Summary
In Nishi v. Ethicon, Case No. 00-02709, 2003 WL 917978 at *3-4 (N.D. Cal. Feb. 26, 2003), the court declined to remand the UCL claims because, although the action was removed to federal court, the UCL claims were added later in an amended complaint and thus had not been filed in state court in the first instance.
Summary of this case from People v. Northern Trust Corp.Opinion
No. C 00-2709 CRB
February 26, 2003
MEMORANDUM AND ORDER
This action arises out of the events surrounding Shunji Nishi's death in 1999. Plaintiffs are Mr. Nishi's spouse and children. They allege Mr. Nishi's death was caused by defective sutures used in a surgery performed four years prior to his death. Defendants removed this action to federal court on the basis of diversity jurisdiction. Plaintiffs subsequently filed a Third Amended Complaint which added claims based on California's Unfair Competition Statute, Business and Professions Code section 17200et seq.
Defendants now move to dismiss the Unfair Competition causes of action, arguing that plaintiffs lack standing to bring these claims. After carefully considering the papers filed by the parties, and having had the benefit of oral argument, defendants' motion is GRANTED.
BACKGROUND
Mr. Nishi underwent back surgery in November 1995 at Alta Bates Hospital. Plaintiffs allege that he received contaminated Vicryl® sutures which became infected, leading to multiple surgical procedures and protracted suffering, and his eventual death on May 27, 1999.
Certain Vicryl® sutures manufactured by defendant Ethicon were recalled in 1994. Alta Bates represents that it quarantined all the recalled sutures in 1994, a year prior to Mr. Nishi's surgery. Plaintiffs allege that defendants were negligent in performing the 1994 recall, by failing to notify Alta Bates that the recall was being extended and continuing to distribute recalled sutures after the recall. Plaintiffs further allege that the recall was not as broad as it should have been. Plaintiffs contend that Mr. Nishi received recalled sutures and an unrecalled "reworked" suture, which they allege was also contaminated. Plaintiffs claim that these allegedly contaminated sutures caused an infection leading to Mr. Nishi's eventual death. Plaintiffs argue that had the suture packaging been different, the allegedly contaminated Vicryl® sutures would not have been used in Mr. Nishi's surgery.
With respect to claims Ten through Thirteen, those that are the subject of the motion to dismiss, plaintiffs ask for: 1) restitution pursuant to California Business and Professions Code sections 17203 and 17535 to all hospitals within the State of California of the amounts spent purchasing Vicryl® sutures since 1992, and 2) an order enjoining defendant Ethicon from aseptically processing Vicryl® sutures now and in the future.
LEGAL STANDARD
Even though defendants are moving to dismiss the complaint, plaintiff bears the burden of proving that this Court has jurisdiction to decide his case. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) ("Federal courts are courts of limited jurisdiction. . . . It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.") (citations omitted). Moreover, "[f]or motions to dismiss under Rule 12(b)(1), unlike a motion under Rule 12(b)(6), the moving party may submit affidavits or any other evidence properly before the court. . . . It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." Association of American Medical Colleges v. U.S., 217 F.3d 770, 778 (9th Cir. 2000).
DISCUSSION
A. Plaintiffs Must Meet Federal Standing Requirements to Bring their Claims in this Court
Defendants first move to dismiss on the ground that plaintiffs lack standing to recover restitution and obtain an injunction on behalf of the general public.
Plaintiffs respond that California Unfair Competition law allows private attorney general suits and therefore plaintiffs have standing in federal court to assert their claims on behalf of the general public.
In Lee v. American National Insurance Co., Lee brought an action in federal court under California's Unfair Competition Law. 260 F.3d 997 (9th Cir. 2001). Lee claimed that California law allowed him to challenge an insurance company's allegedly unfair business practices as a private attorney general even though he suffered no individualized injury as a result of the company's challenged conduct. The Ninth Circuit agreed with the District Court that, "[even] though the California unfair business practices statutes requires no . . . actual injury to pursue a claim in state court. . . . Article III of the Constitution takes priority in — federal court over the California statute's more liberal standing rules." Id. at 999. "So a plaintiff whose cause of action is perfectly viable in state court under state law may nonetheless be foreclosed from litigating the same cause of action in federal court, if he cannot demonstrate the requisite injury." Id. at 1001-2.
Accordingly, plaintiffs' argument that they have standing in federal court on the basis of California's Unfair Competition Law, irrespective of meeting federal standing requirements, fails.
B. Plaintiffs have not Demonstrated the Required Components of Article III Standing
Having determined that plaintiffs must meet federal standing requirements to bring the Unfair Competition claims, the Court must now determine whether plaintiffs meet these requirements. Defendants argue that plaintiffs have not demonstrated any of the three required components to federal standing.
