Portnoff v. Janssen Pharmaceuticals, Inc.

237 F. Supp. 3d 253, 2017 WL 708745, 2017 U.S. Dist. LEXIS 24390
CourtDistrict Court, E.D. Pennsylvania
DecidedFebruary 22, 2017
DocketCIVIL ACTION No. 16-5955
StatusPublished
Cited by1 cases

This text of 237 F. Supp. 3d 253 (Portnoff v. Janssen Pharmaceuticals, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Portnoff v. Janssen Pharmaceuticals, Inc., 237 F. Supp. 3d 253, 2017 WL 708745, 2017 U.S. Dist. LEXIS 24390 (E.D. Pa. 2017).

Opinion

Memorandum Opinion

Goldberg, Judge.

One hundred and six (106) separate lawsuits were filed in the Court of Common Pleas of Philadelphia County alleging injuries sustained as a result of ingesting Invo-kana, a prescription drug used to treat Type 2 Diabetes. Plaintiffs-describe a variety of ailments, including kidney failure and diabetic ketoacidosis. .

Six separate law firms' representing the plaintiffs in a number of these actions filed a “Petition to Consolidate and for Mass Tort Designation” in the Philadelphia County Court of Common Pleas.1 The ini[256]*256tial consolidation petition was filed on September ,23, 2016, but was later withdrawn on October 11, 2016. On the same day, a second, petition was filed. Relying on the second petition, Defendants removed all 106 cases to the United States District Court for the Eastern District of Pennsylvania, asserting-federal jurisdiction as a mass action pursuant to the Class Action Fairness Act (“CAFA”). See 28 U.S.C., § 1332(d)(ll).

Plaintiff contests removal and has filed a motion to remand arguing that ■ Defendants’ attempt to remove those cases was untimely, and also that this Court lacks jurisdiction under CAFA.2 For .the reasons that follow, Plaintiffs motion will be denied, and I will maintain jurisdiction over these cases,

I. LEGAL STANDARDS

“A defendant máy remove a case in ‘any civil action brought in a State court of which the district’ courts of the United States have original jurisdiction!)]’ ” Portillo v. Nat’l Freight, Inc., 169 F.Supp.3d 585, 592 (D.N.J. 2016) (quoting 28 U.S.C. § 1441(a)). CAFA confers on federal district courts original jurisdiction over “mass actions,” which are defined as “any civil action ... in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact[.]” Mississippi ex rel. Hood v. AU Optronics. Corp., — U.S. -, 134 S.Ct. 736, 739, 187 L.Ed.2d 654 (2014) (quoting 28 U.S.C. § 1332(d)(11)(B)(ii)).

To remove a “mass action” under CAFA, four jurisdictional requirements must be met: (1) there must be 100 or more plaintiffs; (2) whose claims are proposed to be tried jointly on the ground that the claims .involve common questions of law or fact; (3) minimum diversity; and (4) the amount in controversy must exceed $5,000,000, as aggregated across all individual claims. 28 U.S.C. § 1332(d)(2)(A), (d)(ll)(B)(i); Hood ex rel. Mississippi v. JP Morgan Chase & Co., 737 F.3d 78, 85 (5th Cir. 2013).3

“CAFA does not change the traditional rule that the party seeking to remove the case to federal court bears the burden of establishing federal jurisdiction.” Lowery v. Alabama Power Co., 483 F.3d 1184, 1208 (11th Cir. 2007) (quoting Evans v. Walter Indus., Inc., 449 F.3d 1159, 1164 (11th Cir. 2006)). However, while “removal statutes must generally be strictly construed, with any doubt to be resolved in favor of remand, the presumption against removal does not apply to [257]*257class actions invoking jurisdiction under [CAFA].” Gallagher v. Johnson & Johnson Consumer Companies, Inc., 169 F.Supp.3d 598, 602 (D.N.J. 2016). “Congress enacted CAFA to facilitate class actions in federal court, and its provisions should be read broadly, with a strong preference that interstate class actions should be heard in a federal court if properly removed by any defendant.” Id. at 602 (citing Dart Cherokee Basin Operating Co., LLC v. Owens, - U.S. -, 135 S.Ct. 547, 554, 190 L.Ed.2d 495 (2014)) (internal quotations omitted).

In ascertaining the removability of a mass action under CAFA, 28 U.S.C. § 1332(d)(ll)(A) states that “[f]or purposes of this subsection and section 1453, a mass action shall be deemed to be a class action[,]” The United States Court of Appeals for the Third Circuit has thus recognized that the plain text of § 1332(d)(ll)(A) makes clear that a mass action is considered a “class action” for purposes of CAFA’s removal provisions. Abraham v. St. Croix Renaissance Grp., L.L.L.P, 719 F.3d 270, 275 (3d Cir. 2013).

Section 1453(b) states in relevant part that a “class action may be removed to a district court of the United States in accordance with section 1446[.]” 28 U.S.C. § 1453(b). Where an initial pleading does not allege sufficient facts supporting removal under § 1446(b)(1), § 1446(b)(3) dictates that “a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has ■ become removable.” • 28 > U.S.C. § 1446(b)(3) (emphasis added). This provision is central to the dispute before mé. “As with jurisdiction, the defendant bears the burden of showing the timeliness of removal.” Mims v. 84 Lumber Co., 2013 WL 4775306, at *2 (D. Del. Sept. 6, 2013).

II. ANALYSIS

Plaintiff argues that this ease should be remanded because Defendants did-not pursue removal within the thirty-day time limit, and also because this Court lacks jurisdiction over the 106 removed cases under CAFA’s mass action provision. The timeliness issue is addressed first.

A. Timeliness

i. The Parties’ Positions

Plaintiff argues that Defendants .could have “first ascertained” that this .matter was removable under CAFA when the initial “Petition to Consolidate and for Mass Toft Designation” (the “Initial Petition”) was filed in the Philadelphia Court of Common Pleas oh September 23, 2016. Plaintiff urges that the Initial Petition constituted an “other paper” under § 1446(b)(3) that set forth the basis for federal jurisdiction.4 As Defendants did not remove this case until November 9, 2016— more than 30 days after the filing of the Initial Petition, Plaintiff asserts that removal was untimely. Plaintiff explains that although the Initial Petition outlined 87 pending cases, it included claims for over 100 Plaintiffs, providing sufficient notice of removability, and therefore, the thirty-day removal clock “started to tick” on September 23, 2016. (Pl.’s Mot. to Remand 3-5; Initial Pet., Ex. 1.)

[258]*258Plaintiff further stresses that the October 11, 2016 Petition to Consolidate and for Mass Tort Designation (the “Second Petition”)—the document which ■ Defendants relied upon as - the basis for removal—was merely a-“refiled version” of the Initial Petition.

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Bluebook (online)
237 F. Supp. 3d 253, 2017 WL 708745, 2017 U.S. Dist. LEXIS 24390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/portnoff-v-janssen-pharmaceuticals-inc-paed-2017.