415 F.Supp.3d 588 (E.D.Pa. 2019), C. A. 19-2440, Brown v. Rite Aid Corp.

Docket Nº:Civil Action No. 19-2440
Citation:415 F.Supp.3d 588
Opinion Judge:Rufe, District Judge.
Party Name:Kevin BROWN, et al., Plaintiffs, v. RITE AID CORPORATION, et al., Defendants.
Attorney:Michael S. Katz, Lopez McHugh LLP, Moorestown, NJ, Charles S. Siegel, Waters & Kraus LLP, Dallas, TX, for Plaintiff. Gregory J. Mann, Donnelly and Associates, Blue Bell, PA, for Defendant.
Case Date:December 05, 2019
Court:United States District Courts, 3th Circuit, Western District of Pennsylvania

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415 F.Supp.3d 588 (E.D.Pa. 2019)

Kevin BROWN, et al., Plaintiffs,


RITE AID CORPORATION, et al., Defendants.

Civil Action No. 19-2440

United States District Court, E.D. Pennsylvania

December 5, 2019

Field: December 6, 2019

Page 589

[Copyrighted Material Omitted]

Page 590

Michael S. Katz, Lopez McHugh LLP, Moorestown, NJ, Charles S. Siegel, Waters & Kraus LLP, Dallas, TX, for Plaintiff.

Gregory J. Mann, Donnelly and Associates, Blue Bell, PA, for Defendant.


Rufe, District Judge.

Plaintiffs, Kevin and Erika Brown, have moved to remand this case to the Court of Common Pleas of Philadelphia County, Pennsylvania. Because the removal of the action to this Court was procedurally and substantively improper, the motion will be granted.


The Court will recount the procedural history of the litigation in some detail, as it is relevant to the motion to remand. This is the second suit Plaintiffs have filed alleging that Mr. Brown, a barber, developed bladder cancer from working with hair dyes containing aromatic amines. Plaintiffs first sued Rite Aid Corporation, Rite Aid of Pennsylvania, Inc., Hoyu America Co., Ltd., Sally Beauty Company, Inc., and Combe Incorporated in state court, which Combe then timely removed to this Court, asserting diversity of citizenship (Plaintiffs reside in Georgia; none of the Defendants do).[1] Although the Rite Aid Defendants are citizens of Pennsylvania and therefore could not consent to removal predicated on diversity under the forum defendant rule,2 Combe effected removal before these Defendants had been served. After removal, Plaintiffs voluntarily dismissed the first case without prejudice.

In October 2018, Plaintiffs filed a new action in state court only against the Rite

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Aid Defendants, who filed a third-party complaint against the other Defendants two months later.3 In January 2019, Plaintiffs amended their complaint to name all Defendants. Plaintiffs continued to assert claims under state law and allege, as they had all along, that the hair dye caused Mr. Brown’s cancer and that Defendants failed to warn of the dangers. Discovery proceeded in state court and upon receipt of interrogatories served by Plaintiffs on May 6, 2019, that sought the chemical composition of certain hair dyes and information about warning labels, Combe filed a notice of removal on June 5, 2019. The Notice of Removal stated that the "discovery request seeks information in contravention of and exceeding the scope of the federal regulations of the Food and Drug Administration ("FDA").4 On July 2, 2019, Combe filed a "Supplemental Notice of Removal," asserting that the ingredients and formulation of the hair dyes are trade secrets protected by patents.5 On August 1, 2019, the same day Plaintiffs filed the motion to remand, Hoyu, Sally Beauty, and the Rite Aid Defendants filed consents to removal.6


A. Removal

A defendant may only remove a civil action from state to federal court if the initial action could have been brought in federal court.7 "[R]emoval statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand."8 A proper notice of removal must be filed within 30 days of service of the initial complaint or, if the initial pleading is not removable, within 30 days "after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper."9 Unless otherwise authorized by statute, "[t]his 30-day time limitation is mandatory and cannot be extended by the court."10 Additionally, a party may not raise a new and independent ground for removal after the 30-day time limit expires.11 "Once an action is removed, a plaintiff may challenge removal by moving to remand the case back to state court."12

Defendants seeking removal must properly join a notice of removal, or else the removal is rendered procedurally defective. Proper removal occurs when all defendants communicate unanimous consent to the removal by way of jointly filing a notice of removal or filing separate notices of removal to the court.13 Each separate notice of removal must be made "clearly" and "unambiguously."14 Unanimous consent of all defendants cannot

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come from just one defendant, as "one defendant may not speak for another in filing a notice of removal."15

B. Federal Question Jurisdiction

A case that is removed on the basis of federal question jurisdiction must arise under federal law. When no federal claims are asserted by the plaintiff, the case still may arise under federal law in "a special and small category of cases," if the "state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities."[16] All of these factors must be met, as "the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction."17

Removal of a dispute to federal court also may be appropriate if a federal cause of action completely preempts the state cause of action.18 The preemption doctrine applies 1) "when the enforcement provisions of a federal statute create a federal cause of action vindicating the same interest that the plaintiff’s cause of action seeks to vindicate," or 2) when congressional intent permits "removal despite the plaintiff’s exclusive reliance on state law."19 Even with the presence of a federal statute in a state claim, "state courts have inherent authority [ ] and are [ ] presumptively competent [ ] to adjudicate claims arising under the laws of the United States."20


A. The Initial Notice of Removal

Plaintiffs propounded an interrogatory requesting that Combe "[l]ist each chemical constituent by year or formulation, whether an intended ingredient or not, contained in Just For Men - Jet Black hair dyes for the years 1994 to 2008."21 The Notice of Removal asserts that because FDA regulations do not require the declaration of incidental ingredients,22 the discovery requests constituted an "other paper" first raising a basis for federal question jurisdiction that triggered a 30-day window for Combe to file a timely notice of removal.

1. Timeliness of Removal


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