Dyer v. C R Bard Incorporated

MIDDLE DISTRICT OF LOUISIANA JOHN H. DYER, JR. CIVIL ACTION NO. VERSUS 19-588-BAJ-EWD C. R. BARD INC., ET AL. NOTICE AND ORDER This is a civil action involving claims for damages asserted by John H. Dyer, Jr. (“Plaintiff”) based upon the injuries he allegedly sustained in connection with an inferior vena cava filter manufactured by Defendants C.R. Bard Incorporated (“C.R. Bard”) and Bard Peripheral Vascular, Inc. (“BPV”) (collectively, “Defendants”).1 On April 1, 2018, Plaintiff filed his “Amended Master Short Form Complaint for Damages,” (“Short Form Complaint”) in the MultiDistrict Litigation (“MDL”) pending in the U.S. District Court for the District of Arizona.2 The case was transferred to this Court on September 9, 2019.3 Proper information regarding the citizenship of all parties, and the amount in controversy, is necessary to establish the Court’s diversity jurisdiction under 28 U.S.C. § 1332 . The Short Form Complaint alleges that the Court’s basis of jurisdiction is diversity of citizenship and references and incorporates the “Master Complaint for Damages in MDL 2641” (“Master Complaint”), filed on the docket of the MDL.4 The Master Complaint reflects that Defendant C.R. Bard is a corporation organized under Delaware law with a principal place of business in New Jersey5 and Defendant BPV is a “wholly-owned corporation of Defendant C.R. Bard” with its principal place of business in Arizona and “is domiciled” in that district.6 Furthermore, the Master Complaint asserts that “the amount in controversy for each action exceeds seventy-give thousand dollars [] 1 R. Doc. 1. 2 No. MD-15-02641-PHX-DGC, R. Doc. 364. 3 R. Docs. 1, 4-5. 4 R. Doc. 1, introductory paragraph and p. 2, ¶ 9. [5] and the amount in controversy appears to be met. However, Plaintiff’s citizenship is unclear. The Short Form Complaint only alleges Plaintiff’s residence,8 and the Civil Cover Sheet states that Plaintiff is “Citizen of Another State,”9 neither of which is sufficient to establish citizenship. “For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient.”10 Furthermore, “[f]or adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.”11 Thus, to properly allege the citizenship of an individual, a party must identify the individual’s domicile. As Plaintiff’s citizenship is not clear, the Court sua sponte raises the issue of whether it may exercise diversity jurisdiction in this matter.12 IT IS HEREBY ORDERED that on or before September 25, 2019, Plaintiff James H. Dyer, Jr. shall file an Amended Complaint that contains all of Plaintiff’s numbered allegations as revised, supplemented, and/or amended, without reference to any other document in the record,13 and that adequately alleges the citizenship of Plaintiff James H. Dyer, Jr. The case will be allowed to proceed if jurisdiction is adequately established. Signed in Baton Rouge, Louisiana, September 11, 2019. S ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE 7 MDL, R. Doc. 364, p. 6, ¶ 20. 8 R. Doc. 1, ¶¶ 4-6. 9 R. Doc. 1-1, p. 1 at item III. 10 Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (citations omitted). 11 White v. I.N.S., 75 F.3d 213, 215 (5th Cir. 1996) (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 , 109 S.Ct. 1597, 1608 , 104 L.Ed.2d 29 (1989)). 12 See McDonal v. Abbott Laboratories, 408 F.3d 177 , 182 n. 5 (5th Cir. 2005) (“[A]ny federal court may raise subject matter jurisdiction sua sponte.”). 13 To the extent Plaintiff seeks to incorporate the allegations in Master Complaint for Damages in MDL 2641, the