United States District Court, E.D. Pennsylvania
from various states originally filed these ten separate
lawsuits against defendants Merck & Co., Inc., Merck
Sharp & Dome, Inc. (collectively “Merck”),
and Ann Redfield, an employee of Merck, in the Court of
Common Pleas of Philadelphia County. The cases all allege
that the plaintiffs were treated with Merck's drug
Zostavax, which is designed to prevent shingles, and that
they suffered various injuries or illnesses as a result. All
claims for relief are grounded in state law.
defendants timely removed all ten lawsuits to this court
pursuant to 28 U.S.C. § 1441(b), and plaintiffs have now
moved to remand them to the state court. See 28
U.S.C. § 1447(c). Defendants maintain that diversity of
citizenship exists and the requisite amount in controversy is
satisfied as mandated under 28 U.S.C. § 1332(a)(1).
Merck and its subsidiary are deemed to be citizens of New
Jersey since they are incorporated and have their principal
places of business in that state. See 28 U.S.C.
§ 1332(c). The defendant Redfield is a citizen of
eight of the actions, plaintiffs are citizens of
Pennsylvania. In the ordinary course, this would leave the
court without subject matter jurisdiction since complete
diversity of citizenship between plaintiffs and defendants is
lacking. Owen Equip. & Erection Co. v. Kroger,
437 U.S. 365, 373-74 (1978). The defendants counter that
Redfield was fraudulently joined and thus must be dismissed
as a party.
two other cases, Bentley and Young, the
plaintiffs are citizens of Nevada and Missouri, respectively.
Here complete diversity exists even with Redfield as a
defendant. Plaintiffs argue, however, that these two cases
were improperly removed because removal of an action where
one of the defendants is a citizen of the forum state is not
permitted. See 28 U.S.C. § 1441(b)(2).
Defendants again argue fraudulent joinder and also invoke the
exception that removal is proper if it occurs before the
in-state defendant is served with the complaint. See
Valido-Shade v. Wyeth, LLC, 815 F.Supp.2d 474 (E.D. Pa.
burden is on the defendants to establish fraudulent joinder.
Wilson v. Republic Iron & Steel Co., 257 U.S.
92, 97 (1921). While we “must resolve all contested
issues of substantive fact in favor of plaintiff, ” we
do not take this to mean we must blindly accept whatever
plaintiffs must say no matter how incredible or how contrary
to the overwhelming weight of the evidence. Boyer v.
Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).
We are also cognizant that the removal statute must be
construed narrowly, and “all doubts should be resolved
in favor of remand.” Steel Valley Auth. v. Union
Switch and Signal Div., 809 F.2d 1006, 1010, (3d Cir.
1987). Nonetheless, we are mindful of the Supreme Court's
decision in Wilson. The Court held that if a
defendant asserts in its removal papers that joinder of
another defendant was a sham to defeat removal, the District
Court must determine the facts on this issue.
Wilson, 257 U.S. at 98.
Court of Appeals on at least three occasions has declared
that fraudulent joinder exists if “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. (Emphasis added).
Boyer, 913 F.2d at 111; In re Briscoe, 448
F.3d 201, 216 (3d Cir. 2006); Abels v. State Farm Fire
& Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985).
their Notices of Removal, defendants assert that plaintiffs
have no real intention in good faith to prosecute the actions
against Redfield. In support, defendants cite in their
Notices a court approved stipulation that had occurred in
Juday v. Merck Co., Inc, No. 16-1547 (E.D. Pa. filed
April 5, 2016), which had been filed in this court prior to
the present cases. Juday, like these other cases,
alleged personal injuries as a result of Merck's shingles
vaccine and named Redfield as a defendant. After defendants
filed a motion to dismiss Count VI of the Complaint in
Juday, the only count against her, the plaintiffs
and defendants entered into a stipulation dismissing with
prejudice “all claims asserted against defendant
Redfield.” The court approved the Stipulation on August
10, 2016. The claims in Juday against Redfield were
no different than the claims against her in these ten pending
cases. Significantly, the plaintiffs' attorney in
Juday was the same attorney representing all of the
their motions to remand, the plaintiffs are silent with
respect to the agreement in Juday to dismiss the
claims against Redfield. The attorneys for plaintiffs do not
say why they entered into a stipulation of dismissal in
Juday but not in the other cases. We note that in
Juday, which was initially filed in the federal
court, the presence of Redfield, a Pennsylvania citizen,
would not defeat this court's diversity jurisdiction
since the plaintiffs were citizens of Indiana. Thus, her
dismissal had no effect on federal subject matter
jurisdiction. In contrast, if plaintiffs' arguments
against fraudulent joinder and against removal of cases with
an in-state defendant are correct, her continued presence as
a defendant in these ten cases would require remand.
without question allege serious injuries and are seeking
significant damages. For example, according to her complaint,
plaintiff Jorja Bentley suffers “from injuries to her
right eye, elevated blood pressure, headaches and
dizziness” as well as “mental and emotional
distress.” Another complaint, that of Roy Hager,
alleges that he suffered “from post-herpetic neuralgia
and will continue to suffer nerve damage” as well as
“pain and suffering” and “mental
anguish.” The court can take judicial notice that Merck
billions of dollars in assets so that the need to sue and
secure judgments against Redfield has no apparent explanation
except as an effort to avoid diversity jurisdiction.
that the only reason plaintiffs have joined Redfield as a
defendant is to defeat this court's subject matter
jurisdiction and that they have no real intention in good
faith to prosecute these actions against her to judgment. We
reach this compelling finding in light of the stipulation of
dismissal of Redfield in Juday and the
plaintiffs' retention of Redfield in the other similar
cases where the same counsel represents all the plaintiffs.
Plaintiffs' attorney conceded this inconsistency at oral
argument and offered no explanation for it other than that
the dismissal of Redfield in Juday would not affect
this court's jurisdiction. He also stated candidly in
answer to a question from the court that plaintiffs have no
intention of pursuing judgments against Redfield in light of
the presence of Merck. In sum, defendants have met their heavy
burden to establish that the joinder of Redfield as a
defendant was a sham designed to defeat this court's
subject matter jurisdiction. See In re Diet Drugs Product
Liability Lit., 220 F.Supp.2d 414, 420-22 (E.D. Pa.
2002). Both the Supreme Court and our ...