United States District Court, D. New Jersey
G. SHERIDAN, U.S.D.J.
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
procedural history is brief, and germane to the motion to
remand. More importantly, the parties have agreed to same.
suit was filed on October 4, 2018. The remaining 103 cases
were filed between July 2018 and mid-October 2018.
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.
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
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.
about November 28, 2018, Plaintiff filed the motion to remand
in this case (ECF No. 3), and in the other 103 cases shortly
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).
January 7, 2018, oral argument on the motion was heard.
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).
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. § 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 ...