powder additives emitted from the various latex containing products" such as latex gloves, foley catheter kits, blood pressure cuffs and soap dispensers. Plaintiffs state that this exposure caused injuries including but not limited to "asthma, rhinitis, respiratory problems, hives, contact dermatitis, throat soreness, facial swelling, drooling, hoarseness, extreme discomfort, depression and emotional distress." Plaintiffs allege damages for medical expenses and loss of earnings and earning capacity as a result of exposure to these products. Plaintiffs assert claims for relief under state law including negligence, strict liability, breach of warranty, both implied and express, fraudulent concealment, loss of consortium, and seek punitive damages.
Plaintiffs' complaints were initially filed in the Superior Court of New Jersey, Camden County, on September 19, 1995, and were removed to this court by the defendants on October 27, 1995. The defendants' notice of removal asserted that this court has federal question jurisdiction over the actions because the actions are completely preempted by the Medical Devices Amendments of 1976, which amended the Food, Drug and Cosmetic Act of 1938, 21 U.S.C. 360-360rr ("MDA").
In the instant motion, plaintiffs contend that the removal was improper for two reasons: 1) not all defendants signed the notice of removal or filed certifications joining in the removal at that time, and 2) the actions are not completely preempted by federal law.
With regard to plaintiffs' assertions that the removal was defective for failure of the defendants to affirmatively join in the removal, we note that defendant Baxter's notice of removal named counsel for each of the other defendants. The notice asserted that all of the defendants had given their "express authorization" to "represent herein" their "consent[ing] to and join[ing] in the removal of this action," and that each had been "served with the Summons and Complaint." Only counsel for Baxter signed the notice of removal, however, because "consent" was obtained by telephone in order to "effectuate the timely removal of this action."
Plaintiffs contend that this alleged consent is insufficient to meet the requirements of the rule. Plaintiffs note that in Creekmore v. Food Lion, Inc., 797 F. Supp. 505 (E.D.Va. 1992), the judge ruled that each defendant must file a notice of removal or unambiguously join in or consent to another defendant's notice. The judge rejected the argument that removal was proper where the defendant had attested to the consent of the other defendants in the notice. However, in that case the court emphasized that even after the motion to remand was filed, defendants had failed to advise the court of their consent to removal, failed to appear at the hearing on the motion to remand, and failed to join a motion for reconsideration of the court's decision to remand the case to state court. Id. at 509, n. 8.
Here, each defendant has filed a certification with the court asserting that it affirmatively consented to the notice of removal, and each has joined the opposition to the plaintiffs' motions to remand. As such, even if the bare assertions of consent were less than adequate, defendants' late assurances that they did, in fact, consent to be joined in the removal will be accepted by the court. In the future, however, the court cautions that formal expressions of consent, in the form of certifications or joining in the notice of removal by signing the notice, will be required within the time provided for under 28 U.S.C. § 1446. Because we find that defendants met the procedural requirements for removal, the court will focus on plaintiffs' argument that the removal was improper because the federal statute has not completely preempted plaintiffs' claims.
28 U.S.C. § 1441 governs removal of civil actions from state to federal courts. § 1441(a) requires, as a condition of removal, that the federal court have original jurisdiction over the action. In this case, defendants do not argue that complete diversity exists between the parties. Instead, defendants contend that this court has federal question jurisdiction over the action.
A. Whether there was a federal question presented on the face of plaintiffs' complaints.
28 U.S.C. § 1331 provides for federal question jurisdiction where a civil action "arise[s] under the. . . laws. . . of the United States." 28 U.S.C. § 1331. Further, "'in order for a case to be removable under § 1441 and § 1331, the well-pleaded complaint rule requires that the federal question be properly presented on the face of the plaintiffs properly pleaded complaint.'" Krashna v. Oliver Realty, Inc., 895 F.2d 111, 113 (3d Cir. 1990)(quoting Railway Labor Executives Ass'n v. Pittsburgh & L.E. R.R., 858 F.2d 936, 939 (3d Cir. 1988).
Here, plaintiffs' "well-pleaded complaint" does not state a claim based on federal law. However, plaintiffs' negligence claims assert nineteen different ways in which defendants breached their duty of care to the plaintiffs. (See, for example, Zarnosky complaint, p. 5-9, paras. a. to s.). One of these nineteen statements of breach of care includes "fail[ure] to comply with applicable governmental regulations and/or statutes and/or recognized industry standards pertaining to the manufacture, design, assembly and fabrication of said latex-containing products). (Zarnosky complaint, p. 9, para. n.). Defendants do not contend that this paragraph asserts a federal claim. Although defendants refer to this paragraph of the complaints, they do so asserting that the paragraph "demonstrates that the federal causes of action provided under the FDCA 'seek to vindicate the same interests' as the plaintiffs' purported state law claims, " thereby supporting their argument that the Third Circuit test for "complete preemption" is met. (Defendants' brief, p. 21). However, even if the defendants had argued that paragraph "n" of the complaint meets the requirement that the complaint raise a federal question on its face, we would not agree. Plaintiff does not seek relief under the MDA, but instead seeks to use the federal requirements as evidence of a standard of care, in the same manner as "industry standards" are used. The fact that the complaint alludes generally to "applicable governmental regulations and/or statutes" does not raise a federal question on its face. See Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 310 (3d Cir. 1994)(complaint stating that it was seeking to enforce contract made pursuant to Federal Health Benefits Employees Act, despite possibility that state claims might be ultimately preempted, did not raise a federal question on its face "merely by virtue of the fact that it alludes to a federal contract"), cert. denied, 131 L. Ed. 2d 555, 115 S. Ct. 1691 (1995). Further, even if plaintiffs wanted to pursue relief under the MDA, defendants concede that the federal statute does not provide a cause of action for private litigants.
(Defendants' brief, p. 21).
However, as the court explained in Krashna, 895 F.2d at 113, even though plaintiffs' complaint does not assert a claim for relief under federal law, the "complete preemption" exception to the well-pleaded complaint rule will permit removal on the basis of federal question jurisdiction where a statute's preemptive force is "so 'extraordinary' that it 'converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987) (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987)). The Krashna court further explained:
"The complete preemption doctrine holds that 'Congress may so completely preempt a particular area, that any civil complaint raising this select group of claims is necessarily federal in character.'" Railway Labor, 858 F.2d 936 at 939 (quoting Metropolitan Life, 481 U.S. at 63-64, 107 S. Ct. at 1547). For the proposes of removal, "once an area of state law has been completely preempted, any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Caterpillar, 482 U.S. at 393, 107 S. Ct. at 2430; see Railway Labor, 858 F.2d at 939.