DAVIS et al v. BRISTOL-MYERS SQUIBB COMPANY et al

Filing 9

OPINION. Signed by Judge Freda L. Wolfson on 6/19/2013. (gxh)

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
LINDA DAVIS and LONNIE D. DAVIS, :
her husband,
:
:
Plaintiffs,
:
Civil Action No.: 13-1742 (FLW)
:
v.
:
:
BRISTOL-MYERS SQUIBB CO., et al.,
:
OPINION
:
Defendants
:
____________________________________:
ELWOOD TAYLOR, JR and SANDRA
:
TAYLOR, his wife,
:
:
Plaintiffs,
:
Civil Action No.: 13-1743 (FLW)
:
v.
:
:
BRISTOL-MYERS SQUIBB CO., et al.,
:
:
Defendants.
:
____________________________________:
WOLFSON, United States District Judge:
In these removed actions, Plaintiffs, Linda and Lonnie D. Davis, and Elwood Jr.
and Sandra Taylor (collectively “Plaintiffs”), move separately to remand their respective
case to the Superior Court of New Jersey, Law Division, Atlantic County. As the basis
for remand, Plaintiffs posit that the Complaints before this Court are merely amended
complaints, which do not qualify as initial pleadings under the removal statute. In
response, Defendant Bristol-Myers Squibb Company (“BMS” or “Defendant”) maintains
that the removal of the instant Complaints was proper because these Complaints were
newly filed before the State Court’s Clerk’s Office, and as a result, they had the effect of

commencing new civil actions. Based on the parties’ respective positions, the issue
before this Court is whether the removed-Complaints are initial pleadings for the
purposes of 28 U.S.C. § 1331. For the reasons stated herein, the Court answers in the
affirmative, and therefore, denies the Plaintiffs’ motions for remand.
BACKGROUND FACTS and PROCEDUREAL HISTORY
In a series of opinions, this Court has had more than one occasion to recount,
extensively, the facts of this case. I will not belabor them here. Briefly, plaintiffs, both
in this Court and in state court, have brought suits against BMS alleging physical and
emotional injuries because of exposure to toxic and hazardous environmental
contamination at a property owned by BMS in New Brunswick, New Jersey (“Site”).
See, e.g., Harris v. Bristol-Meyers Squibb Co., No. 11-6004, 2012 WL 1243260, at *1
(D.N.J. Apr. 12, 2012). With respect to the cases filed in state court, on October 6, 2008,
the Supreme Court of New Jersey centralized all pending and future cases that allege
injuries arising from the Site as a Mass Tort Action. See Supreme Court Order dated
October 6, 2008. Those centralized cases were assigned to the Honorable Carol E.
Higbee, Presiding Judge, at the Superior Court of New Jersey, Atlantic County. Id. On
October 17, 2008, Judge Higbee executed a Case Management Order No. 1 (“CMO”),
which instructed the parties that each complaint filed by any plaintiff is limited to a single
plaintiff or a related household of plaintiffs. See CMO dated October 17, 2008, p.2.
Despite the CMO, on June 10, 2011, a group of 106 plaintiffs, which includes
Plaintiffs in this case, filed their first consolidated complaint in the Mass Tort Action
exclusively asserting claims for medical monitoring and property damage (the “Group
Monitoring Complaint”). See Group Monitoring Complaint, ¶¶ 3-4. That complaint

averred that BMS tortiously discharged contaminants into the surrounding area of the
Site, which exposed plaintiffs to carcinogenic and toxic substances significantly greater
than the normal exposure for the general population. See Id. at ¶ 14. These plaintiffs
further averred that BMS substantially increased their risks of contracting serious and/or
deadly diseases. See Id. at ¶ 24. Therefore, the plaintiffs demanded that BMS fund a
medical monitoring program to pay for medical examinations, diagnostic tests and related
costs. See Id. at ¶¶ 38-39.
When the Group Monitoring Complaint was filed in the State Court Clerk’s
Office, a procedural issue arose as to the consolidated nature of the complaint. At that
time, Judge Higbee, in an informal conference, expressed a preference for these plaintiffs
to file individual complaints; however, she ultimately instructed the Clerk’s Office to
receive the Group Monitoring Complaint for filing, and defer the matter for any later
rulings necessitated by this administrative decision.
Subsequent to the filing of the Group Monitoring Complaint, Plaintiffs, here,
allegedly manifested actual illnesses stemming from their toxic exposures at the Site. See
Davis’ Compl., ¶ 4; Taylor Compl., ¶ 4. As a result, Plaintiffs sought to assert these new
claims in the Mass Tort Action. Having consulted with Judge Higbee as to the preferred
method to assert those additional claims, Plaintiffs decided, and Judge Higbee agreed,
that Plaintiffs file new Complaints under new docket numbers for administrative ease.
Importantly, however, rather than incorporating the Group Monitoring Complaint in the
instant Complaints, Plaintiffs expressly incorporated the Third Amended Master
Complaint, which includes the personal injury claims for those state plaintiffs who have
allegedly developed illnesses stemming from the toxic exposure. See Davis’ Compl., ¶ 3;

