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Norman R. Eaton v. Hoffman-La Roche Inc.

August 27, 2012

NORMAN R. EATON, PLAINTIFF,
v.
HOFFMAN-LA ROCHE INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pratter, J.

MEMORANDUM

Defendants Hoffman-LaRoche and Roche Laboratories (the "Roche Defendants") removed this products liability matter involving the drug Accutane on June 4, 2012.*fn1 There is both a mass tort Accutane litigation in the Philadelphia Court of Common Pleas, and an Accutane MDL in the Middle District of Florida which has been pending since 2004. Shortly after removal, Plaintiff Norman Eaton filed a motion to remand this action to state court. The Court heard oral argument on the matter on July 19, 2012. For the following reasons, the Court will grant Plaintiff's motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Norman Eaton initiated his action in the Philadelphia Court of Common Pleas by filing writs of summons in the fall of 2011, naming Hoffman LaRoche, Roche Laboratories, and Wolters Kluwer as Defendants. Pursuant to Case Management Order No. 1 in the Accutane mass tort litigation in the Philadelphia Court of Common Pleas, on December 1, 2011 plaintiffs' counsel collectively filed a Master Long Form Complaint, setting forth various state law products liability claims against the Defendants. While the Master Long Form Complaint governs all cases filed as part of the Accutane litigation, individual plaintiffs must also file their own Short Form Complaints, which may incorporate by reference any or all of the Master Long Form Complaint, as well as add any additional claims specific to that individual plaintiff. Mr. Eaton has not yet filed a Short Form Complaint.

In the Master Long Form Complaint, the claims against Defendant Wolters Kluwer center on a patient education monograph published by Wolters Kluwer, which plaintiffs allege failed to warn them of certain risks associated with the drug Accutane. The Master Long Form Complaint alleges that Wolters Kluwer published that monograph at all relevant times. Defendants claim that Wolters Kluwer was fraudulently joined because Medi-Span, a Wolters Kluwer subsidiary, published the monograph and was acquired by Wolters in December 2001 pursuant to an order of the FTC forcing Medi-Span's prior owner to divest itself of that company. On May 29, 2012, Mr. Eaton filed a Plaintiff Fact Sheet which stated that he took Accutane in 2000, before Wolters owned Medi-Span. Therefore, the Roche Defendants argue that Mr. Eaton could not possibly have relied upon Wolters's misrepresentations because Wolters did not even own the company that produced the offending monograph until after Mr. Eaton took Accutane, and because the Master Long Form Complaint is silent as to any issues regarding, for instance, successor liability.

The Roche Defendants removed this action a few days after Mr. Eaton filed his Fact Sheet, basing their removal on diversity jurisdiction. They both have principal places of business in New Jersey and are incorporated in New Jersey and Delaware, respectively. Mr. Eaton is a resident of Texas. Defendant Wolters Kluwer Health is a Pennsylvania resident, which would make removal improper, unless Wolters was fraudulently joined to defeat diversity jurisdiction.

Based on the serious types of disorders listed in the Master Long Form Complaint and the damages demanded therein -- and, seemingly, not necessarily on any information on damages sought by Mr. Eaton specifically -- the Roche Defendants claim that the damages sought in the action exceed the required amount in controversy.

Mr. Eaton promptly filed a motion to remand this action to state court, arguing that Wolters Kluwer was not fraudulently joined. This Court agrees.

II. LEGAL STANDARD

Under the removal statute,

Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none 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) (emphasis added). This restriction on removal is known as the "forum defendant rule" and provides that "removal is improper if the defendant is a citizen of the state in which the suit is originally filed." Allen v. GlaxoSmithKline PLC, Civ. No. 07--5045, 2008 U.S. Dist. LEXIS 42491, at *4 (E.D. Pa. May 20, 2008) (citing Korea Exchange Bank, New York Branch v. Trackwise Sales Corp., 66 F.3d 46, 48 (3d Cir. 1995)). This limitation exists because "[t]he purpose of diversity jurisdiction is to avoid prejudice against out-of-state defendants." Allen, 2008 U.S. Dist. LEXIS 42491, at *10 (citing McSparan v. Weist, 402 F.2d 867, 876 (3d Cir. 1968)). However, "[t]he removal statutes 'are to be strictly construed against removal and all doubts should be resolved in favor of remand.'" Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (quoting Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)) (additional citations omitted).

Removal must take place "within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based," or "if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b), (c)(3).

All defendants in an action must timely consent to the removal in order to remove an action to federal court. Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995). However, this unanimity rule maybe disregarded if a defendant has been fraudulently joined. Id. at 213 n. 4. Joinder is fraudulent "where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment." Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) ...


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