Moore et al v. Daiichi Sankyo, Inc. et al

Filing 26

OPINION . Signed by Judge Robert B. Kugler on 7/27/2016. (tf, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
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IN RE: BENICAR (OLMESARTAN)
PRODUCTS LIABILITY LITIGATION
-----------------------------MARY MOORE, et al.,
Plaintiffs,
v.
DAIICHI SANKYO, INC., et al.,

Master Docket No. 15-2606
Civ. No. 15-08823 (RBK/JS)
OPINION

Defendants.

Kugler, United States District Judge:
The matter before the Court is one action brought by 79 plaintiffs proceeding as
part of a multidistrict litigation (“MDL”) wherein it has been alleged that injuries and
damages resulted from the ingestion of pharmaceutical drugs developed and marketed by
Defendants. Currently pending is Plaintiffs’ Motion to Remand (“the Motion”). (Doc.
No. 13.) For the reasons that follow, the Motion will be granted in part and denied as
moot in part.

I.

BACKGROUND
Plaintiffs initiated this action on June 26, 2015 in the Circuit Court of the City of

St. Louis, Missouri. On July 28, 2015, Defendants removed the action to United States
District Court for the Eastern District of Missouri under 28 U.S.C. § 1441 and upon doing
so filed a Motion to Stay all proceedings pending potential transfer into this MDL. The
Motion to Stay was subsequently granted. On August 4, 2015, Plaintiffs moved to
remand to state court for lack of subject matter jurisdiction. (Doc. Nos. 13, 14.) In
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December of 2015, the Judicial Panel on Multidistrict Litigation issued an order
transferring the case from the Eastern District of Missouri to the District of New Jersey
pursuant to 28 U.S.C. § 1407. Following the transfer to this Court the stay was lifted.
Therefore, Plaintiffs’ Motion to Remand may now be properly considered.
Case Management Order (“CMO”) number 7 in this MDL dictates that “multiplaintiff complaints shall not be filed in this litigation without leave of the Court and for
good cause shown.” (Doc. No. 67 at 1 in Master Doc. 15-2606.) In the event that such a
complaint is filed, the Clerk of the Court is “directed to sever all existing multi-plaintiff
complaints.” (Id.) The order further provides that counsel representing Plaintiffs who
intend to pursue claims on an independent basis “shall serve a separate complaint and pay
a new filing fee for each severed complaint.” (Id.) The Court, however, has not required
the severance of derivative claims asserted by co-plaintiff spouses or children.

II.

LEGAL STANDARD
Under 28 U.S.C. § 1441, defendants may remove “any civil action brought in a

State court of which the district courts of the United States have original jurisdiction.” 28
U.S.C. § 1441. “The propriety of removal thus depends on whether the case originally
could have been filed in federal court.” City of Chicago v. Int'l Coll. of Surgeons, 522
U.S. 156, 161 (1997). A case that is removed to district court shall be remanded to state
court “[i]f at any time before final judgment it appears that the district court lacks subject
matter jurisdiction.” 28 U.S.C. § 1447(c). Where a complaint does not raise a question of
federal law, a district court may properly exercise subject matter jurisdiction only if the
amount in controversy exceeds the value of $75,000 and diversity exists among the
adverse parties. See 28 U.S.C. § 1332(a). The Supreme Court of the United States has
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long interpreted the general diversity statute to require complete diversity between
plaintiffs and defendants. See, e.g., Strawbridge v. Curtiss, 7 U.S. 267 (1806); Carden v.
Arkoma Associates, 494 U.S. 185 (1990); Lincoln Prop. Co. v. Roche, 546 U.S. 81
(2005). This requirement of complete diversity is understood to mean that no plaintiff can
be a citizen of the same state as any of the defendants at the time the complaint was filed
and at the time of removal. Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 346 (3d
Cir. 2013) (citing Grand Union Supermarkets of the Virgin Islands, Inc. v. H.E. Lockhart
Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003) (internal quotations omitted). For purposes
of diversity jurisdiction, “a corporation shall be deemed to be a citizen of every State and
foreign state by which it has been incorporated and of the State or foreign state where it
has its principal place of business.” 28 U.S.C. § 1332.

III.

