Markham v. Ethicon, Inc.

434 F.Supp.3d 261

Nancy MARKHAM

v.ETHICON, INC., Johnson & Johnson

CIVIL ACTION NO. 19-5464

United States District Court, E.D. Pennsylvania.

Filed January 22, 2020

Esther Berezofsky, Motley Rice, LLC, Cherry Hill, NJ, Michael J. Quirk, Motley Rice LLC, Philadelphia, PA, for Nancy Markham.

Julie A. Callsen, Tucker Ellis LLP, Cleveland, OH, Melissa A. Merk, Molly Elizabeth Flynn, Drinker, Biddle & Reath LLP, Philadelphia, PA, for Ethicon, Inc., Johnson & Johnson.

MEMORANDUM RE: MOTION TO REMAND

Baylson, J.

I. Introduction

Was Falstaff a fraud? This historical, theoretical and perhaps unanswerable question may have some resonance in this case where Plaintiff alleges she was injured by a defective pelvic mesh device, and filed a Complaint in state court which Defendants removed.

Both Shakespeare, in the Merry Wives of Windsor , and Verdi, for whom Falstaff was his last opera, probably couldn't answer the question. The stories about Falstaff are well known and he would have barely, if at all, survived in the "Me Too" era. He was a fictional buffoon and legend in medieval England, much noted for his pursuit of women. In the Merry Wives of Windsor , Falstaff sent identical love letters to two women, Mistress Page and Mistress Ford, without disclosing that fact to either of them. However, their husbands found out, and set upon a famous and funny series of events. The opera version is very similar. Was Falstaff "fraudulent" in sending two women identical love letters? Later in the play, and also in the opera, Falstaff is summoned to witness an event in a forest and disguises himself by putting horns on to try to appear that he is an animal. No double entendre there. But was it "fraud?" Was it deceptive?

Should Plaintiff's motion to remand this case to the Philadelphia Court of Common Pleas be denied because Plaintiff (and/or her counsel) is guilty of what has become known as "fraudulent joinder"?

What does this have to do with Falstaff? Well, in Falstaff and in this case, the concept of fraud is fraught with complexity. Fraud requires some showing of deception.¹ Does analysis of removal require a finding of "fraud?" I conclude there was no "fraud" but removal was appropriate because the joinder was not "proper" for other reasons.

II. Procedural History

In this case, Plaintiff sued Ethicon and Johnson & Johnson in the Philadelphia Court of Common Pleas, and also added as a defendant Secant, Inc., which is a citizen of Pennsylvania. Neither Plaintiff nor her lawyer made any allegations that warrant a conclusion that they were fraudulent or deceptive.

Plaintiff Nancy Markham alleges she was injured by a defective pelvic mesh device. Of the Defendants, only Secant is a Pennsylvania citizen. While the case was still in state court, Secant was quickly dismissed from the case by filing a special motion to dismiss under the Biomedical Access Assurance Act (BAAA), 21 U.S.C. § 1601 et seq., which expressly preempts most state-law claims against "biomaterials supplier[s]," id. § 1603(c). Court of Common Pleas Judge Arnold New, who has been supervising pelvic mesh cases in the Philadelphia Court of Common Pleas for several years, also ordered Plaintiff to file an amended complaint not naming Secant, and Plaintiff did so.²

Following the filing of the Amended Complaint, Defendants removed the case to this Court. ECF 1.³

Plaintiff has sought remand, ECF 3, and filed supplemental authority, ECF 6. Defendants responded. ECF 10. Plaintiff filed a reply brief. ECF 11. Defendants assert that the case is removable because Secant was "fraudulently joined." Plaintiff denies fraudulent joinder. The briefing of the parties debates this situation.⁴

Plaintiff argues that Secant's inclusion in the original complaint bars removal, because under 28 U.S.C. § 1441, diversity actions "may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."⁵ See Markham Mot. Remand Mem. (ECF 3-1) at 7 (quoting 28 U.S.C. § 1441 ). Plaintiff argues that because there is no controlling authority governing the BAAA's application to Secant's role in pelvic mesh manufacturing, her claims against Secant were not frivolous, and Secant was "properly joined."

Defendants generally respond that removal was appropriate because Secant was "fraudulently joined" to defeat removal. Defendants contend that Plaintiff knew that Secant would win its BAAA special motion to dismiss, because Secant has universally won such motions, both in federal multi-district litigation and Pennsylvania mass-tort litigation, and in the recent wave of similar lawsuits filed by Plaintiff's counsel.

