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Dutton v. Ethicon, Inc.

United States District Court, D. New Jersey

October 18, 2019

DAWN DUTTON, Plaintiff,
v.
ETHICON, INC., AND JOHNSON AND JOHNSON, Defendants. CAROL GILBERT, Plaintiff,
v.
ETHICON, INC., AND JOHNSON AND JOHNSON, Defendants. JOSEPH SNADER, Plaintiff,
v.
ETHICON, INC., AND JOHNSON AND JOHNSON, Defendants. JOHN WILLIAMS, Plaintiff,
v.
ETHICON, INC., AND JOHNSON AND JOHNSON, Defendants. Case Complaint Filed Service Effected Removal Filed State Court Notified

          OPINION

          HON. FREDA L. WOLFSON, U.S. CHIEF DISTRICT JUDGE

         Presently before the Court are motions to remand filed by Plaintiffs Carol Gilbert (“Gilbert”), Dawn and Stephen Dutton (“the Duttons”), Joseph Snader (“Snader”), and John Williams (“Williams”) (collectively, “Plaintiffs”), in the above captioned cases. Plaintiffs are among dozens of plaintiffs who have individually and separately sued Defendants Ethicon, Inc. and Johnson and Johnson (“EJ&J” or “Defendants”) in New Jersey state court, alleging that they received injuries from Defendants' hernia mesh implants.[1] After these cases were filed, EJ&J removed many of these actions to federal court prior to service. In a majority of the removed cases, Plaintiffs have moved to remand. The instant remand motions are representative of four subsets of factually similar remand motions. In each motion, Plaintiffs argue that Defendants' removal violates 28 U.S.C. § 1441(b), the forum defendant rule. For the following reasons, removal was improper in Gilbert and Dutton, and these motions to remand are GRANTED; removal was proper in Snader and Williams, and, as such, these motions to remand are DENIED.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Johnson & Johnson and its wholly owned subsidiary, Ethicon, are incorporated and have their principle place of business in New Jersey. See, e.g., Dutton Complaint, at ¶¶ 9, 11, No. 18-17199, ECF No. 1-2. Dutton, Gilbert, Snader, and Williams sued Defendants for product liability claims stemming from surgically implanted hernia mesh. Dawn Dutton, a citizen of Kentucky, was implanted with a Proceed Hernia Mesh to repair a ventral hernia on April 20, 2005. Id. at ¶¶ 7-8. Gilbert, a citizen of Washington, was implanted with an Ethicon Multi-Layered Hernia Mesh to repair a ventral hernia on June 20, 2014. See Gilbert Complaint at ¶¶ 7-8, No. 18-16672, ECF No. 1-2. Snader, a citizen of Tennessee, was implanted with an Ethicon Proceed Surgical Mesh to repair a ventral incisional hernia on or about February 6, 2008. See Snader Complaint at ¶ 7, No. 18-17553, ECF No. 1-2. And Williams, a citizen of North Carolina, was implanted with Prolene Hernia Mesh to repair an inguinal hernia on August 24, 2011. See Williams Complaint at ¶¶ 7-8, No. 19-174, ECF No. 1-1. Each of these plaintiffs allegedly experienced major complications from these implants that required substantial subsequent medical treatment.

         After each Plaintiff filed suit against EJ&J in New Jersey state court, EJ&J removed each case to federal court on the basis of diversity. The present dispute turns on whether EJ&J's removal was proper under 28 U.S.C. § 1441(b), the forum defendant rule, which bars removal to federal court based on diversity jurisdiction if the case is filed in a state court in which a “properly joined and served” defendant is a citizen. To evade this rule, EJ&J removed each action to this Court after each plaintiff filed suit, but before service was effectuated.

         After more than forty such hernia mesh cases were removed to this District, and motions to remand were filed in many of these actions, the parties conferred to determine the most efficient manner for the Court to address the pending motions. The parties determined that many of the motions shared common issues of law, and, accordingly, agreed to group the motions into three categories. In the first set of cases, Plaintiffs argue that remand is required where service of the forum defendants was made before EJ&J effected removal. In the second set of cases, Plaintiffs argue that remand is necessary when the forum defendants made effectuating service an impossibility. And in the third set, Plaintiffs argue that remand is necessary for the preservation of the forum defendant rule. In accordance with this categorization, on February 19, 2019, this Court ordered Plaintiffs and Defendants to identify no more than three sets of briefs for the Court's consideration.

