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Anderson v. Merck & Co., Inc.

United States District Court, D. New Jersey

January 10, 2019

DALE ANDERSON, Plaintiff,
v.
MERCK & CO., INC., MERCK SHARP & DOHME CORP., AND MCKESSON CORP. Defendant,

          MEMORANDUM

          PETER G. SHERIDAN, U.S.D.J.

         This matter is before the Court on a motion to remand. Since the same application is pending in another 103 cases that are based on similar facts and on one recent Third Circuit opinion (Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 152 (3d Cir. 2018)), the parties have agreed and stipulated that this decision applies to the other 103 cases. In addition, these actions are subject to an application before the United States Judicial Panel on Multidistrict Litigation (MDL Panel) to transfer and centralize the cases before the Eastern District of Pennsylvania.

         I.

         The procedural history is brief, and germane to the motion to remand. More importantly, the parties have agreed to same.

         This suit was filed on October 4, 2018. The remaining 103 cases were filed between July 2018 and mid-October 2018.

         Plaintiff did not personally serve Defendant Merck in this case prior to removal. Moreover, the parties concur that personal service was never made on Defendants Merck or McKesson in any of the other 103 cases.

         Plaintiff contends that the personal service was delayed because Plaintiff had not been assigned a Tracking Assignment Number ("TAN") from the Clerk of the Superior Court of New Jersey, which is necessary before personal service may occur[1].

         On November 8, 2018, Merck removed this case to federal court as well as the other 103 cases. Within the notice of removal (ECF No. 1), Merck relies upon Encompass Ins. Co., noting that Merck is a resident of the State of New Jersey, but that the forum defendant rule does not apply because it was never served. Id. at page 2. In addition, Merck asserts that Plaintiffs alleged damages exceed $75, 000. Id. at ¶ 20.

         On or about November 28, 2018, Plaintiff filed the motion to remand in this case (ECF No. 3), and in the other 103 cases shortly thereafter.

         In early December, 2018, Merck sought a stay of all removed cases pending transfer to the Eastern District of Pennsylvania by the Multidistrict Litigation Panel (ECF No. 5). That application was denied (ECF No. 14).

         On January 7, 2018, oral argument on the motion was heard.

         II.

         Generally, a federal court has subject matter jurisdiction if there is diversity of citizenship and the damages exceed $75, 000. A statutory exception occurs when the forum defendant rule applies. 28 U.S.C. § 1441(b)(2). Recently, in Encompass Ins. Co., the Third Circuit reviewed and limited the said rule. The forum defendant rule "provides that [a] civil action otherwise removable solely on the basis of [diversity jurisdiction] 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." Encompass Ins. Co., 902 F.3d at 152 (emphasis added); see also 28 U.S.C. § 1441(b)(2).

         In Encompass Ins. Co., the Third Circuit resolved a split among the courts in this district regarding the application of the forum defendant rule to pre-service removal. The Third Circuit permitted the removal based on 28 U.S.C. ยง 1441 (b), which provides ''[a] civil action otherwise removable solely on the basis of [diversity] . . . may not be removed if any of the properties in interest properly joined and served as defendants is a citizens of the State in which such action is brought." Relying on the language of the statute, the Court explained that "the language of the forum defendant rule in Section 1441(b)(2) is unambiguous. Its ...


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