Taylor Compl., ¶ 3 (“Plaintiffs adopt and incorporate herein by reference as if fully
restated the document attached hereto entitled ‘Third Amended Master Complaint’”).
Thereafter, on March 21, 2013, Defendant removed Plaintiffs’ cases to this Court.
In support of their removal petition, Defendant construes Plaintiffs’ filing of the
Complaints as new civil actions independent and separate from the Group Monitoring
Complaint. In the instant matters, Plaintiffs move for remand based on the position that
the removed-Complaints are not initial pleadings, but rather are merely amendments to
the Group Monitoring Complaint as to Mr. and Mrs. Davis and Mr. and Mrs. Taylor.
DISCUSSION
Under 28 U.S.C. § 1441, “[A]ny civil action brought in State court of which the
district courts of the Untied States have original jurisdiction, may be removed by the
defendant or defendants to the district court.” Federal court jurisdiction may be based on
federal question or diversity of citizenship grounds. 28 U.S.C. § 1331 (federal question);
and, 28 U.S.C. § 1332 (diversity). In determining whether to remove a matter to federal
court, the defendant “bears the burden of demonstrating jurisdiction.” Horizon Blue
Cross Blue Shield of New Jersey v. East Brunswick Surgery Center, 623 F. Supp. 2d 568,
572 (D.N.J. 2009). In the Third Circuit, it is well settled that removal statutes “are to be
strictly construed against removal and all doubts must be resolved in favor of remand.”
American Asset Finance, LLC v. Corea Firm, 821 F. Supp. 2d 698, 699 (D.N.J. 2011)
(citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)).
In the instant matters, BMS contends that removal was proper because Federal
and New Jersey court rules dictate that when Plaintiffs filed their Complaints with the
state court, new civil actions had commenced. BMS reasons that the Clerk’s Office

assigned docket numbers to those new Complaints, and that Defendant was served with
the new Complaints, as well as a Civil Case Information Statement. BMS submits that
nothing in the instant Complaints suggests that they are amended complaints to the Group
Monitoring Complaint. Instead, BMS posits that Plaintiffs’ position on theses motions to
remand is one taken after the fact to defeat removal. In response, Plaintiffs insist that the
instant Complaints serve only to amend their Group Monitoring Complaint, and to find
otherwise would exalt form over substance. The Court’s task, in light of the parties’
respective positions, is to decide whether Plaintiffs’ Complaints should be considered as
initial pleadings under the Removal statute, or whether they should be interpreted as
amendments to the Group Monitoring Complaint in the Mass Tort Action. The Court
finds the former to be true.
Indeed, in addition to the fact that Plaintiffs complied with all the procedural court
rules with regard to filing new actions, the instant Complaints are deemed separate and
distinct from the initial Group Monitoring Complaint. Notably, paragraph 3 of the instant
Complaints expressly adopt and incorporate the “Third Amended Master Complaint.” As
the Court has noted earlier, the state plaintiffs who have developed personal injuries,
allegedly as a result of the toxic exposure, filed individual pleadings, and as a group they
referred to, and relied on, the Third Amended Master Complaint in the Mass Tort Action.
The Third Amended Master Complaint not only includes monitoring claims, but also
additional claims related to personal injuries. Plaintiffs asserted their new claims in a
manner indistinguishable from those plaintiffs who have already suffered injuries. By
doing so, Plaintiffs brought new causes of actions against Defendant based on different,

and indeed, distinct legal theories from those asserted in the Group Monitoring
Complaint; as a result, the filing of the instant Complaints initiated new civil actions.
Equally compelling, Counsel’s Rule 4:5-1 Certification confirms this Court’s
interpretation; Plaintiffs’ counsel represented that “there are no other parties known who
should be joined in this action and there are no other proceedings with respect to the
controversy in this action or in any of the aforesaid related actions filed or to be filed that
are pending in this Court, in any other Court of this State or in Federal Court.” Counsel’s
Rule 4:5-1 Certification dated February 22, 2013. Critically, counsel did not reference
Plaintiffs’ original action initiated by the Group Monitoring Complaint; this
representation further indicates that the instant Complaints are separate from that
complaint.
Accordingly, the Court finds that the instant Complaints filed by Plaintiffs in state
court are initial pleadings for the purposes of the removal statute, and therefore, removal
was appropriate. Plaintiffs’ motions for remand are DENIED.

DATED: June 19, 2013

/s
Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.