We posted (and again here) earlier this week about the New Jersey federal trial court decision in Thomson v. Novartis, which permitted defendants to remove seemingly non-removable diversity cases, so long as the cases were removed before plaintiff effected service on the in-state defendants.
We saw room for mischief there. (Indeed, folks on the other side of the “v.” might say that we encouraged mischief there.)
Under New Jersey state procedure, a plaintiff cannot serve a complaint until the state court assigns a docket number and Track Assignment Notice (“TAN”) to a case. Defendants can subscribe to a service that provides the docket number before the court has assigned a TAN. Defendants can thus remove a case before plaintiff has any possible chance to effect service on any defendant, in-state or otherwise.
The defendants in the Accutane litigation were doing just that. As soon as they received a docket number, they removed each case, thus using Thomson to side-step the prohibition on removing cases in which an in-state defendant has been properly joined and served.
Judge Higbee, who oversees the Accutane state court mass tort proceeding was, shall we say, not amused.
She has sua sponte entered an order relaxing the TAN rules to permit a plaintiff to serve a defendant as soon as the clerk assigns a docket number; there will be no need to wait for a TAN. This will prevent defendants from removing cases before the in-state defendants are served.
Judge Higbee says that she plans to raise this issue with the Administrative Office of the Courts and the proper committees of the Supreme Court of the State of New Jersey.
Here’s a link to the four-page order on this issue that Judge Higbee entered earlier today.