         The parties chose Gilbert and Dutton to represent the first grouping; however, because there are no material differences in the factual scenarios of those two cases, I will focus on Gilbert for the purposes of this Opinion. Gilbert commenced her action on November 30, 2018, at 9:35 a.m., by filing a Complaint against Defendants in the Middlesex County Superior Court. A New Jersey process server was able to personally serve EJ&J at One Johnson & Johnson Plaza, New Brunswick, New Jersey, by 10:15 a.m., only 40 minutes after filing. As service was being made, Defendants were already in the process of filing their Notice of Removal with the District of New Jersey, which was timestamped at 10:14 a.m. Although EJ&J filed their Notice of Removal in this Court one minute before service of process-they did not provide copies of the Notice to both Gilbert and the state court in Middlesex County until 11:17 a.m.

         The parties chose Snader to represent the second grouping. On December 21, 2018, at 2:46:02 p.m., Snader also commenced his action by filing a Complaint against Defendants in the Middlesex County Superior Court. As soon as Plaintiff's counsel received notification from the New Jersey Civil Law Division that the Complaint had been accepted and time-stamped, the Complaint was compiled to be sent electronically to a New Jersey process server who could not personally serve EJ&J at One Johnson & Johnson Plaza, New Brunswick, New Jersey, because their office was closed and not scheduled to reopen until January 2, 2019. Defendants then filed their Notice of Removal on December 24, 2018. Snader properly served Defendants after their offices reopened, eight days after EJ&J filed a copy of removal notice in state court.

         Finally, the parties chose Williams to represent the third grouping. On January 7, 2019, at 3:10 p.m., Williams commenced his action by filing a Complaint against Defendants in the Middlesex County Superior Court. The very minute Plaintiff's counsel received notification from New Jersey Civil Law Division that the Complaint had been accepted and timestamped, the Complaint was compiled to be sent electronically to a New Jersey process server who was able to personally serve EJ&J at One Johnson & Johnson Plaza, New Brunswick, New Jersey, by close of business the following day, i.e., January 8, 2019. However, by that time, Defendants had already filed their Notice of Removal with the District of New Jersey, which was timestamped on January 7, 2019 at 3:21 p.m, just eleven minutes after Williams's Complaint was filed, and the State Court was notified by 3:23 p.m.[2]

         The various filings and service times are summarized in the following table:

Case
Complaint Filed
Service Effected
Removal Filed
State Court Notified

Gilbert v. Ethicon, Inc. et al. No. 3:18-cv-16672

11/30/18

9:35 a.m.

11/30/18

10:15 a.m.

11/30/18

10:14 a.m.

11/30/18

11:17 a.m.

Snader v. Ethicon, Inc. et al. No. 3:18-cv-17553

12/21/18

2:46 p.m.

After 1/2/19

12/24/18

12/24/18

Williams v. Ethicon, Inc. et al. No. 3:19-cv-00174

1/7/18

3:10 p.m.

1/8/18

By 5:00 p.m.

1/7/18

3:21 p.m.

1/7/18

3:23 p.m.

         Plaintiffs seek to remand to state court each of these cases, along with all of the removed cases that fall under these categories.

         II. LEGAL STANDARD

         Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants to the district court.” The defendant seeking to remove the matter bears the burden of showing that (1) federal subject matter jurisdiction exists, (2) removal was timely filed, and (3) removal was proper. 28 U.S.C. §§ 1441, 1446, 1447; Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). After a case has been removed, the district court, however, may nonetheless remand it to state court if the removal was procedurally defective or subject matter jurisdiction is lacking. 28 U.S.C. § 1447(c).

         In cases where subject matter is based on diversity jurisdiction, see 28 U.S.C. § 1332, each party must be of diverse citizenship from each other and the amount in controversy must exceed $75, 000. 28 U.S.C. § 1332(a); Grand Union Superm. of the Virgin Isl., Inc., v. H.E. Lockhart Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003). Additionally, Section 1441(b)(2) imposes another condition on removal known as the “forum defendant rule, ” which provides that an “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.” “Therefore, the forum defendant rule prohibits removal based on diversity where a defendant is a citizen of the forum state-the state in which the ...


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