United States District Court, Eastern District of Pennsylvania
JOEL H. SLOMSKY, J.
On March 27, 2014, Plaintiffs Scott Leslie Michael Fontan, Elaine Ann Fontan Lemons, and Glen Paul Fontan filed this product liability action in the Court of Common Pleas of Philadelphia, Pennsylvania, as Successors in Interest to Maureen Jane Woodings Fountan, who is deceased. In this case, Plaintiffs have filed suit against eight named Defendants: (1) Janssen Research & Development, LLC (“JRD”); (2) Johnson & Johnson Company (“J & J”); (3) Janssen Ortho, LLC; (4) Janssen Pharmaceuticals, Inc. (“JPI”); (5) Bayer Corporation; (6) Bayer AG; (7) Bayer HealthCare LLC; and (8) Bayer HealthCare Pharmaceuticals Inc.
On March 28, 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 Plaintiffs and Removing Defendant and the amount in controversy exceeds the required amount. (Doc. No. 1 at ¶ 3.)
On April 29, 2014, Plaintiffs filed a Motion to Remand the case to the Philadelphia Court of Common Pleas. Plaintiffs assert 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.
Plaintiffs seek damages for injuries allegedly caused to decedent Maureen Jane Woodings Fountan by the prescription medication Xarelto, which is manufactured and distributed by Defendants. (Doc. No. 1-1 at ¶ 2.) Plaintiffs Scott Leslie Michael Fontan, Elaine Ann Fontan Lemons, Glen Paul Fontan, and decedent Maureen Jane Woodings Fountan are all residents of Louisiana. (Id. at ¶ 1.) Defendants are citizens of the following states: (1) JRD is a citizen of Pennsylvania and New Jersey (Id. at ¶ 5); (2) J & J is a citizen of New Jersey (Id. at ¶ 6); (3) Janssen R & D is a citizen of Pennsylvania (Id. at ¶ 7); (4) Removing Defendant Janssen Ortho, LLC is a citizen of Ireland and Puerto Rico (Doc. No. 1 at ¶ 7); (5) JPI is a citizen of Pennsylvania and New Jersey (Id. at ¶ 8); (6) Bayer Corporation is a citizen of Pennsylvania (Doc. No. 1-1 at ¶ 10); (5) Bayer AG is a citizen of Germany (Id. at ¶ 11); (6) Bayer HealthCare LLC is a citizen of Pennsylvania (Doc. No. 13 at 4); (7) Bayer HC is a citizen of Pennsylvania (Id. at n.3); and (8) Bayer HealthCare Pharmaceuticals Inc. is a citizen of Delaware and New Jersey (Doc. No. 1 at ¶ 12). It is uncontested that at least one Defendant is a citizen of Pennsylvania and is therefore a “forum Defendant, ” that is, a citizen 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 ¶ 23.)
It is undisputed that none of the Defendants were served until after this action was removed to this Court on March 28, 2014. On March 31, 2014, Defendants JRD, J & J, JPI, Bayer Corporation, Bayer HP, and Bayer HC were served. (Doc. No. 13 at 2-3.) As of April 29, 2014, the date of Plaintiffs’ Motion to Remand, Janssen Ortho, LLC was in the process of being served. (Id. at n. 2.) According to Plaintiffs, Bayer AG is a nominal Defendant located in Germany who has not 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 ...