                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

    VICKY SMITH,
         Plaintiff
         v.                                                Civil Action No. 15-1226 (CKK)
    FREDERICK B. HENDRICKS, M.D., et al.,
         Defendants

                                  MEMORANDUM OPINION
                                     (October 22, 2015)
         Plaintiff Vicky Smith brought this action in the District of Columbia Superior Court

against Defendants Dr. Frederick Hendricks, Medical Faculty Associates, Inc., 1 and Boston

Scientific in relation to injuries that she allegedly suffered after she was implanted with the

“Advantage Transvaginal Mid-Urethral sling system.” Compl. ¶ 27. Defendant Boston Scientific

subsequently removed the case to this Court. Plaintiff brings medical malpractice claims against

MFA and against Dr. Hendricks (collectively, the “Healthcare Provider Defendants”) and product

liability claims against Boston Scientific. Presently before this Court are the Healthcare Provider

Defendants’ [8] Motion to Dismiss; the Healthcare Provider Defendants’ [11] Motion to Sever

Claims Against Them and Remand Said Claims to D.C. Superior Court; Plaintiff’s [16] Motion

to Remand the Case Back to the Superior Court of the District of Columbia; and Boston

Scientific’s [12] Motion to Stay All Proceedings Pending Transfer to MDL No. 2326. In essence,

Plaintiff seeks to have the entire case remanded to the Superior Court; by contrast, all of the

defendants argue that the claims against the Healthcare Provider Defendants should be severed

and remanded to the Superior Court (insofar as this Court does not dismiss them) while the


1
 Although Plaintiff refers to MFA as “Medical Faculty Associate, Inc.,” (in the singular) in her
Complaint, Defendant MFA refers to itself as “Medical Faculty Associates, Inc.,” (in the plural)
and that is consistent with the caption of this case. Accordingly, the Court refers to this defendant
as “Medical Faculty Associates, Inc.”

                                                  1
claims against Boston Scientific remain in federal district court. Meanwhile, Boston Scientific

has requested that the Panel on Multi-District Litigation transfer this case to the Southern District

of West Virginia as part of the multi-district litigation pending there, under the caption In re

Boston Scientific Corp. Pelvic Repair System Products Liability Litigation (MDL No. 2326), and

has moved to stay the proceedings in this Court pending transfer to the Southern District of West

Virginia.

         The key threshold question is whether the Court has jurisdiction over this action in the

first instance. In particular, the question is whether the citizenship of the Healthcare Provider

Defendants can be disregarded for the diversity analysis in light of Defendants’ arguments that

they were either fraudulently or improperly joined. The Court’s resolution of the other issues in

the pending motions follows from its analysis of the jurisdictional question. The Court concludes

that, although none of the Defendants were fraudulently joined, the claims against the Healthcare

Provider Defendants were not properly joined to the claims against Boston Scientific. The Court

concludes that it is proper to sever the claims against the Healthcare Provider Defendants and

sever those Defendants, pursuant to Rule 21, preserving jurisdiction over the claims against

Boston Scientific. Because the Court does not have jurisdiction over the claims against the

Healthcare Provider Defendants, the Court holds in abeyance those defendants’ motion to

dismiss and remands that motion and the associated claims to the Superior Court. Therefore,

upon consideration of the pleadings, 2 the relevant legal authorities, and the record for purposes


2
    The Court’s consideration has focused on the following documents:
      • Defendant Boston Scientific’s Notice of Removal of Civil Action (“Notice of Removal”),
         ECF No. 1; id., Ex. 1 (Plaintiff’s Complaint) (“Compl.”), ECF No. 1-1;
      • Defs.’ Dr. Hendricks and MFA’s Mot. to Dismiss (“Mot. to Dismiss”), ECF No. 8; Pl.’s
         Opp’n to Mot. to Dismiss, ECF No. 23; Healthcare Provider Defs.’ Reply to Mot. to
         Dismiss, ECF No. 20;


                                                  2
of this motion, the Court HOLDS IN ABEYANCE and REMANDS the Healthcare Provider

Defendants’ [8] Motion to Dismiss for the District of Columbia Superior Court to decide that

motion; GRANTS the Health Care Provider Defendants’ [11] Motion to Sever Claims Against

Them and Remand Said Claims to D.C. Superior Court; and DENIES Plaintiff’s [16] Motion to

Remand the Case Back to the Superior Court of the District of Columbia. The Court SEVERS

the claims against the Healthcare Provider Defendants, SEVERS those defendants as parties, and

REMANDS those claims back to the Superior Court. Having done so, the Court GRANTS

Boston Scientific’s [12] Motion to Stay All Proceedings Pending Transfer to MDL No. 2326 and

STAYS this action until further order of the Court.

                                       I. BACKGROUND

       For the purposes of the motions before the Court, the Court accepts as true the well-

pleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the

plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp.

v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court limits its

presentation of the background to the facts relevant to the issues discussed below.




