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holding "there is nothing in the removal statute that precludes [Defendant] from filing a notice of removal prior to Plaintiff effecting service of process upon it"
Summary of this case from Little v. Wyndham Worldwide Operations, Inc.Opinion
No. 13-2346-STA-cgc
09-27-2013
VICKI LINDER, Plaintiff, v. MEDTRONIC, INC., and MEDTRONIC SOFAMOR DANEK USA, INC., Defendants.
ORDER DENYING MOTION TO REMAND
Before the Court is the Plaintiff Vicki Linder's ("Plaintiff") First Motion to Remand to State Court (D.E. # 5), filed on June 20, 2013. Defendant Medtronic, Inc ("Medtronic") filed a Response (D.E. # 10) on July 15, 2013 and Plaintiff filed a Reply (D.E. # 14) on September 12, 2013. For the following reasons, the Court DENIES Plaintiff's Motion.
I. BACKGROUND
Plaintiff filed a Complaint in the Circuit Court of Shelby County, Tennessee on May 23, 2013 against Medtronic and Medtronic Sofamor Danek USA, Inc. ("MSD") (collectively, "Defendants"). Her Complaint alleged a state law products liability claim arising from the off-label use of Defendants' bio-engineered bone graft device. On May 24, 2013, Medtronic filed a Notice of Removal. At that time, neither Medtronic or MSD had been served. On June 10, 2013, Plaintiff filed a Notice of Proof of Service on MSD. To date, Medtronic has not been served.
II. ANALYSIS
Medtronic asserts that this Court has subject matter jurisdiction over this case pursuant to both 28 U.S.C. § 1331 and 28 U.S.C. § 1332. Section 1332 states that diversity jurisdiction exists in civil actions where the amount in controversy exceeds $75,000 and the action is between citizens of different states. A defendant removing a case to federal court on the basis of diversity citizenship jurisdiction has the burden of proving these jurisdictional requirements exists at the time of removal. The Sixth Circuit has further noted that "[a]ll doubts as to the propriety of removal are resolved in favor of remand."
Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000).
Smith v. Nationwide Property & Cas. Ins. Co., 505 F.3d 401, 405 (6th Cir. 2007).
Plaintiff is a citizen of Ohio. A corporation is deemed a citizen of the state in which it is incorporated as well the state where it has its principal place of business. Medtronic is a Minnesota corporation with its principal place of business in Minnesota, making it a citizen of Minnesota. MSD is a Tennessee corporation with its principal place of business in Tennessee, making it a Tennessee corporation. Since Plaintiff's citizenship is different from both defendants, complete diversity exists. Additionally, Plaintiff's prayer for relief, which requests damages of nine million dollars, satisfies the amount in controversy requirement. Therefore, the requirements for diversity jurisdiction under section 1332 are satisfied.
However, 28 U.S.C. § 1441(b) states: "A civil action otherwise removable solely on the basis of jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which the action is brought." Here, MSD is an in-state defendant, since it is a citizen of Tennessee and the action was brought in Tennessee state court. Plaintiff argues that removal is improper for two reasons: first, because Medtronic removed the case before it was served; and second, because the presence of MSD, a forum defendant, in the action precludes removal. Medtronic argues that it could properly remove, because it did so before MSD was ever served and therefore, its removal does not upset the requirements of section 1441(b). The Court agrees.
First, there is nothing in the removal statute that precludes Medtronic from filing a notice of removal prior to Plaintiff effecting service of process upon it. Service of process is not a prerequisite to a defendant exercising its right of removal. Second, "[w]here there is complete diversity of citizenship . . . the inclusion of an unserved resident defendant in the action does not defeat removal under 28 U.S.C. § 1441(b)." The parties correctly point to a split of authority regarding whether a non-forum defendant has been served. However, in reading the plain language of section 1441(b), the Court notes that the statute says that a case "may not be removed if any of the parties in interest is properly joined and served as defendants is a citizen of the State in which the action is brought." Since MDS, the forum defendant in this case, had not been served at the time Medtronic filed its notice of removal, 1441(b) is not a bar to removal. Therefore, the Court has subject matter jurisdiction over this case and the case was properly removed.
See, e.g., Delgado v. Shell Oil, 231 F.3d 165, 177 (5th Cir. 2000), cert. denied, 532 U.S. 972 (2001); Whitehurst v. Wal-Mart, 306 F. App'x 446, 448 (11th Cir. 2008); Murphy v. Studio 6, 09-2212-STA, 210 WL 503126 (W.D. Tenn. Feb 5, 2010).
McCall v. Scott, 239 F.3d 808 (6th Cir. 2001) (emphasis in original).
28 U.S.C. § 1441(b) (emphasis added). --------
Because the Court has jurisdiction over this case based on diversity of citizenship pursuant to section 1332, the Court need not address whether the requirements for federal question jurisdiction under section 1331 are met. The Motion to Remand is hereby DENIED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: September 27, 2013.