Rossillo v. Becton, Dickinson and Company

Background

Mary G. Rossillo and Andrea Petri filed the underlying action in New York State Supreme Court on January 19, 2021. The complaint asserted claims involving the surgical implantation of a filter into Rossillo’s inferior vena cava. The claims included strict products liability, negligence, breach of express and implied warranty, consumer fraud and unfair and deceptive trade practices, medical malpractice, lack of informed consent, and hospital and clinical negligence. The plaintiffs also sought loss-of-consortium and punitive damages.

The defendants included Becton, Dickinson & Co.; C.R. Bard, Inc.; Bard Peripheral Vascular, Inc.; Mark Brennan, M.D.; Adam Cloud, M.D.; Alon Yarkoni, M.D.; and United Health Services, Inc. The complaint alleged that the plaintiffs were New York City residents; that United Health Services was organized under New York law; and that the three physicians practiced medicine in New York. It alleged that Becton, Dickinson & Co. and C.R. Bard were citizens of New Jersey and that Bard Peripheral Vascular was a citizen of Arizona.

Removal and Motion to Remand

On January 29, 2021, Becton, Dickinson & Co. and C.R. Bard removed the case to federal court based on diversity jurisdiction under 28 U.S.C. §§ 1332, 1441(a), and 1446(b). Diversity jurisdiction generally requires more than $75,000 in controversy and complete diversity, meaning that no plaintiff shares a state of citizenship with any defendant. The removing defendants asserted that the other defendants had not yet been properly joined or served and that the properly joined and served parties were diverse.

The plaintiffs moved to remand on February 8, 2021. They argued that complete diversity was absent because the plaintiffs, United Health Services, and the three physicians were New York citizens. They also invoked the forum-defendant rule, which can restrict removal when a properly joined and served defendant is a citizen of the state where the action was filed.

Court’s Analysis

The court held that the removing defendants had the burden to establish the basis for federal jurisdiction. It concluded that complete diversity was lacking because both plaintiffs were New York citizens and four defendants—the three physicians and United Health Services—were also New York citizens.

The court rejected the argument that the citizenship of an unserved defendant could be ignored when determining whether complete diversity existed. It distinguished the removal-consent requirement in 28 U.S.C. § 1446(b)(2)(A), which concerns which defendants must join or consent to removal, from the jurisdictional requirements of 28 U.S.C. §§ 1332 and 1441(a). For jurisdiction, the court stated, all defendants joined in the complaint must be diverse from all plaintiffs.

The court also explained that the Second Circuit’s decision in Gibbons v. Bristol-Myers Squibb Co. did not change the result. According to the court, Gibbons addressed the forum-defendant rule in a case where there was an independent basis for federal jurisdiction. It did not expand the statutory bases for federal jurisdiction or eliminate the requirement of complete diversity.

Because the court resolved the case on the absence of complete diversity, it did not reach the parties’ alternative arguments about whether the home-state defendant had been properly served before removal.

Disposition

The court GRANTED the motion to remand and directed the Clerk of Court to close the motion at Docket No. 5. The opinion did not decide the merits of the plaintiffs’ claims.