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Portnoff v. Janssen Pharmaceuticals, Inc.

United States District Court, E.D. Pennsylvania

February 22, 2017



          Goldberg, J.

         One hundred and six (106) separate lawsuits were filed in the Court of Common Pleas of Philadelphia County alleging injuries sustained as a result of ingesting Invokana, a prescription drug used to treat Type 2 Diabetes. Plaintiffs describe a variety of ailments, including kidney failure and diabetic ketoacidosis.

         Six separate law firms representing the plaintiffs in a number of these actions filed a “Petition to Consolidate and for Mass. Tort Designation” in the Philadelphia County Court of Common Pleas.[1] The initial consolidation petition was filed on September 23, 2016, but was later withdrawn on October 11, 2016. On the same day, a second petition was filed. Relying on the second petition, Defendants removed all 106 cases to the United States District Court for the Eastern District of Pennsylvania, asserting federal jurisdiction as a mass action pursuant to the Class Action Fairness Act (“CAFA”). See 28 U.S.C. § 1332(d)(11).

         Plaintiff contests removal and has filed a motion to remand arguing that Defendants' attempt to remove those cases was untimely, and also that this Court lacks jurisdiction under CAFA.[2] For the reasons that follow, Plaintiff's motion will be denied, and I will maintain jurisdiction over these cases.


         “A defendant may remove a case in ‘any civil action brought in a State court of which the district courts of the United States have original jurisdiction[.]'” Portillo v. Nat'l Freight, Inc., 169 F.Supp.3d 585, 592 (D.N.J. 2016) (quoting 28 U.S.C. § 1441(a)). CAFA confers on federal district courts original jurisdiction over “mass actions, ” which are defined as “any civil action … in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact[.]” Mississippi ex rel. Hood v. AU Optronics Corp., 134 S.Ct. 736, 739 (2014) (quoting 28 U.S.C. § 1332(d)(11)(B)(ii)).

         To remove a “mass action” under CAFA, four jurisdictional requirements must be met: (1) there must be 100 or more plaintiffs; (2) whose claims are proposed to be tried jointly on the ground that the claims involve common questions of law or fact; (3) minimum diversity; and (4) the amount in controversy must exceed $5, 000, 000, as aggregated across all individual claims. 28 U.S.C. § 1332(d)(2)(A), (d)(11)(B)(i); Hood ex rel. Mississippi v. JP Morgan Chase & Co., 737 F.3d 78, 85 (5th Cir. 2013).[3]

         “CAFA does not change the traditional rule that the party seeking to remove the case to federal court bears the burden of establishing federal jurisdiction.” Lowery v. Alabama Power Co., 483 F.3d 1184, 1208 (11th Cir. 2007) (quoting Evans v. Walter Indus., Inc., 449 F.3d 1159, 1164 (11th Cir. 2006)). However, while “removal statutes must generally be strictly construed, with any doubt to be resolved in favor of remand, the presumption against removal does not apply to class actions invoking jurisdiction under [CAFA].” Gallagher v. Johnson & Johnson Consumer Companies, Inc., 169 F.Supp.3d 598, 602 (D.N.J. 2016). “Congress enacted CAFA to facilitate class actions in federal court, and its provisions should be read broadly, with a strong preference that interstate class actions should be heard in a federal court if properly removed by any defendant.” Id. at 602 (citing Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014)) (internal quotations omitted).

         In ascertaining the removability of a mass action under CAFA, 28 U.S.C. § 1332(d)(11)(A) states that “[f]or purposes of this subsection and section 1453, a mass action shall be deemed to be a class action[.]” The United States Court of Appeals for the Third Circuit has thus recognized that the plain text of § 1332(d)(11)(A) makes clear that a mass action is considered a “class action” for purposes of CAFA's removal provisions. Abraham v. St. Croix Renaissance Grp., L.L.L.P, 719 F.3d 270, 275 (3d Cir. 2013).

         Section 1453(b) states in relevant part that a “class action may be removed to a district court of the United States in accordance with section 1446[.]” 28 U.S.C. § 1453(b). Where an initial pleading does not allege sufficient facts supporting removal under § 1446(b)(1), § 1446(b)(3) dictates that “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)(3) (emphasis added). This provision is central to the dispute before me. “As with jurisdiction, the defendant bears the burden of showing the timeliness of removal.” Mims v. 84 Lumber Co., 2013 WL 4775306, at *2 (D. Del. Sept. 6, 2013).

         II. ANALYSIS

         Plaintiff argues that this case should be remanded because Defendants did not pursue removal within the thirty-day time limit, and also because this Court lacks jurisdiction over the 106 removed cases under CAFA's mass action provision. The timeliness issue is addressed first.

         A. Timeliness

         i. The Parties' Positions

          Plaintiff argues that Defendants could have “first ascertained” that this matter was removable under CAFA when the initial “Petition to Consolidate and for Mass. Tort Designation” (the “Initial Petition”) was filed in the Philadelphia Court of Common Pleas on September 23, 2016. Plaintiff urges that the Initial Petition constituted an “other paper” under § 1446(b)(3) that set forth the basis for federal jurisdiction.[4] As Defendants did not remove this case until November 9, 2016-more than 30 days after the filing of the Initial Petition, Plaintiff asserts that removal was untimely. Plaintiff explains that although the Initial Petition outlined 87 pending cases, it included claims for over 100 Plaintiffs, providing sufficient notice of removability, and therefore, the thirty-day removal clock “started to tick” on September 23, 2016. (Pl.'s Mot. to Remand 3-5; Initial Pet., Ex. 1.)

