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Breitner v. Merck & Co., Inc.

United States District Court, D. New Jersey

January 24, 2019

ALVIN BREITNER, et al. Plaintiffs,
v.
MERCK & CO., INC., MERCK SHARP & DOHME CORP., AND MCKESSON CORP. Defendant,

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         Presently 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).

         In this case, eighty-nine separate Plaintiffs are named, five of whom are from New Jersey and are non-diverse from Merck.[1]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.[2]

         In 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.

         I.

         The procedural history and facts are set forth below. More importantly, the parties agree to same.

         This 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 occur.[3]

         On 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.

         On 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).

         On 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.

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

         A 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. 2018).

         As part 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 ΒΆ 8(c)). Similarly, on October 3, 2018, the presiding transferee Judge sitting in the Eastern District of Pennsylvania ordered that "No ...


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