   •    Defs.’ Dr. Hendrick’s and MFA’s Defendants’ Motion to Sever Claims Against Them and
        Remand Said Claims to D.C. Superior Court (“Mot. to Sever”), ECF No. 11; Pl.’s Opp’n
        to Mot. to Sever, ECF No. 17; and Healthcare Provider Defs.’ Reply to Mot. to Sever,
        ECF No. 21;
    • Plaintiff’s Motion to Remand the Case Back to the Superior Court of the District of
        Columbia (“Mot. to Remand”), ECF No. 16; Def. Boston Scientific’s Mem. of Points &
        Auth. in Opp’n to Mot. to Remand (“Boston Scientific’s Opp’n to Mot. to Remand”),
        ECF No. 22;
    • and Boston Scientific’s Motion to Stay All Proceedings Pending Transfer to MDL No.
        2326 (“Mot. to Stay”), ECF No. 12.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).

                                                 3
       Boston Scientific produces, designs, researches, distributes, sells, and promotes the

Advantage Transvaginal Mid-Urethral Sling System (“Advantage”), which consists of implanted

surgical mesh devices, as a treatment for pelvic organ prolapse and stress urinary incontinence.

Compl. ¶ 14. On October 20, 2008, the U.S. Food and Drug Administration (“FDA”) issued a

Public Health Notification to health care practitioners regarding adverse events relating to mesh

products that had been reported to the FDA. Id. ¶ 61. On July 13, 2011, the FDA updated its

Public Health Notification regarding “serious complications associated with surgical mesh for

transvaginal mesh.” Id. ¶ 62. Although the FDA did not address specific manufacturers or brand

names in its Public Health Notification, the FDA Manufacturers and User Facility Device

Experience database includes hundreds of injury reports arising from Advantage implants. Id.

¶ 64. Boston Scientific continued to promote Advantage and continues to claim that its reformed

model Advantage Fit System provides safe and effective alternatives to other treatments. Id. ¶ 71.

Boston Advantage has not included warnings or adverse event disclosures on its web page or

brochures for the Advantage Fit System. Id. ¶ 72. Plaintiff further alleges that Boston Scientific

knew or should have known that Advantage was defective, id. ¶ 65, and that Boston Scientific

failed to disclose complications and adverse events arising from the use of Advantage, id. ¶ 70.

        Meanwhile, on April 9, 2012, Plaintiff was referred to Medical Faculty Associates with

complaints of recurrent urinary tract infections and stress urinary incontinence. Id. ¶ 18. After

several initial tests and consultation with Dr. Hendricks, id. ¶¶ 19-21, Dr. Hendricks performed

surgery on Plaintiff on June 21, 2012, including a cystoscopy and implanting the Advantage sling

system, id. ¶ 27. While Dr. Hendricks recorded in Plaintiff’s medical records that he had a

thorough discussion with Plaintiff prior to the operation, Plaintiff alleges that she did not receive

an explanation and that they did not have any discussion. Id. ¶¶ 22-23. Plaintiff maintains that



                                                  4
she did not receive any literature other than a “simple consent form,” and that she never received

any information regarding complications with the use of the mesh device. Id. ¶¶ 23, 25. Plaintiff

began experiencing full scale abdominal pain on June 23, 2012, id. ¶ 28, and additional

complications and adverse events followed, including continuous post-menopausal bleeding and

sever lower back pain, id. ¶ 33. After receiving subsequent treatment and surgery at Providence

Hospital in 2013, id. ¶¶ 33-39, Plaintiff was seen again by Dr. Hendricks during April and May

2014, id. ¶¶ 40-44. Subsequently, Plaintiff continued to suffer adverse health effects and was

treated by other medical practitioners, including surgery that was conducted by those

practitioners. See id. ¶¶ 45-55.

       Plaintiff filed the Complaint in the District of Columbia Superior Court on June 22,

2015—which Boston Scientific subsequently removed to this Court—bringing claims in

connection with medical complications that allegedly resulted from medical procedures that

Defendant Dr. Frederick Hendricks performed on Plaintiff, including implanting the Boston

Scientific Advantage Transvaginal Mid-Urethral sling system. Plaintiff brings claims for medical

negligence (count I) and lack of informed consent (count II) against Dr. Hendricks and against

Medical Faculty Associates, the medical practice of which Dr. Hendricks is an employee or

agent. Id. ¶¶ 76-77. Plaintiff brings claims against Boston Scientific for negligent manufacture of

a defective product (count III), breach of duty to warn (count IV), negligent product design

(count V), breach of implied warranty of merchantability (count VI), breach of implied warranty

of fitness for a particular purpose (count VII), breach of express warranty (count VIII),

fraudulent misrepresentation (count IX), and fraud by concealment (count XI). In addition,

Plaintiff also brings a claims for violation of the D.C. consumer protection statutes against both

Dr. Hendricks and Boston Scientific (count X). In addition to the damages that Plaintiff seeks



                                                 5
with respect to the individual claims, Plaintiff seeks punitive damages from all defendants (count

XII). Defendant Boston Scientific filed the [1] Notice of Removal on July 29, 2015, and the

motions that are now pending before the Court were subsequently filed and briefed.

                                    II. LEGAL STANDARD

       “Federal courts are courts of limited jurisdiction” and can adjudicate only those cases

entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co.

of Am., 511 U.S. 375, 377 (1994). A defendant has the right to remove to federal court an action

brought in state court where the federal court has original subject matter jurisdiction, including

when it has jurisdiction on the basis of diversity of citizenship. 28 U.S.C. § 1441(a). Diversity

jurisdiction exists when the action involves citizens of different states, and the amount in

controversy exceeds $75,000.00 per plaintiff, exclusive of interest and costs. 28 U.S.C.

