove the diverse claims alleged against them. 

c. Fraudulent Joinder Test Does Not Apply to Fraudulent Misjoinder 

Plaintiff argues that even if this Court were to apply the fraudulent misjoinder

doctrine, it should follow “the same test applied for fraudulent joinder” and should apply the 

doctrine only “when the plaintiff obviously cannot state a claim against a defendant even after 

amending his or her complaint.” Pl.’s Mot. to Remand [MDL 2641 Dkt. No. 603] at p. 9 

(emphasis added). This argument confuses the issues and has been rejected by another federal 

court in within the Ninth Circuit. As the court in Sutton stated in rejecting this same 

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argument, “[b]ecause the Tapscott fraudulent misjoinder exception is applied, the McCabe 

test for fraudulent joinder is inapplicable.”4 Sutton, 251 F.R.D. at 505. Therefore, to succeed 

on its fraudulent misjoinder argument, Bard does not need to demonstrate that Plaintiff cannot 

state a claim against CPMC.5

B. Consent of CPMC Is Not Needed for Removal 

Plaintiff erroneously argues that Bard’s removal was procedurally improper because 

CPMC did not join the removal or consent to it. See Pl.’s Mot. to Remand [MDL 2641 Dkt. 

No. 603] at p. 5. But a defendant’s consent to removal is not needed if that defendant is 

fraudulently misjoined. As the Eastern District of California stated, “failure to obtain the 

consent of an improperly joined defendant . . . does not negate an otherwise proper removal.” 

Sutton, 251 F.R.D. at 506. Cf. United Computer Systems, Inc. v. AT & T Corp., 298 F.3d 756, 

762 (9th Cir. 2002) (“Although the usual rule is that all defendants in an action in a state 

court must join in a petition for removal, the ‘rule of unanimity’ does not apply to ‘nominal, 

unknown or fraudulently joined parties’“); Rico v. Flores, 481 F. 3d 234, 239 (5th Cir. 2007) 

(“[A] removing party need not obtain the consent of a co-defendant that the removing party 

contends is improperly joined”). Here, because CPMC is fraudulently misjoined, Bard was 

not required to obtain its consent prior to removing this action. 

C. Alternatively, Plaintiff’s Claims Against CPMC Should Be Severed and 

Remanded Pursuant to Rule 21 

For the reasons set forth in Section III.B, supra, Plaintiff’s claims against CPMC are 

fraudulently misjoined to the product liability claims against Bard and should therefore be 

severed and remanded. In the alternative, if this Court finds that CPMC is not fraudulently 

misjoined, this Court should sever and remand the claims against it pursuant to Federal Rule 

 4

 Plaintiff cites Davis v. Prentiss Props. Ltd., 66 F. Supp. 2d 1112 (C.D. Cal. 1999) to 

support his argument regarding the application of the fraudulent joinder test. See Pl.’s Mot. to 

Remand [MDL 2641 Dkt. No. 603] at p. 9. The Davis court relies on McCabe v. General 

Foods Corp., 811 F.2d 1336 (9th Cir. 1987) in forming the test for fraudulent joinder. See 

Davis, 66 F. Supp. 2d at 1114. 

5

 Regardless, as noted above, CPMC has filed a Motion to Dismiss [MDL 2641 Dkt. 

No. 870] asserting that Plaintiff cannot state a claim against it. 

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of Civil Procedure 21. 

The court in Greene recognized such authority under Rule 21 in a similar context: 

[T]his Court is mindful of its authority under the Federal Rules of Civil 

Procedure, Rule 21, to add or drop parties to a suit “at any stage of the 

action and on such terms as are just.” Therefore, the Court is inclined to 

sever claims where the joinder is procedurally inappropriate and clearly 

accomplishes no other objective than the manipulation of the forum, and 

where the rights of the parties and interest of justice is best served by 

severance. 

Greene, 344 F. Supp. 2d at 685. 