1. Standard Generally
"The `three separate but interrelated components' of Article III standing are: (1) a distinct and palpable injury to the plaintiff; (2) a fairly traceable causal connection between the injury and challenged conduct; (3) a substantial likelihood that the relief requested will prevent or redress the injury." MAI Systems Corp. v. Weisbrich, 856 F. Supp. 538, 540 (N.D. Cal. 1994). Even when the defendant has directly injured the plaintiff, redressability does not automatically follow. Redressability is an additional requirement. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, n. 7 (1998). The plaintiffs, as the party invoking federal jurisdiction, bear the burden of establishing these elements. Id. at 104. "Failure to establish any one deprives the federal courts of jurisdiction to hear the suit;" Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d 315, 319 (5th Cir. 2002), citingSteel, 523 U.S. 83.
2. Plaintiffs Cannot Show Redressability
Here, assuming, without deciding, that plaintiffs meet the first two requirements for standing, they do not meet the redressability requirement. In claims Ten through Thirteen plaintiffs ask for: 1) restitution to all hospitals within the State of California of the amounts spent purchasing Vicryl® since 1992, and 2) an order enjoining defendant Ethicon from aseptically processing Vicryl® sutures now and in the future.
a. Restitution is Inappropriate
Plaintiffs have not submitted evidence that Mr. Nishi had any out-of-pocket costs for his surgery. If the plaintiffs were to prove the Unfair Competition claims, any restitution would go to Mr. Nishi's insurance company and/or the hospitals that purchased the sutures. Because plaintiffs would not receive any restitution were they to prevail on the Unfair Competition claims, restitution would not address plaintiffs' alleged injury.
b. Injunctive Relief is Inappropriate
Plaintiffs cannot seek an injunction on behalf of Mr. Nishi because such a request is moot. "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974). Instead, plaintiffs seek an injunction on behalf of the public. Plaintiffs seek an order enjoining defendant Ethicon from aseptically processing Vicryl® sutures "as members of the public are likely to be deceived and the risk of infection to the public is unreasonable and too great."
Plaintiffs lack standing, however, to seek an injunction on behalf of the hospitals, insurers, or general public. See City of Los Angeles v. Lyons, 461 U.S. 95 (1983), criticized on other grounds by Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984). In Lyons, the Supreme Court concluded that "[absent] a sufficient likelihood that [Lyons] will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional." By analogy, here there is no possibility that harm to Mr. Nishi will be repeated, so plaintiffs are no more entitled to an injunction with respect to the labeling of sutures than any other citizen. See also Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (holding that the public interest in proper administration of the laws cannot be converted into an individual right by a statute that denominates it as such and that permits all citizens to sue.).
Plaintiffs do not allege a likelihood of a future violation affecting Mr. Nishi or themselves, and they do not have standing to request an injunction on behalf of the general public. Therefore, their prayer for injunctive relief fails.
C. Dismissal rather than Remand is Appropriate
Plaintiffs cite Lee. 260 F.3d 997, for the proposition that the Unfair Competition claims should be remanded to state court rather than dismissed. In Lee, the Ninth Circuit considered whether a whole case should be remanded when the court does not have jurisdiction over the state law claims. The Ninth Circuit held that "because the case [was] within the district court's original jurisdiction, it was properly removed under 28 U.S.C. § 1447(c), and [could] not be remanded in its entirety to state court." Id. at 1008. The Ninth Circuit expressly did not reach the question of "whether it would have been proper to remand only the claims [over which there was no federal jurisdiction] to state court." Id. Although Lee expresses in dicta that the Supreme Court has "left open the possibility that § 1447(c) might permit [partial remand]," neither the Ninth Circuit nor the Supreme Court have held that Section 1447 does allow partial remand where there is lack of subject matter jurisdiction over some claims. Id. This court declines to reach the question.
Plaintiffs have cited no case in which a court has chosen to remand a case in part rather than dismiss claims over which it has no jurisdiction. In any event, plaintiffs' Unfair Competition claims were never brought in state court, thus this is clearly not the case in which to grant such a partial remand even if partial remand might be permissible in some case. See Allied Signal Recovery Trust v. Allied Signal Inc., 298 F.3d 263, 270 (3d Cir. 2002) ("Remand means `send back.' It does not mean `send elsewhere.'").
CONCLUSION
As plaintiffs' requested relief will not redress Mr. Nishi's injury, plaintiffs' Unfair Competition claims fail the redressability component of Article III standing. Accordingly, the Tenth through Thirteenth Causes of Action of plaintiffs' Third Amended Complaint are hereby DISMISSED without prejudice for lack of standing.