         Plaintiff further stresses that the October 11, 2016 Petition to Consolidate and for Mass. Tort Designation (the “Second Petition”)-the document which Defendants relied upon as the basis for removal-was merely a “refiled version” of the Initial Petition. According to Plaintiff, the substance of the Initial Petition and the Second Petition was identical, and any basis for removability gleaned from the Second Petition could have been equally ascertained from the Initial Petition. (Id. at 4.)

         Defendants raise several arguments in support of removal. Defendants first point out that the September 23 Initial Petition was withdrawn from the state-court docket on October 11, 2016, and thus any question pertaining to removability based on the Initial Petition was moot.

         Alternatively, Defendants argue that CAFA's numerosity requirement was not satisfied based on the Initial Petition. Defendants explain that the Initial Petition was submitted on behalf of only six (6) law firms that collectively represented fewer than 100 plaintiffs. Defendants acknowledge that the Initial Petition identified additional cases filed by other plaintiffs who were represented by other counsel, and collectively totaled over 100 plaintiffs. However, Defendants insist that they had no legal basis to ascertain that these “other plaintiffs” would acquiesce to the proposal for consolidation until the twenty-day deadline for opposing the petition expired pursuant to Philadelphia Civil Rule 208.3(b)(2)(B) (stating that, with a few exceptions, “all Motions have a twenty (20) day response period”).[5] Defendants stress that approximately two (2) days before the deadline to respond to the Initial Petition expired, that petition was withdrawn, and Plaintiff filed the Second Petition. Thus, even if the issue is not moot, Defendants argue that they could not have conclusively ascertained removability from the withdrawn Initial Petition because CAFA's numerosity requirement had not been satisfied.

         Defendants raise a somewhat similar argument with respect to the Second Petition. They point out that, like the Initial Petition, the Second Petition was submitted on behalf of the same six law firms. A chart attached to the Second Petition identified ninety-four (94) cases, and the six law firms were listed as counsel in just sixty-seven (67) of those cases, involving approximately ninety-six (96) plaintiffs-short of the 100 required to meet CAFA's numerosity requirement. Ultimately, Defendants contend that they could not ascertain whether the cases were removable as a mass action until October 31, 2016, 20 days after the Second Petition had been filed (the deadline under Rule 208.3(b)(2)(B) by which “other plaintiffs” were required to object to consolidation). According to Defendants, it was only at this point in time that they could first ascertain that any remaining “other plaintiffs” acquiesced to consolidation, and thus the total number of plaintiffs actually seeking consolidation reached 100.

         Given the filing history described above regarding the petitions to consolidate, Defendants assert that their November 9, 2016 Notice of Removal filed with this Court was timely.[6]

         ii. Did the Initial Petition (September 23, 2016) Serve as a Proper Basis for Removal?

         A legal assistant employed by one of the Plaintiff's attorneys submitted an affidavit regarding the filing of the Initial and Second Petitions at issue. There, she states that on or about October 11, 2016, the “Court Administrator” from the Philadelphia Court of Common Pleas contacted her and “instructed” her to withdraw the Initial Petition and re-file it under a case specific caption. (Pl.'s Mot. to Remand, Ex. G ¶ 7; see also Hr'g Tr. 64:2-15, Jan. 11, 2017.) The affidavit further attests that a “Praecipe to Withdraw Plaintiffs' [Initial] Petition” was filed on October 11, 2016, and a modified petition (the Second Petition) in the “Arthur Portnoff case” was filed at the same time. (Ex. G ¶ 9.) The affidavit concludes that, “[a]ccording to the [state court docket, ] the originally filed Petition was officially discontinued” on October 11, 2016 at 2:23 p.m. (Id.)

         Under these circumstances, I agree with Defendants that the withdrawal of the Initial Petition rendered it legally inoperable for purposes of providing Defendants with an adequate basis for removal. It would be counterintuitive to hold Defendants responsible for ascertaining the removability of a withdrawn filing. Other facts surrounding the filing and withdrawal of the Initial Petition and filing of the Second Petition support this conclusion.

         First, the Initial Petition seems to have improperly initiated a “new case, ” as evidenced by the fact that it included a “Civil Cover Sheet” for the Philadelphia Court of Common Pleas Trial Division. (Initial Pet. at 1.) In fact, the Initial Petition displayed the caption, “Portnoff vs. No Name” on the face of the Petition cover sheet and exhibited an entirely different docket number from the existing case of Portnoff v. Janssen Pharmaceuticals, Inc., et al. (the case in which the Second Petition was filed). Further, the “Answer/Response Date” outlined on the Initial Petition was not correct and listed a date of September 23, 2016-the very same day it was filed. The Second Petition, on the other hand, properly exhibited an “Answer/Response Date” of October 31, 2016, which comports with Defendants' assertion that a twenty-day response period was in effect. (2d Pet. at 1.)

         These facts illustrate the difference in form between the Initial and Second petitions, and establish that the Second Petition was not a “refiled” version of the Initial Petition. In short, the Initial Petition was filed in error, and became a legal nullity on October 11, 2016 when it was “officially discontinued.” (See Hr'g Tr. 67:13-18; 68:6-25; ...

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