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Wanda Dapron; Rory Kelly v. Joseph M Verska

March 11, 2013

WANDA DAPRON; RORY KELLY; JASON KELLY; SHERRY L. KELLY; SHERE DILLON; AND ANGIE DAPRON, PLAINTIFFS,
v.
JOSEPH M VERSKA, M.D.; SPINE INSTITUTE OF IDAHO, P.A., AND IDAHO CORPORATION; JOHN M. LIVINGSTON, M.D. AND TREASURE VALLEY HOSPITAL LIMITED PARTNERSHIP, DBA TREASURE VALLEY HOSPITAL; AND THEKEN SPINE LLC, AN OHIO LIMITED LIABILITY COMPANY, DEFENDANTS.



The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge

ORDER ADOPTING REPORT AND RECOMMENDATION

The Chief United States Magistrate Judge Candy W. Dale issued a Report and Recommendation in this matter. (Dkt. 38.) Pursuant to 28 U.S.C. § 636(b)(1), the parties had fourteen days in which to file written objections to the Report and Recommendation. Objections were filed by Defendant Theken Spine LLC ("Theken"). Responses to the objections were filed by Plaintiffs and Defendant Treasure Valley Hospital Limited Partnership. The matter is now ripe for the Court's consideration.

DISCUSSION

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge. Where the parties object to a report and recommendation, this Court shall make a de novo determination of those portions of the report which objection is made. Id. Where, however, no objections are filed the district court need not conduct a de novo review. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements of 28 U.S.C. § 636(b)(1)(C):

The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. As the Peretz Court instructed, "to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties." Peretz, 501 U.S. at 939 (internal citation omitted). Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251 ("Absent an objection or request for review by the defendant, the district court was not required to engage in any more formal review of the plea proceeding."); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo review not required for Article III purposes unless requested by the parties) . . . .

See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to the extent that no objections are made, arguments to the contrary are waived. See Fed. R. Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days of service of the Report and Recommendation). "When no timely objection is filed, the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)). In this case, the objections were filed so the Court is required to conduct a de novo determination of the Report and Recommendation.

FACTUAL BACKGROUND

The Court adopts the factual background set forth by Judge Dale on pages 1-3:

This is a medical malpractice and products liability case arising from the death of Gerald DaPron, who died on the operating table after a spine surgeon attempted to implant a device manufactured and sold by Defendant Theken Spine LLC. Following Mr. DaPron's death, his surviving children and stepchildren ("Plaintiffs") filed an action in Idaho state court against the two operating physicians (Joseph Verska M.D. and John Livingston M.D.), the hospital (Treasure Valley Hospital), and the Spine Institute of Idaho. The Complaint was filed in May of 2011. Plaintiffs thereafter filed two amended complaints in state court. The first amended complaint added Integra Lifesciences as a defendant -- the company Plaintiffs believed manufactured the device implanted in Mr. DaPron's spine. When Plaintiffs were made aware that Integra Lifesciences was merely a holding company, Plaintiffs filed a second amended complaint on April 18, 2012, naming Theken Spine LLC ("Theken") as a defendant -- the actual manufacturer of the device.

On May 17, 2012, Theken removed the case to federal court without obtaining the consent of any of the other defendants.

Before the Court is Defendant Treasure Valley Hospital's Motion to Remand. (Dkt. 8.) Treasure Valley Hospital (the "Hospital") contends that Theken's removal to federal court was procedurally defective. Specifically, the Hospital asserts that Theken did not obtain the consent of the other defendants in the case before seeking removal and that the failure to do so requires remand. Defendants Joseph Verska and the Spine Institute of Idaho, along with Plaintiffs, have joined the Hospital's motion to remand. (Dkt. 9 and 12.)

It is undisputed that prior to January 6, 2012, the removal statute, 28 U.S.C. § 1446, required the consent of all defendants before a case could be removed to federal court. It is also undisputed that, on December 7, 2011, the President of the United States signed into law the Federal Courts Jurisdiction and Venue Clarification Act, which amended the removal statute, and no longer requires the consent of all defendants prior to removal. Theken contends that, although Plaintiffs' original state complaint was filed before the amendments to the removal statute took effect, the fact that Plaintiffs amended their complaint adding Theken after the amendments makes the amendments applicable in this case.

TIMELINESS OF OBJECTIONS

The first issue is the timeliness of the Theken's objections. The Court finds the objections were timely filed. The Report and Recommendation was filed on September 18, 2012 and the parties had fourteen (14) days to file objections. However, Fed. R. Civ. P. 6(d) adds three days to the filing deadline. Therefore, the objections filed on October 5, 2012 were timely filed even though the objections were ...


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