§ 1332(a). “When a plaintiff sues more than one defendant in a diversity action, the plaintiff

must meet the requirements of the diversity statute for each defendant or face dismissal.”

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989) (citing Strawbridge v. Curtiss,

7 U.S. 267, 3 Cranch 267, 267 (1806)); see also In re Lorazepam & Clorazepate Antitrust Litig.,

631 F.3d 537, 542 (D.C. Cir. 2011) (describing origin of complete diversity requirement). Courts

must strictly construe removal statutes, resolving any ambiguities regarding the existence of

removal jurisdiction in favor of remand. See Williams v. Howard Univ., 984 F. Supp. 27, 29

(D.D.C. 1997) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09 (1941)).

                                        III. DISCUSSION

       The Court first considers whether there is diversity jurisdiction over this action under 28

U.S.C. § 1332(a). The Court next considers whether Defendant Boston Scientific, who removed

the action to this Court under the general removal statute, 28 U.S.C. § 1441(a), properly


                                                 6
complied with the requirements of the removal statute, specifically with respect to the forum

defendant rule and with respect to the requirement that properly joined defendants join in or

consent to the removal. See 28 U.S.C. § 1441(b)(2) (forum defendant rule); id. § 1446(b)(2)(A)

(consent requirement). The Court lastly considers the Healthcare Provider Defendants motion to

dismiss and Boston Scientific’s request to stay this action.


A. Diversity Jurisdiction
       Plaintiff argues that this Court does not have subject matter jurisdiction over this action

because there is not complete diversity among the parties. Defendant Boston Scientific argues

that there is subject matter jurisdiction because the citizenship of the Healthcare Provider

Defendants should be disregarded because those parties were misjoined (that is, improperly

joined). The Healthcare Provider Defendants argue that there is no subject matter jurisdiction

over the claims against them and that the claims against them should be severed and remanded to

the D.C. Superior Court because they were improperly joined to the claims against Boston

Scientific. All of the defendants argue that, even if the Court determines that joinder is proper,

the Court should exercise its discretion under Rule 21 to sever the claims against the Healthcare

Provider Defendants, remand those claims to the D.C. Superior Court, and exercise jurisdiction

over the claims against Boston Scientific.

        “ ‘The usual rule is that removability is determined from the record before the court at

the time the notice of removal ... is filed in federal court.’ ” Henok v. JPMorgan Chase Bank,

N.A., No. CV 12-0292 (PLF), 2015 WL 2121788, at *3 (D.D.C. May 6, 2015) (quoting 14B

Charles Alan Wright et al., Fed. Prac. & Proc. Juris. § 3723, at 690 (4th ed. 2009)). “In addition,

‘[a] large minority of courts require complete diversity not only when removal is sought, but also

when the original action is filed in the state court.’ ” Id. (quoting 13E Charles Alan Wright,


                                                  7
Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc. Juris. § 3608, at 357-58 (3d ed.

2009)). The question in this case is whether an exception to that usual rule is applicable. Before

addressing the parties’ legal arguments, the Court notes that there are no factual disputes

underlying the question of diversity jurisdiction. 3 There is no question that, if all of the

defendants are considered for the diversity analysis—whether based on their citizenship at time

the complaint was filed in D.C. Superior Court, the time of the notice of removal, or at present—

the parties are not diverse: MFA and Dr. Hendricks are citizens of Washington, D.C., as is

Plaintiff. Compl. ¶¶ 3-6. Boston Scientific is the only party alleged not to be a citizen of

Washington, D.C.; it is a Delaware corporation with is principal place of business in

Massachusetts and is, therefore, a citizen of those two states. Notice of Removal ¶ 6. Similarly, it

is clear that, if the citizenship of the Healthcare Provider Defendants is disregarded—as

Defendants advocate—there would be diversity: Plaintiff is a citizen of Washington, D.C., and

Boston Scientific is not. Therefore, the key jurisdictional question is whether the citizenship of

MFA and Hendricks should be disregarded for the purposes of determining the diversity of the

parties.

           Altogether, Defendants suggest three possible bases for disregarding the citizenship of

the Healthcare Provider Defendants in determining whether there is complete diversity among

the parties: that the Healthcare Provider Defendants were fraudulently joined to this action; that

the claims against those defendants were misjoined (or improperly joined) to the claims against

Boston Scientific and must be severed pursuant to Rule 21; and that, in the alternative, the Court

should exercise its discretion to sever the claims against the Healthcare Provider Defendants in




3
 With respect to the question of proper joinder, there are disputes regarding the nature of the
claims.

                                                   8
order to exercise diversity jurisdiction over the claims against Boston Scientific. The Court notes

at the outset that, despite some lack of precision in the language the parties use to discuss

misjoinder and fraudulent joinder, the Court concludes that fraudulent joinder and misjoinder are

distinct bases for disregarding the citizenship of a nondiverse defendant, with a separate analysis

required for each of those bases. See Kips Bay Endoscopy Ctr., PLLC v. Travelers Indem. Co.,

No. 14 CIV. 7153 ER, 2015 WL 4508739, at *5 (S.D.N.Y. July 24, 2015); In re Rezulin Products

Liab. Litig., 168 F. Supp. 2d 136, 142 (S.D.N.Y. 2001). The Court addresses, in turn, the

potential bases for disregarding the citizenship of the Healthcare Provider Defendants.


