United States District Court, D. New Jersey
ALVIN BREITNER, et al. Plaintiffs,
MERCK & CO., INC., MERCK SHARP & DOHME CORP., AND MCKESSON CORP. Defendant,
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
before the Court is Plaintiffs' Motion to Remand this
matter to the Superior Court of New Jersey pursuant to 28
U.S.C. § 1447, (ECF No. 7).
case, eighty-nine separate Plaintiffs are named, five of whom
are from New Jersey and are non-diverse from
Merck.The remaining Plaintiffs are from other
states. Plaintiffs allege non-specific injuries purportedly
caused by Zostavax, Merck's FDA approved vaccine that
protects against shingles.
addition, there is a pending application before the United
States Panel on Multidistrict Litigation (MDL Panel) to
transfer the matter to a centralized court in the Eastern
District of Pennsylvania.
procedural history and facts are set forth below. More
importantly, the parties agree to same.
suit was filed on July 3, 2018. Plaintiffs did not personally
serve Merck in this case prior to removal. 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
November 8, 2018, Merck removed this case to federal court.
Within the notice of removal, Merck states that complete
diversity of citizenship exists among the parties, as
eighty-four of the eighty-nine Plaintiffs in this action are
completely diverse from all the named Defendants. (ECF No. 1,
at ¶ 16). That is, five Plaintiffs, Andree Dupree,
Patricia Jardine, Ruth Cooleen, Mary Thompson, and Faith
Cowart reside in New Jersey, (See Breitner Comp.,
ECF No. 1-1, at ¶¶ 11, 21, 37, 52, 62), while Merck
is a New Jersey corporation with principal places of business
in Kenilworth, New Jersey (Id. at ¶ 98-99), and
McKesson Corp. is a Delaware corporation with its principal
place of business in Sacramento, CA. (Id. at ¶
100). In addition, Merck asserts that each Plaintiffs alleged
damages exceed $75, 000.
December 7, 2018, Plaintiffs filed the motion to remand,
arguing there is not complete diversity because five
Plaintiffs hailed from New Jersey, where Merck resides. (ECF
No. 7). Merck counters that these five Plaintiffs were
fraudulently misjoined. (Id. at ¶32).
December 11, 2018, Merck sought a stay of all removed cases
pending transfer to the Eastern District of Pennsylvania by
the Multidistrict Litigation Panel (ECF No. 8). That
application was denied. See Anderson v. Merck, et
al, No. 18-cv-15844, ECF No. 14.
January 7, 2018, oral argument on the motion was heard.
related case, Anderson v. Merck, et al., No.
18-cv-15844, was decided to permit removal based on a recent
Third Circuit decision, which held that the forum defendant
rule does not apply when personal service of the complaint
did not occur prior to removal. Encompass Ins. Co. v.
Stone Mansion Rest. Inc., 902 F.3d 147, 152 (3d Cir.
of the briefing for this motion, there were two Orders
(attached as exhibits) from similar Zostavax litigation cases
where there were multiple Plaintiffs named in a single suit.
(See ECF Nos. 12-2, 12-3). In these Orders, the
Courts had ordered that the complaint be severed, and further
ordered each Plaintiff to file their own suit. (Id.)
More specifically, the judge presiding over the New Jersey
Zostavax Multicounty Litigation in the Superior Court of New
Jersey ordered that "[e]ach action shall be limited to
one plaintiff and/or a related household of
plaintiffs-----All Plaintiffs listed in complaints prior to
this order must move to bifurcate their claims and refile the
complaints individually." (ECF No. 12-2, at ¶
8(c)). Similarly, on October 3, 2018, the presiding
transferee Judge sitting in the Eastern District of
Pennsylvania ordered that "No ...