For the reasons that follow, I conclude Secant was not properly joined, but I need not, and shall not, consider the concept of "fraudulent joinder."

III. Legal Standard

Subject to limited exceptions, a plaintiff is entitled to choose between filing her suit in either federal or state court, as federal and state courts generally enjoy concurrent jurisdiction. See Claflin v. Houseman, 93 U.S. 130, 136, 23 L.Ed. 833 (1876) ("[I]f exclusive [federal court] jurisdiction [is] neither express nor implied, the State courts have concurrent jurisdiction."). However, a defendant may, at its option, remove an action originally filed in state court to federal court if the federal court would have had original jurisdiction over the litigation. 28 U.S.C. § 1441(a). There are two types of subject matter jurisdiction that may confer original jurisdiction: jurisdiction based on diversity of citizenship; and jurisdiction based on a federal question raised in the case.⁶ Diversity jurisdiction exists where "the matter in controversy exceeds ... $75,000, exclusive of interest and costs, and is between citizens of different States." 28 U.S.C. 1332(a)(1). Removal statutes should be "strictly construed against removal and all doubts should be resolved in favor of remand." In re Briscoe, 448 F.3d 201, 217 (3d Cir. 2006). The party who "urges jurisdiction on a federal court"—in the case of removal, the removing defendant—"bears the burden of proving that jurisdiction exists." Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).

IV. Discussion

A. Fraudulent Joinder, Generally

If "fraudulent joinder" is an accurate description of the pleadings in a particular case, it is true that "fraudulent joinder" is rarely found. "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." Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983) ). Moreover, "all doubts should be resolved in favor of remand." A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 208 (3d Cir. 2014) (quoting Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) ).

Judges have experienced true cases of "fraudulent joinder," such as when the plaintiff alleges a defendant is a "citizen" of Pennsylvania when that allegation is false. Cf. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) ("[T]here is no suggestion by defendants that plaintiffs have falsely alleged their Pennsylvania citizenship or that of [the nondiverse defendants] [so] this is not a situation where ‘there has been outright fraud in the plaintiff's pleadings of jurisdictional facts.’ "). However, we must use caution in applying the concept of "fraudulent joinder." Although the phrase has been used by many district courts, it is not necessary to find "fraud" to justify removal. Indeed, for anyone interested in textual supremacy, the text of the statute does not use the term "fraudulent joinder," but rather simply states that a case may not be removed if any of the parties in interest "properly joined and served" is a citizen of a state in which such action is brought.

Thus, the text provides that if a defendant has not been "properly joined" in the case, then removal is allowed. There is a big gap of facts and law between the concept of a defendant who is not "properly joined" and a defendant who is "fraudulently joined."

B. Historical Basis of Fraudulent Joinder

The term "fraudulent joinder" appears to have originated in a series of Supreme Court decisions dating back to the early 20th century. See, e.g., Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921) ; Great N. Ry. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713 (1918) ; Ill. Cent. R.R. Co. of State of Ill. v. Sheegog, 215 U.S. 308, 30 S.Ct. 101, 54 L.Ed. 208 (1909) ; Alabama Great S. Ry. Co. v. Thompson, 200 U.S. 206, 26 S.Ct. 161, 50 L.Ed. 441 (1906).

In an early case on fraudulent joinder, the Supreme Court concluded that where a plaintiff sues diverse and nondiverse defendants on a tort that gives rise to joint and several liability, there is "nothing ... which suggests an attempt to commit a fraud upon the jurisdiction of the Federal courts." Alabama Great, 200 U.S. at 218, 26 S.Ct. 161. Similarly, in Illinois Central the Supreme Court held that "[t]he joint liability arising from the fault of the [diverse defendant] gave the plaintiff an absolute option to sue both [the diverse and nondiverse defendants] if he preferred, and no motive could make his choice a fraud." 215 U.S. at 318, 30 S.Ct. 101 (emphasis added).

In Wilson, the question presented, which related to the jurisdiction of the district court, was "[w]hether a [d]istrict [c]ourt, into which a case has been removed from a state court, may retain the same and proceed to its adjudication, or must remand it to the court whence it came, is a jurisdictional question the decision of which, where the jurisdiction is sustained, may be reviewed under [a statute since amended]." 257 U.S. at 96, 42 S.Ct. 35. The essence of the removal question arose because the defendant asserted...