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Gipe v. Medtronic, Inc.

United States District Court, W.D. Kentucky, Louisville Division

September 24, 2019

MEDTRONIC, INC., et al, Defendants.


          David J. Hale, Judge.

         Mary Teresa Gipe filed suit on behalf of her incapacitated son in state court against six defendants, [1] alleging that her son experienced a seizure and traumatic brain injury due to an over-delivery of insulin caused by malfunctions of his insulin pump and infusion set. (Docket No. 1-1, PageID # 33) Gipe alleges that Medtronic, Inc.; Unomedical Devices, SA de CV; and their respective subsidiaries (the Products Liability Defendants) designed, manufactured, marketed and sold the insulin pump and infusion set. (Id.) As to Defendant Greenhaven Apartments, Gipe claims that the apartment complex assumed a duty of protection when it installed multiple surveillance cameras on the premises. (Id., PageID # 43) Defendant Medtronic, Inc. removed the case to this Court and filed a motion to sever Greenhaven. (D.N. 1; D.N. 4) In response, Gipe filed a motion to remand. (D.N. 14) Defendant Medtronic MiniMed, Inc. then filed its own notice of removal (D.N. 18) and motion to sever Greenhaven (D.N. 19). Gipe responded with a second motion to remand. (D.N. 31) Because the Court finds that it lacks subject-matter jurisdiction over this case, Gipe’s initial motion to remand will be granted and her second motion to remand will be denied as moot, as will both motions to sever.


         According to the complaint, Gipe’s son, William, is a Type I diabetic who used a mechanical pump and associated infusion set to administer insulin. (D.N. 1-1, PageID # 32) On July 26, 2017, he experienced severe hypoglycemia and suffered a seizure due to an over-delivery of insulin and experienced a delay in treatment, resulting in a traumatic brain injury. (Id., PageID # 33) The parties dispute whether the seizure alone, the delay in treatment, or some combination of the two ultimately caused the son’s brain injury.

         Gipe alleges that the seizure was caused by a malfunctioning MiniMed Insulin Pump and Mio Infusion Set that her son was wearing at the time. (Id.) Medtronic announced a voluntary recall of all its MiniMed Infusion Sets less than two months after William’s seizure, allegedly due to a defect in the vent membrane which Medtronic determined could lead to over-delivery of insulin. (Id.) Gipe alleges that the Products Liability Defendants designed, manufactured, marketed, and sold the insulin pump and infusion set used by her son. (Id.) Gipe asserts six claims against the Products Liability Defendants: negligence, strict liability, breach of warranty, failure to warn, a claim under the Kentucky Consumer Protection Act, and a claim for punitive damages. (Id., PageID # 34-43, 44-45)

         As to Greenhaven, Gipe alleges that the apartment complex voluntarily assumed a duty to provide a reasonable measure of protection to her son when it installed multiple surveillance cameras on the premises. (Id., PageID # 43) She contends that Greenhaven breached that duty when more than two hours passed before the property manager viewed the surveillance camera footage and discovered William after his seizure. (Id., PageID # 44) This led to a delay in treatment that Gipe alleges caused, contributed to, or was a substantial factor in bringing about her son’s permanent brain injury. (Id.)

         In its Notice of Removal, Medtronic asserts that the Court has subject-matter jurisdiction because there is complete diversity among all “properly joined and severed” parties and the amount in controversy exceeds $75, 000. (Id., PageID # 1) Gipe filed both a response to Medtronic’s Notice of Removal (D.N. 12) and a motion to remand (D.N. 14), arguing that (1) the Court does not have subject-matter jurisdiction because complete diversity does not exist; (2) Medtronic failed to obtain the consent of all defendants prior to removal; (3) the Court should not sever Greenhaven; (4) Greenhaven was not fraudulently joined; and (5) there is no fraudulent misjoinder. (D.N. 12) Gipe argues that complete diversity does not exist because she and Greenhaven are both citizens of Kentucky. (D.N. 1-1, PageID # 32; D.N. 12, PageID # 111) MiniMed then filed its own notice of removal (D.N. 18) and motion to sever (D.N. 19), which are almost identical to Medtronic’s filings. (D.N. 19) Gipe argued that MiniMed could not file this second motion to sever (D.N. 29, PageID # 361), but then also filed a second motion to remand. (D.N. 31)

         Medtronic argues that removal was proper for three reasons. (D.N. 1, PageID # 2) First, it asserts that the Court may retain jurisdiction of this matter by severing the claims against the non-diverse party, Greenhaven, pursuant to Rule 21. (Id.) Second, it argues that the Court should disregard Greenhaven’s citizenship because the apartment complex is fraudulently joined. (Id.) Finally, Medtronic argues that the Court should disregard Greenhaven’s citizenship because Greenhaven is fraudulently misjoined under Rule 20. (Id.) Medtronic also argues that Greenhaven’s consent was not required or alternatively that the consent issue is moot because MiniMed filed its own notice of removal to which both Greenhaven and Medtronic consented. (D.N. 17, PageID # 171; D.N. 18; D.N. 18-7) The parties’ respective arguments across the various motions and responses are largely identical. (See D.N. 1; D.N. 4; D.N. 12; D.N. 14; D.N. 17; D.N. 18; D.N. 19; D.N. 20; D.N. 28; D.N. 29; D.N. 30; D.N. 31; D.N. 32; D.N. 33; D.N. 34; D.N. 35)