DISCUSSION
Plaintiffs move to remand the action to state court on the grounds that the parties

lack complete diversity of citizenship and, therefore, federal subject matter jurisdiction is
lacking.
From the record, it appears that at the time of this action’s commencement
Defendant Daiichi Sankyo, Inc. was a Delaware Corporation with principal place of
business in New Jersey. (Doc. No. 1-1 at 18.) Defendant Daiichi Sankyo U.S. Holdings,
Inc. was a Delaware Corporation with principal place of business in New Jersey. (Id.)
Defendant Forest Laboratories, LLC was a Delaware LLC with principal place of
business in New Jersey. 1 (Id. at 20, 21.) Defendant Forest Pharmaceuticals, Inc. was a
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“The citizenship of an LLC is determined by the citizenship of its members.” Zambelli
Fireworks Mfg. Co. v. Wood, 592 F. 3d 412, 419 (3d Cir. 2010). No party has identified
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Delaware corporation with principal place of business in Missouri. (Id. at 21.) Defendant
Forest Research Institute, Inc. was a New Jersey corporation with principal place of
business in New Jersey. (Id.)
The following Plaintiffs maintain citizenship in the same state where one or more
Defendants are incorporated or have principal place of business:
Plaintiff

State

Plaintiff

State

Mary Moore

Missouri

Marianne Saputo

Missouri

Kenneth Wells

Missouri

James Hoffman

Missouri

Deborah Currie

Missouri

George Ritzie

Delaware

Iris Twelbeck

New Jersey

Paul Copenhaver

Missouri

Claudette Woodlen

Delaware

Judith Moebis

New Jersey

Cindy Adams

New Jersey

Geraldine Zanna

New Jersey

Eleanor Both

New Jersey

James Bittel

New Jersey

Barbara Cairoli

New Jersey

Gretchen Berenato

New Jersey

Von Duhart

New Jersey

Patricia Brown

Delaware

Carol Hirschen

New Jersey

Arlene Jacobsen

New Jersey

Darlene Justynski

New Jersey

Barrie White

New Jersey

Dimakis Kalogerakos

New Jersey

Scott Ortega

New Jersey

Zatiti Moody

New Jersey

Ralph Loree

New Jersey

Stephen Ratz

New Jersey

Joseph Garofolo

New Jersey

Joan Richardson

New Jersey

Lisa Dannunzio

New Jersey

Bedelia Sanchez

New Jersey

Lori Sickler

New Jersey

the members of Forest Laboratories, LLC. For the purposes of this Motion the Court
assumes that the citizenship of the LLC Defendant does not alter the disposition of the
Motion to Remand.

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Carmen Simmons

New Jersey

Rita Vandergrift

Marion Poyner

New Jersey

New Jersey

(Doc. No. 1-1 at 9-18)
Because each of the Plaintiffs named in the foregoing table is a citizen of the
same state in which one or more Defendants are incorporated or have principal place of
business, complete diversity among the parties is lacking and, therefore, the Court lacks
subject matter jurisdiction. See 28 U.S.C. § 1332(a). Accordingly, the Motion to Remand
will be granted in part with respect to those Plaintiffs who are listed in the table above.
As to all Plaintiffs who are not citizens of either New Jersey, Delaware or
Missouri, the issue of complete diversity of citizenship is mooted by virtue of the
management order requiring the severance of all existing multi-plaintiff complaints.
(Doc. No. 67 at 1 in Master Doc. 15-2606.) Plaintiffs who intend to pursue claims on an
individual basis must re-file independently within ten (10) days after the date of the
issuance of the Order accompanying this decision. 2
IV.

CONCLUSION
For the reasons stated above, Plaintiffs’ Motion to Remand will be granted in part

as to Plaintiffs who are citizens of New Jersey, Delaware, and Missouri, and denied as
moot with respect to all other Plaintiffs.
An accompanying Order will issue.

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The order requiring separate re-filing will not apply to complaints in which only one
individual alleges injury from Defendants’ product(s), but where other Plaintiffs such as
spouses or children assert derivative claims predicated on that injury. Plaintiffs’
complaint at ¶ 24 reflects that James Greer and Lorraine Greer joined in the action as coplaintiff spouses. (Doc. No. 1-1 at ¶ 24.)
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Date: July 27 , 2016

s/ Robert B. Kugler
ROBERT B. KUGLER, U.S.D.J.

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