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Kleiner v. Rite Aid Corp.

United States District Court, E.D. Pennsylvania

October 16, 2017

ELLEN KLEINER AND YURI KLEINER, Plaintiffs,
v.
RITE AID CORPORATION et al., Defendants.

          MEMORANDUM

          GENE E.K. PRATTER, United States District Judge

         I. Introduction

         Ellen and Yury Kleiner brought this case in state court against five corporate defendants: Johnson & Johnson; Johnson & Johnson Consumer Companies, Inc.; Imerys Talc America, Inc.; Rite Aid Corporation; and Right Aid of Pennsylvania, Inc. The Kleiners allege that, for 35 years, Mrs. Kleiner bought, from Rite Aid locations in and around Philadelphia, J&J hygiene products manufactured by J&J using talc mined by Imerys. In 2011, she was diagnosed with ovarian cancer, allegedly caused by carcinogenic compounds in these products. She brings claims based on several theories, including strict liability failure to warn, strict liability design and manufacturing defects, negligence, and violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. Mr. Kleiner makes a derivative claim for loss of consortium.[1]

         The Johnson & Johnson Defendants removed the case to this Court. Although the Kleiners and the Rite Aid Defendants are all Pennsylvania citizens, Johnson & Johnson argued that the Rite Aid Defendants were fraudulently joined and that, without them as parties, complete diversity exists. The Kleiners have filed a Motion to Remand. Because the Court concludes that the Rite Aid Defendants were not fraudulently joined, the Motion to Remand is granted.

         II. Legal Standard

         Defendants in a civil case in state court may remove the case to federal court as long as the federal court would have original jurisdiction over the case. See 28 U.S.C. § 1441(a). "The 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 & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)) (additional citations omitted). There is no different principle to be applied in cases where MDL status may be at issue.

         Under 28 U.S.C. § 1332, a federal court has diversity jurisdiction only if all plaintiffs are diverse from all defendants. The doctrine of fraudulent joinder, an exception to this complete diversity requirement, allows a defendant to remove an action if a non-diverse defendant was fraudulently joined solely to defeat diversity jurisdiction. Brown v. Jevic, 575 F.3d 322, 326 (3d Cir. 2009). If the non-diverse defendant was fraudulently joined, the court may disregard the citizenship of the non-diverse defendant for the purpose of determining diversity of citizenship. In re Briscoe, 448 F.3d 201, 216 (3d Cir.2006)). If the court determines that joinder was not fraudulent, it must remand. Id. at 216.

         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, 913 F.2d at 111 (quotations omitted). "The presence of a party fraudulently joined cannot defeat removal." In re Diet Drugs, 220 F.Supp.2d 414, 419 (E.D. Pa. 2002).

         The Third Circuit Court of Appeals set forth the standards applicable to fraudulent joinder analysis as follows:

When a non-diverse party has been joined as a defendant, then in the absence of a substantial federal question the removing defendant may avoid remand only by demonstrating that the non-diverse party was fraudulently joined. But the removing party carries a heavy burden of persuasion in making this showing. It is logical that it should have this burden, for removal statutes are to be strictly construed in favor of remand.
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 defendants or seek a joint judgment. But, if there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court.

Batoff v. State Farm Insurance Co., 977 F.2d 848, 851-52 (3d Cir. 1992) (citations and punctuation omitted); see also Briscoe, 448 F.3d at 217.

         III. Discussion

         The J&J Defendants oppose the Kleiners' Motion to Remand for four reasons: (1) the Rite Aid Defendants merely sold, rather than manufactured or designed, the products; (2) the Kleiners have not alleged how the products caused Mrs. Kleiner's cancer; (3) the Kleiners' allegation that J&J hid information about the products' harmfulness contradicts their allegation that Rite Aid was aware of the danger; and (4) Rite Aid ...


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