         A defendant may remove any civil action “of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). Removing defendants bear the burden of establishing federal subject-matter jurisdiction by a preponderance of the evidence. Everett v. Verizon Wireless, Inc., 460 F.3d 818, 829 (6th Cir. 2006). In a diversity case, the removing party must show (1) that “all parties on one side of the litigation are of a different citizenship from all parties on the other side of the litigation, ” and (2) that the jurisdictional minimum amount in controversy is met. Coyne v. Am. Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999) (quoting SHR Ltd. P’ship v. Braun, 888 F.2d 455, 456 (6th Cir. 1989)); see 28 U.S.C. § 1332(a). Once a case is removed, a plaintiff may bring a motion to remand under 28 U.S.C. § 1447(c). Griffin v. Middlefork Ins. Agency, No. 17-215-DLB, 2017 U.S. Dist. LEXIS 164274, at *2 (E.D. Ky. Oct. 4, 2017). Removal statutes are to be narrowly construed. Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000). Accordingly, “all doubts as to the propriety of removal are resolved in favor of remand.” Coyne, 183 F.3d at 493.

         When considering a motion to remand, the Court must examine whether the case was properly removed to federal court. See Graves v. Standard Ins. Co., 66 F.Supp.3d 920, 922 (W.D. Ky. 2014). “In a case removed to federal court, ‘[t]he existence of subject matter jurisdiction is determined by examining the complaint as it existed at the time of removal.’” Arrington v. Nationwide Mut. Fire Ins. Co., No. 3:14-cv-322-DJH, 2015 U.S. Dist. LEXIS 23082, at *2 (W.D. Ky. Feb. 26, 2015) (quoting Harper v. AutoAlliance Int’l, 392 F.3d 195, 210 (6th Cir. 2004)). “In order to remove an action based solely on diversity jurisdiction, all properly joined defendants must consent to removal, and no properly joined defendant may be a citizen of the state in which the action is brought.” Staubus v. Purdue Pharma, L.P., No. 2:17-CV-122-TAV-CLC, 2017 U.S. Dist. LEXIS 173759, at *5 (E.D. Tenn. Oct. 20, 2017) (citing 28 U.S.C. §§ 1441(b)(2), 1446(b)(2)(A)). This is known as the rule of unanimity. See Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516 (6th Cir. 2003). If a non-diverse party has been joined as a defendant, then “the removing defendant may avoid remand only by demonstrating that the non-diverse party was fraudulently joined” to defeat diversity.[2] Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 432 (6th Cir. 2012) (quoting Jerome-Duncan, Inc. v. Auto-By-Tel, LLC, 176 F.3d 904, 907 (6th Cir. 1994) (citation and internal quotations omitted)). So long as there is “arguably a reasonable basis for predicting that state law might impose liability on the facts involved, ” then “joinder is proper, and the Court must remand the case to state court.” Sandusky v. Acuity, A Mut. Ins. Co., No. 3:17-cv-516-DJH-CHL, 2018 U.S. Dist. LEXIS 73839, at *5 (W.D. Ky. May 2, 2018) (citation and internal quotations omitted); see also Coyne, 183 F.3d at 493 (“Fraudulent joinder of non-diverse defendants will not defeat removal on diversity grounds.”).

         In this case, it is undisputed that complete diversity is not evident from the face of the complaint. (See D.N. 1, PageID # 7) Accordingly, the Court must employ the “judicially created doctrine of fraudulent joinder, ” which “provides an exception to the requirement of complete diversity.” Coyne, 183 F.3d at 493. Here, the Court finds that Greenhaven was not fraudulently joined, and removal was therefore improper.

         A. Fraudulent Joinder

         “To prove fraudulent joinder, the removing party must present sufficient evidence that a plaintiff could not have established a cause of action against non-diverse defendants under state law.” Coyne, 183 F.3d at 493 (citing Alexander v. Elec. Data Sys. Co., 13 F.3d 940, 949 (6th Cir. 1994)). If there is a colorable basis for predicting that a plaintiff may recover against a non-diverse defendant, however, then the Court must remand the action to state court. Id. The sole inquiry is the viability of the plaintiff’s claim. Estate of Owens v. E.I. Dupont de Nemours & Co., No. 12-111-DLB, 2013 U.S. Dist. LEXIS 189836, at *10 (E.D. Ky. June 17, 2013) (referencing Casias, 695 F.3d at 432-33).

         “In evaluating claims of fraudulent joinder, the Court must initially evaluate all the factual allegations in the [plaintiff’s] state court pleadings in the light most favorable to the [p]laintiff[].” Fulton Cty v. Underwriters Safety & Claims, Inc., No. 5:18-cv-138-TBR, 2019 U.S. Dist. LEXIS 729, at *7 (W.D. Ky. Jan. 3, 2019) (citing Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997); Poulus v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992); Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983)). “The standard to establish fraudulent joinder is a high one. It is even higher than the standard required by a motion to dismiss.” Id. (citing Cordle v. Merck & Co., Inc., 405 F.Supp.2d 800, 803 (E.D. Ky. 2005)). “It is so high[] that the removing party must demonstrate that there is no glimmer of hope that the plaintiff could prevail against the non-diverse defendants in state court.” Id. (citation and internal quotations omitted).

         Under the doctrine of fraudulent joinder, the inquiry is whether Gipe had at least a colorable cause of action against Greenhaven in the Kentucky state courts. See Jerome-Duncan, 176 F.3d at 907 (citing Alexander, 13 F.3d at 949). Therefore, the Court must look to Kentucky law to determine whether Gipe has a colorable claim against Greenhaven in asserting that a landlord voluntarily assumes a duty to provide a reasonable measure of protection to ...

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