       1. Fraudulent Joinder
       “The fraudulent joinder doctrine allows the Court to ‘disregard, for jurisdictional

purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case,

dismiss the nondiverse defendants, and thereby retain jurisdiction.’ ” Walter E. Campbell Co. v.

Hartford Fin. Servs. Grp., Inc., 959 F. Supp. 2d 166, 170 (D.D.C. 2013) (quoting Mayes v.

Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)). While the D.C. Circuit Court of Appeals has not

addressed the scope or existence of the fraudulent joinder doctrine, other district judges within

this district have applied this doctrine. See, e.g., id.; Boyd v. Kilpatrick Townsend & Stockton,

LLP, 79 F. Supp. 3d 153, 157 (D.D.C. 2015); In re Tobacco/Governmental Health Care Costs

Litig., 100 F. Supp. 2d 31, 39 (D.D.C. 2000). “In assessing a claim of ‘fraudulent joinder,’ the

removing party bears the burden of proving that, either ‘(1) there is no possibility the plaintiff

can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently

pled jurisdictional facts to bring the ... defendant into state court.’ ” In re Tobacco/Governmental

Health Care Costs Litig., 100 F. Supp. 2d at 39 (quoting Crowe v. Coleman, 113 F.3d 1536, 1538

(11th Cir. 1997); see also Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)


                                                  9
(citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)) (same standard). The

Court concludes that neither of these prongs is satisfied in this case.

        The Court begins with the second prong: in this case, there is no suggestion that Plaintiff

has “fraudulently pled jurisdictional facts.” There is no dispute regarding the actual citizenship of

the parties, and the parties acknowledge that, if the citizenship of all parties is considered,

complete diversity is absent from this case. Next, the Court turns to the question of whether there

is “no possibility the plaintiff can establish a cause of action against the resident defendant”—in

other words, whether there is no possibility that Plaintiff’s claims against the Healthcare Provider

Defendants can succeed. Importantly, it is unclear whether the Defendants, in fact, press this

argument. Nowhere does Boston Scientific explicitly lay out this argument despite its references

to cases discussing fraudulent joinder. In the Healthcare Provider Defendants’ motion to dismiss,

they argue that the Court should dismiss all claims against them. While the Healthcare Provider

Defendants do not explicitly link those arguments to their argument that they were fraudulently

joined as defendants, the Court briefly considers this prong of the fraudulent joinder doctrine in

the interest of completeness and because of the interrelated nature of the arguments in the

motions pending before the Court.

        The Healthcare Provider Defendants argue, in their motion to dismiss, that this Court has

no subject matter jurisdiction over the claims against them because Plaintiff failed to comply

with the 90-day pre-suit notice requirement for medical malpractice claims under the D.C.

Code. 4 See D.C. Code § 16–2802(a) (“Any person who intends to file an action in the court



4
  While Plaintiff argues that non-compliance with the notice requirement strips this Court of
subject matter jurisdiction, it is far from clear that the notice requirement itself is jurisdictional
rather an element of a medical malpractice claim pursuant to D.C. law. Compare Lacek v.
Washington Hosp. Ctr. Corp., 978 A.2d 1194, 1196 (D.C. 2009) (affirming dismissal for lack of


                                                  10
alleging medical malpractice against a healthcare provider shall notify the intended defendant of

his or her action not less than 90 days prior to filing the action.”). The Healthcare Provider

Defendants acknowledge that trial courts are “authorized … to waive § 16–2802(a)’s notice

requirement whenever such a waiver is in the interests of justice.” Lewis v. Washington Hosp.

Ctr., 77 A.3d 378, 382 (D.C. 2013). With respect to this provision, the posture in which the

Court considers the Healthcare Provider Defendants’ argument for dismissal is important. Given

the discretion given to trial courts to waive the notice provision, the Court cannot conclude that

there is “no possibility the plaintiff can establish a cause of action against” those defendants. In

re Tobacco/Governmental Health Care Costs Litig., 100 F. Supp. 2d at 39. Therefore, the Court

has no need to consider the merits of the parties’ arguments regarding the appropriateness of such

a waiver; the discretion associated with such a waiver necessarily means that there is some

“possibility” of success on Plaintiff’s claims against the Healthcare Provider Defendants. While

the Healthcare Provider Defendants also argue, in their motion to dismiss, that the Complaint

fails to state a claim with respect to the D.C. Consumer Protection Procedures Act claim and the

punitive damages claim, the Court need not tarry long with respect to this argument. Even if

those arguments both succeeded, these arguments would not undermine Plaintiff’s other claims.

