United States District Court, E.D. Pennsylvania
JOEL H. SLOMSKY, District Judge.
On February 18, 2014, Plaintiff Virginia G. Stunteback ("Plaintiff") filed this product liability action in the Court of Common Pleas of Philadelphia, Pennsylvania. In this case, Plaintiff has filed suit against seven named Defendants: (1) Janssen Research & Development, LLC ("JRD"); (2) Janssen Ortho, LLC; (3) Jansen Pharmaceuticals, Inc. ("JPI"); (4) Bayer Corporation; (5) Bayer AG; (6) Bayer HealthCare LLC; and (7) Bayer HealthCare Pharmaceuticals Inc.
On February 24, 2014, before any Defendant had been served with the Complaint, Defendant Janssen Ortho, LLC ("Removing Defendant") removed the case to this Court. Removing Defendant contends that this Court has original jurisdiction pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between Plaintiff and Removing Defendant and the amount in controversy exceeds the required amount. (Doc. No. 1 at ¶ 3.)
On March 26, 2014, Plaintiff filed a Motion to Remand the case to the Philadelphia Court of Common Pleas. Plaintiff asserts that the removal violates 28 U.S.C. 1441(b), the "forum defendant" rule, and is otherwise procedurally infirm because all Defendants have not joined in the removal. The Motion to Remand is now ripe for disposition.
Plaintiff seeks damages for injuries allegedly caused by the prescription medication Xarelto, which is manufactured and distributed by Defendants. (Doc. No. 1 at ¶ 2.) Plaintiff is a resident and citizen of Kentucky. (Id. at ¶ 4.) Defendants are citizens of the following states: (1) JRD is a citizen of Pennsylvania and New Jersey (Id. at ¶ 5); (2) Removing Defendant Janssen Ortho, LLC is a citizen of Ireland and Puerto Rico (Doc. No. 13 at n. 2); (3) JPI is a citizen of Pennsylvania and New Jersey (Doc. No. 1 at ¶ 7); (4) Bayer Corporation is a citizen of Indiana and Pennsylvania (Id. at ¶ 8); (5) Bayer AG is a citizen of Germany (Id. at ¶ 9); (6) Bayer HealthCare LLC is a citizen of Indiana and Pennsylvania (Doc. No. 13 at n. 2); and (7) Bayer HealthCare Pharmaceuticals Inc. is a citizen of Delaware and New Jersey (Doc. No. 1 at ¶ 11). It is uncontested that Defendants JRD, JPI, and Bayer HealthCare LLC are citizens of Pennsylvania and are therefore "forum Defendants, " that is, they are citizens of the state in which the action is brought.
On February 24, 2014, Removing Defendant, a non-forum Defendant, filed the Notice of Removal. (Doc. No. 1). No other Defendant actually signed the Notice of Removal or consented to joinder in the Notice. The Notice of Removal states that "[u]pon information and belief, Defendants in this action consent to removal." (Id. at ¶ 22.)
It is undisputed that none of the Defendants were served until after this action was removed to this Court on February 24, 2014. On February 25, 2014, Defendants JRD and JPI were served. (Doc. No. 13 at 7.) On February 26, 2014, all Bayer Defendants, except for Bayer AG, were served. (Id.) On March 28, 2014, Removing Defendant was served. (Id.) As of April 14, 2014, the date of Plaintiff's Response to the Motion to Dismiss, Bayer AG had not yet been served. (Id.)
III. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove a civil action from state court to federal court if the federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a). "For removal predicated upon diversity of citizenship, a proper exercise of federal jurisdiction requires satisfaction of the amount in controversy requirement as well as complete diversity between the parties, that is, every plaintiff must be of diverse state citizenship from every defendant." In re Briscoe , 448 F.3d 201, 215 (3d Cir. 2006) (citing Grand Union Supermarkets of the Virgin Islands, Inc. v. H.E. Lockhart Mgmt., Inc. , 316 F.3d 408, 410 (3d Cir. 2003)). A defendant seeking removal because a federal court has original jurisdiction must do so within thirty days of service of the complaint. 28 U.S.C. § 1446(b). "The defendants bear the burden of establishing removal jurisdiction and compliance with all pertinent procedural requirements." Boyer v. Snap-On Tools Corp. , 913 F.2d 108, 111 (3d Cir. 1990).
A plaintiff may challenge removal by filing a motion to remand the case to state court. Remand to state court is appropriate for "(1) lack of district court subject matter jurisdiction or (2) a defect in the removal process." PAS v. Travelers Ins. Co. , 7 F.3d 329, 352 (3d Cir. 1993). Upon a motion to remand, "it is always the removing party's burden to prove the propriety of removal, and any doubts about the existence of federal jurisdiction must be resolved in favor of remand." Lumbermans Mut. Cas. Co. v. Fishman, No. 99-0929 , 1999 WL 744016, at *1 (E.D. Pa. Sep. 22, 1999) (citations omitted).
Removing Defendant relies on diversity of citizenship jurisdiction here as the basis for original or subject matter jurisdiction in this Court. Removal is precluded, however, when one of the defendants is a citizen of the forum state in which a case is brought. See 28 U.S.C. § 1441(b)(2). This is known as the "forum defendant rule." Section 1441(b)(2) states:
A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a ...