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Susan Giovanni v. Mentor Worldwide

November 21, 2012

SUSAN GIOVANNI PLAINTIFF,
v.
MENTOR WORLDWIDE, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

MEMORANDUM OPINION

SIMANDLE, Chief Judge:

Presently before the court is Plaintiff Susan Giovanni's motion to remand [Docket Item 18] which is opposed by Defendants Ethicon Women's, Inc., Ethicon Womens Health and Urology, Gynecare (collectively "Ethicon"), Mentor Worldwide, LLC ("Mentor"), and Johnson & Johnson. The Court finds as follows:

1. Plaintiff Susan Giovanni, a citizen of Louisiana, initially filed this complaint in the In re Pelvic Mesh/Gynecare Litigation, Master Docket No. L-6341-10, pending in the Superior Court of New Jersey, Atlantic County Law Division on June 29, 2012, to recover damages pursuant to New Jersey state law for personal injuries caused by the defective product ObTap Transoburator sling. Specifically, Plaintiff filed a master short form complaint and master long form complaint against the Defendants to join in this consolidated state court litigation. Plaintiff alleges she suffered injuries caused by the surgical implantation of the ObTap Transoburator sling, a pelvic mesh system used to treat stress urinary incontinence.

2. Defendants Ethicon and Johnson & Johnson are New Jersey corporations with their principal place of business in New Jersey and therefore citizens of New Jersey for diversity purposes. Defendants Ethicon and Johnson & Johnson were served with copies of the complaint and summons on July 12, 2012.

3. Defendant Mentor is also a citizen of New Jersey, as it is a limited liability corporation whose sole member is Ethicon, Inc. Defendant Mentor received a copy of Plaintiff's complaint and summons via certified mail on or about July 16, 2012. [Docket Item 1, Notice of Removal ¶ 25.) That same day, on July 16, 2012, Mentor removed the case to federal court. Id. Mentor also filed a copy of the Notice of Removal with the Superior Court of New Jersey, Atlantic County, Law Division pursuant to 28 U.S.C. § 1446(d).

4. Mentor removed this action based on diversity jurisdiction under 28 U.S.C. § 1332. Mentor maintained that complete diversity exists because Plaintiff is a citizen of Louisiana and all the Defendants are citizens of New Jersey. Mentor also stated that the amount in controversy would exceed $75,000. Mentor acknowledged that removal was improper where a "properly joined" defendant is a "citizen of the State in which such action is brought." 28 U.S.C. § 1441(b). However, Mentor argued that Ethicon and Johnson & Johnson's citizenship should be ignored for purposes of the forum-defendant rule because they were fraudulently joined. Mentor also argued that it had not yet been properly served in accordance with New Jersey Rule of Civil Procedure 4:4-4 because it was not personally served with Plaintiff's complaint. Consequently, Mentor maintained its citizenship should also be disregarded for purposes of the forum-defendant rule and removal was therefore appropriate.

5. In addition, Defendant Mentor notified the Judicial Panel on Multidistrict Litigation that this case was a potential tag-along action to MDL 2004, a multi-district litigation created to coordinate all federal cases sharing factual issues as to whether Mentor's ObTape sling was defectively designed and whether Mentor failed to provide adequate warnings concerning the device. Pursuant to its rules, the Panel automatically issued CTO-48 conditionally transferring this case to MDL No. 2004 on July 19, 2012. Defendant Mentor also filed a motion to stay pending transfer to the MDL litigation. [Docket Item 4.]

6. Plaintiff subsequently filed the instant motion to remand on August 6, 2012. [Docket Item 18.] The Plaintiff argues that removal is improper because all of the Defendants are citizens of New Jersey and the forum-defendant rule precludes removal. Plaintiff further argues that Johnson & Johnson and Ethicon are not fraudulently joined. Mentor opposes Plaintiff's motion to remand and maintains that the court should not consider the citizenship of any of the defendants and therefore cannot apply the forum-defendant rule. Specifically, Mentor argues that its own citizenship should be disregarded because it was not properly served with the complaint and the forum-defendant rule only prohibits removal "if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b)(emphasis added). In addition, Mentor argues that Johnson & Johnson and Ethicon were fraudulently joined and therefore their citizenship cannot be considered in determining whether removal is proper.

7. The Magistrate Judge granted Defendants' motion to stay on August 29, 2012 without prejudice to the discretion of the undersigned to decide the Plaintiff's motion to remand before the final MDL transfer decision is made. [Docket Item 31.] The final transfer decision had not been made and the court will now decide the instant motion to remand.

8. The party removing an action to federal court bears the burden of proving that the federal court has jurisdiction. Samuel-Basset v. KIA Motors Am. Inc., 357 F.3d 392, 396 (3d Cir. 2004). "Removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand." Batoff v. State Farm Ins. Co., 977 F.3d 848, 851 (3d Cir. 1992). Courts are required to strictly construe 28 U.S.C. § 1441 against removal and rigorously enforce this policy "so that the Congressional intent to restrict federal diversity jurisdiction is honored." Samuel-Basset, 357 F.3d at 396. Further, by construing removal statutes strictly, the court gives proper weight to the Plaintiff's choice of forum. Zelma v. United Online Communications, Inc., No. 08-1030, 2008 WL 2625349 at *2 (D.N.J. June 27, 2008)(citing McManus v. Glassman's Wynnefield, Inc., 710 F.Supp. 1043, 1045 (E.D. Pa. 1989)).

9. 28 U.S.C. § 1441(b)(2), otherwise known as the forum-defendant rule, provides that a "civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title [28 USCS § 1332(a)] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." The forum-defendant rule recognizes that removal on the basis of diversity jurisdiction is intended to protect out-of-state defendants from possible local prejudices in state court and consequently, the need for such protection is absent in cases where the defendant is a citizen of the forum where the case is filed. DeAngelo-Shuayto v. Organon USA, Inc., No. 07-2923, 2007 U.S. Dist. LEXIS 92557, *8 (D.N.J. 2007). Indeed, the Third Circuit has explained:

If diversity jurisdiction exists because of a fear that the state tribunal would be prejudiced towards the out-of-state plaintiff or defendant, that concern is understandably allayed when that party is joined with a citizen from the forum state. Indeed, when members from the forum state are present on both sides of the controversy, it becomes more difficult to ...


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