Even if those arguments succeeded, the Court still could not conclude that there was no

possibility of success on the claims against the Healthcare Provider Defendants. Accordingly, the

Court finds that the Healthcare Provider Defendants were not fraudulently joined, and the Court

cannot disregard their citizenship on this basis.




subject jurisdiction without discussion of jurisdictional nature of notice requirement) with Lewis
v. Washington Hosp. Ctr., 77 A.3d 378, 382 (D.C. 2013) (suggesting the possibility that notice
requirement could be waived by the parties).


                                                    11
        2. Misjoinder 5
        Under Federal Rule of Civil Procedure 20, multiple defendants may be joined in one

action if “(A) 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 (B) any question of law or fact common to all defendants will arise in the

action.” Fed. R. Civ. P. 20(a)(2). “Misjoinder of parties is not a ground for dismissing an action.”

Fed. R. Civ. P. 21. Instead, a “court may at any time, on just terms, add or drop a party.” Id. “The

court may also sever any claim against a party.” Id. “ ‘[I]t is well settled that Rule 21 invests

district courts with authority to allow a dispensable nondiverse party to be dropped at any time,

even after judgment has been rendered.” Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S.

567, 572-73 (2004) (quoting Newman-Green, 490 U.S. at 832). The Healthcare Provider

Defendants argue—and Boston Scientific concurs—that they (and the claims against them) were

improperly joined with the claims against Boston Scientific. Defendants argue that neither prong

of Rule 20(a) is satisfied: that the claims against the Healthcare Provider Defendants do not arise

out of the same “transaction, occurrence or series of transactions or occurrences” as the claims

against Boston Scientific and that there are not common questions of law or fact between the two

groups of claims. Plaintiff primarily responds to Defendants’ joinder arguments by arguing that

this Court has no jurisdiction over the case and, therefore, no occasion to consider the propriety

of the joinder of the parties and the claims. However, as explained above, the Court concludes



5
  Because the relevant D.C. Superior Court rules are identical to the relevant Federal Rules of
Civil Procedures, it is immaterial whether the Federal Rules or the Superior Court Rules are
applied to determine whether joinder is proper. See D.C. Sup. Ct. Rules of Civil Procedure,
Comment to Rule 20 (“Identical to Federal Rule of Civil Procedure 20 except for deletion of
reference to admiralty process in the 2nd sentence of section (a) thereof.”); id., Comment to Rule
21 (“Identical to Federal Rule of Civil Procedure 21.”). Therefore, the Court references the
Federal Rules of Civil Procedure, as the parties have done, for the sake of simplicity.

                                                   12
that it is proper—and necessary—to consider the joinder issues in order to determine whether the

Court can exercise jurisdiction over this case. Plaintiff also responds that both prongs of the Rule

20(a)(2) are satisfied with respect to the claims in the Complaint.

       The Court turns to the first prong of the standard under Rule 20(a)(2)—whether the relief

asserted against the defendants “with respect to or arising out of the same transaction,

occurrence, or series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2)(A). Plaintiff claims

that this prong is satisfied because Dr. Hendricks implanted the device produced by Boston

Scientific during the surgery he performed on Plaintiff. See Pl.’s Opp’n to Defs.’ Mot. to Sever at

5. Plaintiff further claims that “the presence of mesh device in the body of the Plaintiff is a direct

function of the manufacture and distribution of the device to Defendants Hendricks and MFA for

use in the surgery performed on Plaintiff.” Id. Defendants argue that the claims against the

Healthcare Provider Defendants arise out of different transactions or occurrences—specifically,

the care and treatment of Plaintiff for urological complaints—than the claims against Boston

Scientific—which arise out of Boston Scientific’s research, testing, and disclosure of information

relating to the Advantage system. The Court agrees with the Healthcare Provider Defendants. It

is immaterial that the claims are linked, in some sense, as Plaintiff claims: if Boston Scientific

had never manufactured the Advantage system, Dr. Hendricks could never have performed

surgery on Plaintiff that entailed implanting the Advantage system. However, the applicable test

for joinder requires more. The question is whether Plaintiff seeks relief from the several

defendants “arising out of the same transaction, occurrence, or series of transactions or

occurrences.” The Court concludes that the Complaint does not meet this standard. Count I and

II are brought against the Healthcare Provider Defendants on the basis of the events surrounding

their treatment of Plaintiff. Counts III through IX and Count XI are brought against Boston



                                                  13
Scientific on the basis of products liability, including claims regarding alleged defectiveness of

the Advantage system and claims regarding the failure of Boston Scientific to disclose adverse

information regarding the Advantage System. The only substantive claim 6 brought against one of

the Healthcare Defendants and against Boston Scientific is Count X, involving a claim for

violation of the D.C. consumer protection statutes against both Dr. Hendricks and Boston

Scientific, which alleges that neither defendants informed her fully or provided an alternative

that would allow her to make an informed decision about her medical treatment. Compl. ¶ 142.

The claims against Boston Scientific, which pertain to products liability, do not arise out of the

same transactions or occurrences as the claims against the Healthcare Provider Defendants,

which relate to medical malpractice by those defendants treating Plaintiff. The fact that Plaintiff

claims that both the Healthcare Provider Defendants and Boston Scientific should have provided

additional information to her regarding the Advantage system does not change this conclusion.