Similarly here, the Court should exercise its authority under Rule 21 to sever and 

remand Plaintiff’s medical malpractice claim against CPMC and deny Plaintiff’s Motion to 

Remand as to the product liability claims against Bard, as such severance would allow 

Plaintiff’s product liability claims against Bard to remain in the Bard IVC Filter MDL for 

efficient and consistent resolution. Further, the severance of Plaintiff’s malpractice claim 

against CPMC would not prejudice Plaintiff as his claims would not be dismissed, but rather 

remanded for resolution by the state court. See Fed. R. Civ. Proc. 21 (“Misjoinder of parties is 

not a ground for dismissing an action. On motion or on its own, the court may at any time, on 

just terms, add or drop a party. The court may also sever any claim against a party.”) 

D. Plaintiff Is Not Entitled to an Award of Attorneys’ Fees 

If this Court should decide to remand this action, it should deny Plaintiff’s request for 

attorneys’ fees under 28 U.S.C. § 1447(c). It is well established that “absent unusual 

circumstances, attorney’s fees should not be awarded when the removing party has an 

objectively reasonable basis for removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 

136 (2005). In the context of determining whether a magistrate appropriately assessed fees 

against Bard in a fraudulent misjoinder case where the court declined to recognize the 

doctrine, another District Court within the Ninth Circuit reversed the magistrate’s decision 

assessing attorneys’ fees against Bard, stating that “the Court cannot find that Bard lacked an 

objectively reasonable basis for seeking removal or relying on Tapscott.” Dent v. Lopez, 

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No. 1:14-CV-442-LJO-SMS, 2014 WL 3838837, at *3 (E.D. Cal. July 30, 2014). The court 

in Dent recognized “the difference in opinion between courts in the Ninth Circuit with regard 

to the fraudulent misjoinder doctrine” as a basis for Bard’s objective reasonableness in 

removing the case. Id.

Here, as in Dent, Bard has an objectively reasonable basis for removing this action. 

The Ninth Circuit has not formally accepted or rejected the Tapscott fraudulent misjoinder 

doctrine, and district courts within this Circuit have applied the doctrine in cases similar to 

this one. See Sutton, 251 F.R.D. at 504-505; Greene, 344 F. Supp. 2d at 685. Even Plaintiff 

admits that these two cases in this Circuit have applied the doctrine. See Pl.’s Mot. to Remand 

[MDL 2641 Dkt. No. 603] at p. 8. 

There is simply no basis for Plaintiff to argue that it was unreasonable for Bard to rely 

on these prior district court opinions, given the absence of binding precedent to the contrary. 

Should this Court grant Plaintiff’s Motion to Remand, it should deny Plaintiff’s request for 

attorneys’ fees.

IV. CONCLUSION 

For the foregoing reasons, Bard requests that this Court sever and remand the medical 

malpractice claims against CPMC pursuant to Rule 21 of the Federal Rules of Civil 

Procedure, because those claims are fraudulently misjoined to Plaintiff’s product liability 

claims against Bard. 

This 26th day of February 2016. 

s/Richard B. North, Jr. 

Richard B. North, Jr. 

Georgia Bar No. 545599 

Matthew B. Lerner 

Georgia Bar No. 446986 

NELSON MULLINS RILEY & SCARBOROUGH, LLP 

Atlantic Station 

201 17th Street, NW / Suite 1700 

Atlanta, GA 30363 

PH: (404) 322-6000 

FX: (404) 322-6050 

richard.north@nelsonmullins.com 

matthew.lerner@nelsonmullins.com 

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James R. Condo (#005867) 

Amanda Sheridan (#005867) 

SNELL & WILMER L.L.P. 

One Arizona Center 

400 E. Van Buren 

Phoenix, AZ 85004-2204 

PH: (602) 382-6000 

JCondo@swlaw.com 

ASheridan@swlaw.com 

Attorney for Defendants C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc. 

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on February 26, 2016, I electronically filed the foregoing

with the Clerk of the Court by using the CM/ECF system which will send notification of such 

filing to all counsel of record. 

s/Richard B. North, Jr. 

Richard B. North, Jr. 

Georgia Bar No. 545599 

NELSON MULLINS RILEY & SCARBOROUGH, LLP 

Atlantic Station 

201 17th Street, NW / Suite 1700 

Atlanta, GA 30363 

PH: (404) 322-6000 

FX: (404) 322-6050 

richard.north@nelsonmullins.com 

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