389 F. Supp. 3d 399
W.D. Va.2019Background
- Plaintiff Susan Cardoza received a ceramic hip liner in December 2016 that allegedly fractured, causing emergent revision surgery in March 2017; some ceramic shards remained in her body.
- During the first revision, a DePuy representative (Wimbish) took possession of explanted parts; the parts were later examined by DePuy and CeramTec and eventually returned to Cardoza in poor condition and with unclear chain of custody.
- Cardoza sued in Virginia state court against out-of-state manufacturers (DePuy and CeramTec groups) and three Virginia residents: the hospital, Spectrum (surgeon’s employer), and Wimbish. Claims include products liability, conversion, wrongful disclosure of medical information, and spoliation.
- DePuy removed the action to federal court invoking diversity jurisdiction; Cardoza moved to remand arguing procedural defects and that the in-state defendants destroy diversity (they are not fraudulently joined). DePuy sought a stay pending MDL transfer and argued fraudulent joinder/misjoinder.
- The court conducted a preliminary merits review, found removal likely improper, addressed procedural defects as de minimis, concluded the in-state defendants were not fraudulently joined (conversion claim viable), declined to sever, denied fee-shifting, remanded the case to state court, and denied the stay as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural compliance with 28 U.S.C. §1446 (attachments & notice) | Removal defective for failing to attach all state-court process and not promptly serving Spectrum | Omissions were inadvertent, cured, and de minimis | Court: procedural defects were minimal/curable; no remand on that basis |
| Fraudulent joinder of in-state defendants (destruction of diversity) | In-state defendants defeat diversity; plaintiff has viable state-law claims (conversion, wrongful disclosure) | Non-diverse defendants are fraudulently joined; no possibility of recovery against them | Court: fraudulent joinder not shown; conversion claim has at least a possibility of success, so diversity lacking |
| Fraudulent misjoinder / severance under Rule 21 | N/A (argued by plaintiff that claims are intertwined) | Alternatively, claims against non-diverse defendants are misjoined or should be severed so federal court can keep products claims | Court: misjoinder not shown; claims are factually and legally intertwined; severance not appropriate |
| Award of attorneys' fees for improper removal (Martin standard) | Fees requested because removal was improper | Removal was objectively reasonable given analogous authority | Court: denial of fees — removal was reasonable even if ultimately unsuccessful |
| Stay pending MDL transfer | N/A (plaintiff opposed stay) | Stay and let JPML/MDL court decide remand and transfer | Court: denied stay as moot after remand |
Key Cases Cited
- Maryland Stadium Authority v. Ellerbe Becket, 407 F.3d 255 (4th Cir. 2005) (removal jurisdiction must be strictly construed)
- Hartley v. CSX Transp., Inc., 187 F.3d 422 (4th Cir. 1999) (resolve doubts in favor of remand; burden on removing party)
- Mayes v. Rapoport, 198 F.3d 457 (4th Cir. 1999) (fraudulent joinder standard and when courts may consider extra-pleading materials)
- AIDS Counseling & Testing Centers v. Group W Television, Inc., 903 F.2d 1000 (4th Cir. 1990) (court may consider the entire record when assessing joinder in certain contexts)
- United States v. Stockton, 788 F.2d 210 (4th Cir. 1986) (conversion requires dominion without owner authorization)
- Martin v. Franklin Capital Corp., 546 U.S. 132 (U.S. 2005) (attorney’s fees for improper removal require lack of objectively reasonable basis)
- Condominium Services, Inc. v. First Owners’ Ass’n, 281 Va. 561 (Va. 2011) (statement of Virginia law on conversion requirements)