Plaintiff’s interactions—or lack thereof—with Boston Scientific and with the Healthcare

Provider Defendants are wholly distinct. The factual basis for the claims against Boston

Scientific pertains to the research, development, production, and marketing of the Advantage

system; the factual basis for the claims against the Healthcare Provider Defendants pertains to

Plaintiff’s treatment by and interaction with her healthcare providers. Accordingly, the Court

concludes that Complaint does not satisfy the requirements of the first prong of Rule 20(a)(2)

with respect to the claims against the Healthcare Provider Defendants.




6
  A punitive damages claim, Count XII, is brought against all defendants, but the allegations
under the claim only reference Boston Scientific. Specifically, although the heading for Count
XII states that it is brought “AGAINST All Defendants,” Plaintiff only “prays for judgment
against Boston Scientific for $6000000.00 (six million dollars) for ruthless and wanton behavior
to promote the mesh device to implant into Ms. Smith’s body.” Compl. ¶ 153. Plaintiff does not,
under Count XII, seek punitive damages from any of the other defendants.

                                                 14
        Indeed, this conclusion accords with that of several other district courts that have

considered the propriety of joinder in cases where medical malpractice claims were joined with

product liability claims. 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. P. 20(a)); Hughes v.

Sears, Roebuck & Co., No. CIV.A. 2:09-CV-93, 2009 WL 2877424, at *6 (N.D.W. Va. Sept. 3,

2009) (concluding that product liability claims were improperly joined to medical malpractice

claims); Sutton v. Davol, Inc., 251 F.R.D. 500, 505 (E.D. Cal. 2008) (same); In re Guidant Corp.

Implantable Defibrillators Products Liab. Litig., No. CIV 07-1487 DWF/AJB, 2007 WL

2572048, at *2 (D. Minn. Aug. 30, 2007) (medical malpractice claim improperly joined to

products liability claim because claims did not arise from same transaction or occurrence). But

see, e.g., Stephens v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., 807 F. Supp. 2d 375,

383 (D. Md. 2011) (concluding that medical malpractice claims arose out of same transaction or

occurrence as products liability claim).

        Because the Court concludes that the claims against Boston Scientific do not arise out of

the same transaction, occurrence, or series of transactions or occurrences as the claims against

the Healthcare Provide Defendants, the Court concludes that the defendants are improperly

joined in this case, and the Court need not consider Defendants’ additional argument that there




                                                   15
are no common questions of law or fact between the claims against Boston Scientific and the

claims against the Healthcare Provider Defendants.

        Under Rule 21, the Court may sever any party if “they are not indispensable and if there

would be no prejudice to the parties.” In re Lorazepam & Clorazepate Antitrust Litig., 631 F.3d

at 542; see also Fed. R. Civ. P. 21. Given that there is no basis for permissive joinder of the

claims against the Healthcare Provider Defendants, it is necessarily true that the Healthcare

Provider Defendant are not necessary (or “indispensable,” according to the former language of

the rules) parties who must be joined pursuant to Rule 19 in order for this action to proceed.

Indeed, there would be no basis for the Court to conclude that, without the Healthcare Provider

Defendants, “the court cannot accord complete relief among existing parties.” Fed. R. Civ. P.

19(a)(1)(A). Nor would the Court have any basis to conclude that the Healthcare Provider

Defendants “claim[] an interest relating to the subject of the action and is so situated that

disposing of the action in [their] absence may … (i) as a practical matter impair or impede [their]

ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of

incurring double, multiple, or otherwise inconsistent obligations because of the interest.” Fed. R.

Civ. P. 19(a)(1)(B). Finally, Plaintiff has not identified any prejudice to severing and remanding

the claims against the Healthcare Provider Defendants to the D.C. Superior Court while the

claims against Boston Scientific are litigated in federal court. Therefore, pursuant to Rule 21, the

Court severs the claims against the Healthcare Provider Defendants and remands those claims

and defendants to the D.C. Superior Court. See In re Lorazepam & Clorazepate Antitrust Litig.,

631 F.3d at 542.

        Under “the fiction that Rule 21 relates back to the date of the complaint [,] the court may

proceed as if the nondiverse parties were never part of the case.” Id. (citation omitted).



                                                   16
Accordingly, by disregarding the presence of the Healthcare Provider Defendants and their

citizenship, there is complete diversity between Plaintiff and Boston Scientific, and the Court has

subject matter jurisdiction over the remaining claims and parties in this case pursuant to 28

U.S.C. § 1332. Finally, because the Court concludes that it has subject matter jurisdiction over

this case as a result of the conclusion that the Healthcare Provider Defendants were misjoined,

the Court need not determine whether it would exercise its discretion under Rule 21 to sever the

claims, absent misjoinder, merely to preserve jurisdiction against Boston Scientific. 7 See In re

Lorazepam & Clorazepate Antitrust Litig., 631 F.3d at 542 (court may drop parties to preserve

jurisdiction and proceed with case if they are not indispensable).


