Photo of Rachel B. Weil

We just returned from four days of depositions in Roswell and Carlsbad, New Mexico. We were pleased to cross this state off of the “not yet visited” list on our bulletin board. But it seems that we found the least picturesque cities in the entire state. At this time of year, the 75-mile drive from Carlsbad to Roswell is entirely beige and barren.   No foliage, except for scrub brush. No buildings. No slopes. That is why the “Welcome to Roswell” mural on the side of Highway 285 was an especially delightful surprise.   You can see it and read about it here.   Not so delightful, on the other hand, was the Roswell waitress who told us that we “look good for our age.” Made us think, half-seriously, about wrinkle removal.

Which brings us to today’s pair of cases.   Allow us to explain. Four or five mass torts ago, we were in the early stages of a mass tort and were trying to remove as many state court cases as we could.   Because we represented a forum defendant, we did this by removing a case when we learned about the complaint but before we were officially served. We called these “wrinkle removals,” because they capitalized on a “wrinkle” in the language of 28 U.S.C. § 1441(b)(2), which provides that a case cannot be removed on the basis of diversity if any “properly joined and served” defendant is a citizen of the forum state. In its 2018 decision in Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147 (3d Cir. 2018), the Third Circuit resolved a split of authority in favor of permitting such pre-service removals. Some of you may have learned about this removal technique from the Blog’s posts. You can read them here, including our Breaking News Post about the Encompass decision.

The first of today’s cases, Anderson v. Merck & Co., Inc., 2019 WL 161512 (D.N.J Jan. 10, 2019), involves 104 cases filed in New Jersey state court, alleging injuries caused by the defendant’s shingles vaccine. The defendant, a citizen of New Jersey, removed the cases to the District of New Jersey before it was officially served with the complaints. The plaintiffs moved to remand, and remand was denied pursuant to Encompass.  Stay tuned – more on this in a minute.

In the second case, Breitner v. Merck & Co., Inc., 2019 WL 316026 (D.N.J. Jan 2019), eighty-nine individual plaintiffs were joined in a single complaint again alleging injuries by the same defendant’s shingles vaccine. Five of the plaintiffs were New Jersey residents and the other eighty-four were not. Before the defendant was officially served, it removed the case on the basis of diversity jurisdiction, arguing that the five non-diverse plaintiffs were fraudulently misjoined. The court explained that “fraudulent misjoinder” occurs when a plaintiff “attempts to frustrate a defendant’s right to remove by joining a non-diverse party in violation of the applicable joinder rule.” Breitner, 2019 WL 316026 at *2 (citation omitted). The analysis is twofold:   the court first determines whether the plaintiffs’ claims were misjoined under Fed. R. Civ. P. 20, and, if so, whether the joinder was “egregious.”

In Breitner, the court answered both questions in the affirmative. First, it held that the claims were misjoined because, although all of the plaintiffs alleged that they were injured by the same drug, “the injuries manifested at different times, with each Plaintiff likely suffering different complications and different unknown recurring health issues.” Id. at *4. In addition, there was no allegation that all of the plaintiffs received vaccinations “from the same lot number, at the same time, [or] by the same health care providers.” Id. Second, the court held that the misjoinder was “egregious” because the complaint was structured specifically to defeat diversity jurisdiction. The court severed the claims of the five non-diverse plaintiffs and remanded them back to state court. That left eighty-four plaintiffs and complete diversity but left the question of the forum defendant rule for the court to resolve. Citing Anderson, the court held that removal was proper because the defendant, though a citizen of New Jersey, removed the case before service was effected. Remand denied. As we continue to struggle to keep mass tort cases in federal court, we like both layers of this decision, and we will keep you posted on similar cases. Meanwhile, we hear Santa Fe and Taos are pretty, and we are angling for depositions there.