United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on a motion to remand the
action to state court filed by Plaintiff. (ECF No. 7).
According to the complaint, Plaintiff was exposed to Johnson
& Johnson baby powder, which contained asbestos,
beginning in the late 1970s and continuing into the 1990s.
(Notice of Removal, Ex. 1, Complaint
(“Complaint"), ECF No. 1-1 at ¶ 1). The baby
powder caused Plaintiff to develop mesothelioma.
(Id. at ¶ 7).
September 14, 2018, Plaintiff filed a complaint in New Jersey
Superior Court, Middlesex County. In addition to the moving
Defendants, the complaint also names as defendants: Brenntag,
N.A.; Brenntag Specialties, Inc.; Sierra Talc Company; United
Talc Company; Luzenac America, Inc.; Cyprus Industrial
Minerals Company; Johnson & Johnson Consumer Companies,
Inc.; and Whitaker, Clark & Daniels, Inc. Immediately
after the complaint was filed, Imerys removed the case to
this Court, citing 28 U.S.C. § 1441(b)(2) and
Encompass Ins. Co. v. Stone Mansion Rest, Inc., 902
F.3d 147, 153 (3d Cir. 2018). (See Notice of
Removal, ECF No. 1 at ¶ 20).
is a resident of Wisconsin. (Id. at ¶ 10).
Imerys is a Delaware corporation with its principal place of
business in California. (Id. at ¶ 11). Cyprus
Amax is a Delaware corporation with a principal place of
business in Arizona. (Id. at ¶ 12). Johnson
& Johnson; Johnson & Johnson Consumer Companies,
Inc.; Brenntag Specialties, Inc.; and Brenntag North America
are "forum defendants," having both their places of
incorporation and principal places of business in New Jersey.
(Id. at ¶¶ 13-16).
argues the Court should remand this matter to state court
pursuant to the forum defendant rule because it served the
forum defendants with the complaint before Defendants removed
the action to federal court. Pursuant to the forum defendant
rule, a civil action otherwise removable based on 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."
28 U.S.C. § 1441(b)(2). Courts have recognized that
Congress enacted the properly joined and served rule "to
prevent a plaintiff from blocking removal by joining as a
defendant a resident party against whom it does not intend to
proceed, and whom it does not even serve." Encompass
Ins. Co. v. Stone Mansion Restaurant, Inc., 902 F.3d
147, 153 (3d Cir. 2018) (citations omitted).
remand is not proper because the forum defendants were not
"properly joined and served" when the removal was
complete. 28 U.S.C. § 1441(b)(2). "Personal service
is the primary method of service in New Jersey."
City of Passaic v. Shennett, 915 A.2d 1092, 1097 (
N.J.Super.Ct.App.Div. 2007). Service by certified mail is
permitted only "[i]f personal service cannot be effected
after a reasonable and good faith attempt." N.J. Ct. R.
4:4-3(a). Even where proper, service by certified mail is
"effective for obtaining in personam jurisdiction only
if the defendant answers the complaint or otherwise appears
in response thereto." N.J. Ct. R. 4:4-4(c). There is no
showing that Plaintiff first attempted personal service of
the complaint before serving it by certified mail. And,
removal was completed before the forum defendants answered or
otherwise appeared in response to the complaint.
Third Circuit has recently addressed this exact issue and
held that remand is not permitted because the "properly
joined and served" requirement imposes "a
bright-line rule." Encompass Ins. Co., 902 F.3d
at 153. The court acknowledged that the "result may be
peculiar in that it allows [a defendant] to use pre-service
machinations to remove a case that it otherwise could
not," but the language of the statute rather than the
peculiar result controls. Id. at 153-54. The Court
We are aware of the concern that technological advances since
enactment of the forum defendant rule now permit litigants to
monitor dockets electronically, potentially giving defendants
an advantage in a race-to-the-courthouse removal scenario.
... If a significant number of potential defendants (1)
electronically monitor dockets; (2) possess the ability to
quickly determine whether to remove the matter before a
would-be state court plaintiff can serve process; and (3)
remove the matter contrary to Congress' intent, the
legislature is well-suited to address the issue.
Id. at l53 n.4.
the forum defendants were not served with the complaint
before Imerys completed removal, the forum defendants were
not "properly joined and served" under the removal
statute. The Court is bound by Third Circuit precedent to
deny Plaintiffs motion to remand.
matter comes before the Court on a motion filed by Plaintiff
to remand the action to state court. The Court has considered
the written submissions of the parties and held oral argument
on December 6, 2018. Accordingly, for the reasons stated
herein and for good cause shown, IT IS on
this 20th day of June, 2019;
that the motion to remand to state court filed by ...