B. Compliance with the Removal Statutes
       While the Court has concluded that it has diversity jurisdiction over the claims against

Boston Scientific under section 1332 by virtue of the severance and remand of the claims against

the Healthcare Provider Defendants pursuant to Federal Rule of Civil Procedure 21, the Court

now considers Plaintiff’s arguments that Boston Scientific did not properly comply with the

substantive and procedural requirements of the removal statute. However, in light of the Court’s

conclusion above that the claims against the Healthcare Provider Defendants were improperly

joined to the claims against Boston Scientific, little additional analysis is needed for the Court to




7
  The Court notes that other district courts have concluded that there is a basis for severing a
party pursuant to Rule 21 in similar circumstances as presented here, where severing such a party
would enable a federal court to exercise jurisdiction over the remaining claims and parties along
with other actions transferred to a single district through the multi-district litigation process. See,
e.g., Sullivan v. Calvert Mem’l Hosp., No. CIV. PJM 15-1188, 2015 WL 4614467, at *5 (D. Md.
July 30, 2015) (severing claims against healthcare provider defendants under Rule 21 and
exercising jurisdiction over against product manufacturer).


                                                  17
determine that Boston Scientific has, in fact, complied with the applicable requirements of the

removal statute.

       First, Plaintiff argues that removal was improper under 28 U.S.C. § 1441 because the

Healthcare Provider Defendants are citizens of the District of Columbia and because the forum

defendant rule bars removal in these circumstances. 8 Pursuant to section 1441, “[a] civil action

otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title [the

statutory basis for diversity jurisdiction] 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 such action is

brought.” 28 U.S.C § 1441(b)(2) (emphasis added). In her motion to remand, Plaintiff argues that

the notice of removal is improper in light of this rule because the Healthcare Provider

Defendants are “citizen[s] of the State in which such action is brought”—the District of

Columbia. However, Plaintiff ignores a key element of the statutory provision—that it applies

only to “parties in interest properly joined and served as defendants.” Id. (emphasis added).

Because the Healthcare Provider Defendants are not properly joined as defendants, as the Court

determined above, the forum defendant rule is inapplicable and does not render the Notice of

Removal improper.

       Second, Plaintiff argues that removal was procedurally improper because the Healthcare

Provider Defendants did not consent to the removal. Pursuant to section 1446, “[w]hen a civil

action is removed solely under section 1441(a), all defendants who have been properly joined

and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A)




8
  The Court notes that the weight of authority is that the forum defendant rule is a
nonjurisdictional rule. See Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 940 (9th Cir. 2006)
(agreeing with eight out of nine other Circuit Courts to have considered this issue and concluding
that the forum defendant rule is nonjurisdictional).

                                                 18
(emphasis added). Once again Plaintiff ignores a key element of this statutory provision—that it

applies only to “who have been properly joined and served.” Id. (emphasis added). Because the

Healthcare Provider Defendants are not properly joined as defendants, as the Court concluded

above, the Court finds that the consent requirement is inapplicable and does not render the

Notice of Removal improper. 9

       In sum, in light of the Court’s conclusion that the Healthcare Provider Defendants were

not properly joined to this action, the Notice of Removal was substantively and procedural

proper. Having rejected Plaintiff’s arguments that the claims against all of the defendants in this

case must be remanded to the D.C. Superior Court, this Court concludes that it has jurisdiction

over the claims against Boston Scientific.




9
  This interpretation of the consent requirement accords with the conclusions of other courts that
have addressed the scope of the requirement. See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815
(5th Cir. 1993) (“In cases involving alleged improper or fraudulent joinder of parties, however,
application of this requirement to improperly or fraudulently joined parties would be
nonsensical, as removal in those cases is based on the contention that no other proper defendant
exists.”); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988) (“Ordinarily,
under 28 U.S.C. § 1446(a), all defendants in a state action must join in the petition for removal,
except for nominal, unknown or fraudulently joined parties. … This general rule applies,
however, only to defendants properly joined and served in the action.”) (citations omitted). Some
courts that addressed the scope of the consent requirement have described the exception in terms
of fraudulently joined parties and have not discussed its applicability to improperly joined
parties. See, e.g., Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 877 (1st Cir. 1983) (“A
party fraudulently joined to defeat removal need not join in a removal petition, and is disregarded
in determining diversity of citizenship.”); Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 (3d Cir.
1995). However, the parties have identified no cases—and the Court is aware of no cases—
where courts have explicitly determined that there is no exception to the consent requirement for
improper joinder. In accordance with the authority from jurisdictions establishing an exception
for improperly joined parties, the Court concludes that the explicit language of section 1446 does
not require consent from improperly joined parties.


                                                 19
C. Remaining Issues
       The Healthcare Provider Defendants argue that the Court should consider their motion to

dismiss prior to their motion to sever and remand. The Court disagrees. The Healthcare Provider

Defendants’ proposed sequencing would not be proper because the Court concluded above that it

is necessary to resolve the motion to sever and remand in order to determine whether the Court

has jurisdiction over this case in the first stance. Therefore, the Court only considered the

Healthcare Providers Defendants’ arguments in favor of dismissal in the context of the parties’

fraudulent joinder arguments. Having concluded that there is no fraudulent joinder in this case

and having concluded that it was necessary to sever the claims against the Healthcare Provider

Defendants and remand them to the D.C. Superior Court in order to exercise jurisdiction over

any claims in this case, it would be advisable to hold in abeyance and remand the Healthcare

Provider Defendants’ motion to dismiss as to the merits of this case. 10 Accordingly, the Court

holds in abeyance and remands the Healthcare Provider Defendants’ motion to dismiss.

