Do you recall last week when one of the smartest posters we have on this blog set out an impressive list of criteria to be used for selecting bloggable opinions: 1) the case must be useful or otherwise important for practitioners to understand;  (2) we would rather publicize good (pro-defense) results;  (3) powerful reasoning helps; (4) it is way more fun to report on a decision that is well written; and (5) when in doubt, we plump for opinions that can support a drawn-out, tendentious analogy to a film, TV show, or song currently rattling around our head.  That’s a great list, and what no doubt has made this blog so interesting for so long.

But it also made some of us – well, maybe just one of us – feel very guilty.  That’s because we have one more criterion.  Well, it’s not just an additional criterion.  It’s often number 1.  OK, to be frank, it sometimes serves as numbers 1 through 5.  It is this:  Is the court’s opinion short?  It’s almost never failed us.  It’s brilliant in its simplicity.  And so easy to apply.  Just open the opinion, and in milliseconds you’ve determined whether it’s bloggable.

So, with that thrilling glimpse into the mind of a legal blogger, we present today’s opinion, Burns v. Medtronic, Inc., 2013 U.S. Dist. LEXIS 150499 (C.D. Cal. Oct. 8, 2013), one of the most bloggable cases in the history of blogging.  Why?  It weighs in at just under two pages.  Yup, it’s a keeper.  Last week, when this opinion was circulated along with others for the consideration of the blogging team, one particular blogger almost separated his cyber shoulder raising his hand so quickly.   But, oh, this one was worth it.  For months, just thinking about it will bring a nostalgic smile.

But don’t worry.  It satisfies the other criteria. Really, it does.  At least 4 of them.

It’s an opinion from a federal court in California on removal and fraudulent joinder.  It isn’t important simply because the court denied plaintiffs’ remand motion.  But that was good.  It’s important because in reaching that decision the court required plaintiffs’ complaint to contain actual and relevant factual allegations about the non-diverse defendant, a doctor, in order to establish that there was no diversity jurisdiction.  And since plaintiffs’ complaint didn’t do that, the doctor was dismissed, there was diversity, the case was properly in federal court, and moments later plaintiffs’ case was dismissed as preempted.  Id. at *6.  See, not bad.

As you may know, we – more to the point, Yeary– have in the past discussed the pleading standard that a plaintiff must meet as to a non-diverse defendant in order to stave off removal.  The question has been whether it should be a federal TwIqbal-like standard or an often more lenient state standard.  We believe it should be federal.  Once removed, a case is in federal court and federal pleading standards should apply.  When the issue is whether the plaintiff is trying to avoid federal court, it makes perfect sense to apply the federal standard.

The court in Burns didn’t enunciate any of this.  It just did it.  In reviewing plaintiffs’ allegations that the non-diverse defendant doctor (1) was partly responsible for inventing Medtronic’s LT-Cage, used as part of an InFuse Bone Graft device, (2) developed technology included in the LT-Cage, and (3) held patents used in such cages, the court found that plaintiffs pleaded no facts that connected any of these allegations to plaintiffs’ surgeries.  Id. at *2-3.  Plaintiffs, for instance, alleged that their doctors used an off-label version of the InFuse Bone Graft device that didn’t include the LT-Cage, the component around which their allegations centered.  Id. at *3.  Plaintiffs also didn’t allege facts connecting the doctor’s patents to the devices used in plaintiffs’ surgeries.  They alleged, for instance, that the rhBMP-2 protein contained in the InFuse Bone Graft component of the device caused their uncontrolled bone growth.  But they then alleged that the doctor’s patents were used for the LT-Cage, not the component using that protein.  Id. at *3-4.  They also cited an article that discussed a settlement between Medtronic and the doctor.  But the article didn’t connect the doctor to the InFuse Bone Graft.  Once again, it connected him to the cage.  Id. at *4.

In short, Plaintiffs made a number of allegations that, on their surface, may have seemed to connect the doctor to Medtronic and the InFuse Bone Graft device.  But there was a factual gap, one big enough to drive removal through.  And a federal court requiring meaningful factual allegations to support inclusion of a non-diverse defendant was able to sniff out the fraudulent joinder.  It’s an opinion that you should have at the ready for your oppositions to remand.  See, we told you.  This selection criterion is infallible.

(By the way, it’s entirely possible that this post is longer than the court’s opinion, meaning, perhaps paradoxically, that the court’s opinion is much more bloggable than this post.)