       Finally, the Court addresses Boston Scientific’s [12] Motion to Stay all Proceedings

Pending Transfer to MDL No. 2326, which seeks a stay in this action pending a decision by the

Judicial Panel on Multi-District Litigation (“JPML” or “Panel”) regarding the request to transfer

this action to the Southern District of West Virginia as part of MDL No. 2326, captioned In re

Boston Scientific Corp. Pelvic Repair System Products Liability Litigation. On August 4, 2015,

the Panel issued a Conditional Transfer Order 149 (“CTO-149”), which would transfer this

action to the Southern District of West Virginia. However, the Conditional Transfer Order with



10
   The Court notes, as it explained above, that although the Healthcare Provider Defendants
frame their only argument applicable to all claims against them as a jurisdictional argument, the
Court is not persuaded that those arguments are properly considered jurisdictional rather than
merits-related.


                                                 20
respect to this action has remained stayed since it was issued because the Healthcare Provider

Defendants filed a Notice of Opposition and moved to vacate the Conditional Transfer Order. 11

Boston Scientific has opposed the Healthcare Provider Defendants’ motion to vacate. As of this

date, the Motion to Vacate remains pending before the Panel, and the Panel has scheduled a

hearing on that motion for December 3, 2015.

       After Boston Scientific filed the Motion to Stay, this Court issued an order with respect

the various motions that were pending in this case. The Court determined that it would not stay

the briefing of the several motions that had been filed—the motions that the Court resolves

today—but did not at that time resolve the Motion to Stay. As Boston Scientific has pointed out,

neither the Healthcare Provider Defendants nor Plaintiff has filed an opposition to the Motion to

Stay even though Plaintiff previously indicated her opposition and the Healthcare Provider

Defendants indicate that they opposed the Motion insofar as it would affect the Court’s

consideration of the motions they filed. See Boston Scientific’s Opp’n to Mot. to Remand at 3

n.1. Nonetheless, given the Healthcare Provider Defendants’ motion to vacate the Conditional

Transfer Order that remains pending before the Panel, and given the jurisdictional issues that are

presented in this case, the Court concluded that would not be in the interest of judicial efficiency

to stay these proceedings prior to the resolution of the other motions pending before the Court.

However, having resolved those motions as explained above—severing and remanding the

claims against the Healthcare Provider Defendants such that this Court can exercise jurisdiction

over the claims against Boston Scientific—the Court concludes that a stay would now be proper.




11
  Plaintiff initially filed a Notice of Opposition to the Conditional Transfer Order, but because
that Notice was filed one day late, it was withdrawn.

                                                 21
       Plaintiff does not dispute that there are thousands of cases pending against Boston

Scientific through MDL 2326 that present similar claims to Plaintiff’s claims. Having resolved

the jurisdictional issues in this case, the Court concludes that it would be best to postpone any

consideration of the claims against Boston Scientific—including allowing a period of discovery

to commence—until the Panel’s resolves the Motion to Vacate that is now pending. Not only are

the questions regarding discovery in this case likely to be integrally linked to those issues

considered by Judge Joseph R. Goodwin with respect to cases pending before him through MDL

No. 2326, but the Court expects that it is likely that the Panel will promptly resolve the questions

regarding the Conditional Transfer Order in light of this Court’s resolution of the issues in this

case. Specifically, given that the only Motion to Vacate pending before the Panel is the one filed

by the Healthcare Provider Defendants, once the claims against them are remanded they would

appear not to have any ground to object to a conditional transfer. Indeed, in their Motion to Sever

and Remand, the Healthcare Provider Defendants indicated that, after the resolution of the

motions pending before this Court, the “transfer of the claims against Boston Scientific to the

pending multi-district litigation, is the course of action most likely to ‘secure the just, speedy,

and inexpensive determination of every action and proceeding.’ ” Mot. to Sever at 10. The Court

expects that, after this resolution of the pending motions, that the claims against Boston

Scientific will be transferred, with any remaining objections—given that Plaintiff did not file a

timely objection to the Motion to Vacate before the Panel—to the Southern District of West

Virginia. Accordingly, the Court will stay this action pending the resolution of the issues

regarding the Conditional Transfer Order by the Panel on Multi-district Litigation.




                                                  22
                                      IV. CONCLUSION

       For the foregoing reasons, the Court HOLDS IN ABEYANCE and REMANDS the

Healthcare Provider Defendants’ [8] Motion to Dismiss to allow the Superior Court to decide

that motion; GRANTS the Health Care Provider Defendants’ [11] Motion to Sever Claims

Against Them and Remand Said Claims to D.C. Superior Court; and DENIES Plaintiff’s [16]

Motion to Remand the Case Back to the Superior Court of the District of Columbia. The Court

SEVERS the defendants and claims against the Healthcare Provider Defendants, and

REMANDS those defendants and claims back to the Superior Court. Having done so, the Court

GRANTS Boston Scientific’s [12] Motion to Stay All Proceedings Pending Transfer to MDL No.

2326 and STAYS this action until further order of the Court.

       An appropriate Order accompanies this Memorandum Opinion.

Dated: October 22, 2015
                                                       /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge




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