Halliburton v. Johnson & Johnson & Ethicon, Inc.

• Decision Date: 18 October 2013
• Docket Number: No. CCIV–13–834–L.,No. CIV–13–841–L.,No. CIV–13–832–L.,No. CIV–13–844–L.,No. CIV–13–846–L.,No. CIV–13–838–L,No. CIV–13–839–L.,No. CCIV–13–840–L.,No. CIV–13–845–L.,No. CIV–13–833–L.,No. CIV–13–836–L.,CIV–13–832–L.,CIV–13–833–L.,CCIV–13–834–L.,CIV–13–836–L.,CIV–13–838–L,CIV–13–839–L.,CCIV–13–840–L.,CIV–13–841–L.,CIV–13–844–L.,CIV–13–845–L.,CIV–13–846–L.
• Citation: 983 F.Supp.2d 1355
• Parties: Joy L. HALLIBURTON, et al., Plaintiffs, v. JOHNSON & JOHNSON and Ethicon, Inc., Defendants. Kathleen Teague, et al., Plaintiffs, v. Johnson & Johnson and Ethicon, Inc., Defendants. Diana Wade, et al., Plaintiffs, v. Johnson & Johnson and Ethicon, Inc., Defendants. Kelli Gooch, et al., Plaintiffs, v. Johnson & Johnson and Ethicon, Inc., Defendants. Sarah Ruth Allbritton, et al., Plaintiffs, v. Johnson & Johnson and Ethicon, Inc., Defendants. Tammy McCaughtry, et al., Plaintiffs, v. Johnson & Johnson and Ethicon, Inc., Defendants. Inola Killsfirst, et al., Plaintiffs, v. Johnson & Johnson and Ethicon, Inc., Defendants. Michelle States, et al., Plaintiffs, v. Johnson & Johnson and Ethicon, Inc., Defendants. Ilarae J. Page, et al., Plaintiffs, v. Johnson & Johnson and Ethicon, Inc., Defendants. Teresa Marie Anderson, et al., Plaintiffs, v. Johnson & Johnson and Ethicon, Inc., Defendants. Valerie Spears, et al., Plaintiffs, v. Johnson & Johnson and Ethicon, Inc., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

983 F.Supp.2d 1355

Joy L. HALLIBURTON, et al., Plaintiffs,

v.JOHNSON & JOHNSON and Ethicon, Inc., Defendants.

Kathleen Teague, et al., Plaintiffs,

v.Johnson & Johnson and Ethicon, Inc., Defendants.

Diana Wade, et al., Plaintiffs,

v.Johnson & Johnson and Ethicon, Inc., Defendants.

Kelli Gooch, et al., Plaintiffs,

v.Johnson & Johnson and Ethicon, Inc., Defendants.

Sarah Ruth Allbritton, et al., Plaintiffs,

v.Johnson & Johnson and Ethicon, Inc., Defendants.

Tammy McCaughtry, et al., Plaintiffs,

v.Johnson & Johnson and Ethicon, Inc., Defendants.

Inola Killsfirst, et al., Plaintiffs,

v.Johnson & Johnson and Ethicon, Inc., Defendants.

Michelle States, et al., Plaintiffs,

v.Johnson & Johnson and Ethicon, Inc., Defendants.

Ilarae J. Page, et al., Plaintiffs,

v.Johnson & Johnson and Ethicon, Inc., Defendants.

Teresa Marie Anderson, et al., Plaintiffs,

v.Johnson & Johnson and Ethicon, Inc., Defendants.

Valerie Spears, et al., Plaintiffs,

v.Johnson & Johnson and Ethicon, Inc., Defendants.

Nos. CIV–13–832–L, CIV–13–833–L, CIV–13–834–L, CIV–13–836–L, CIV–13–838–L, CIV–13–839–L, CIV–13–840–L, CIV–13–841–L, CIV–13–844–L, CIV–13–845–L, CIV–13–846–L.

United States District Court, W.D. Oklahoma.

Oct. 18, 2013.

Matthew J. Sill, Timothy M. Bunson, Sill Law Group, Edmond, OK, for Plaintiffs.

Amy Sherry Fischer, Andrew M. Bowman, Larry D. Ottaway, Foliart Huff Ottaway & Bottom, Oklahoma City, OK, for Defendants.

ORDER

TIM LEONARD, District Judge.

On July 8, 2013, Joy L. Halliburton and 47 other named plaintiffs filed an action seeking damages in the District Court of Pottawatomie County, Oklahoma. Plaintiffs named as defendants Johnson & Johnson and Ethicon, Inc., two New Jersey companies who are engaged in the business of designing, manufacturing, and distributing pelvic mesh products.¹Halliburton v. Johnson & Johnson, Case No. CIV–13–832–L, Petition at ¶ 9 (Doc. No. 1–1). Plaintiffs assert state law claims of negligence, design defect, manufacturing defect, failure to warn, breach of implied warranty, breach of express warranty, deceit by concealment, negligent misrepresentation, fraud and deceit, violation of the Oklahoma Consumer Protection Act, and violation of the Oklahoma Deceptive Trade Practices Act. In addition, the five male plaintiffs assert a claim for loss of consortium. While Halliburton is a citizen of the State of Oklahoma, the remaining plaintiffs are citizens of twelve different states, including New Jersey.² Over the next two days, eleven other actions were filed against Johnson & Johnson and Ethicon, Inc. in the District Court of Pottawatomie County.³ Each action alleges the same eleven substantive claims against defendants and contains virtually identical allegations as those made in Halliburton. Likewise, each case has at least one Oklahoma plaintiff and one or more plaintiffs who are citizens of New Jersey.

Notwithstanding the lack of diversity shown on the face of the state court petitions, defendants removed all twelve cases to this court on August 8, 2013. In the Notice of Removal, defendants assert the court has diversity jurisdiction because “[c]omplete diversity of citizenship exists between the properly joined parties” ⁴ and the amount in controversy for each plaintiff exceeds $75,000. In the alternative, defendants claim the court has jurisdiction over these actions pursuant to the mass action provisions of the Class Action Fairness Act (“CAFA”). See28 U.S.C. § 1332(d)(11).

This matter is before the court on identical motions to remand filed by plaintiffs in eleven of the twelve lawsuits.⁵ Plaintiffs argue diversity jurisdiction does not exist because at least one plaintiff in each case is a citizen of New Jersey, as are defendants. Plaintiffs also contend CAFA does not confer jurisdiction because the statutory requirements for such jurisdiction have not been met. Defendants counter that the New Jersey plaintiffs should be disregarded because they were “fraudulently misjoined for the sole purpose of defeating diversity jurisdiction.” Defendants' Response in Opposition to Plaintiffs' Motion to Remand at 1 (Doc. No. 17) [hereafter cited as “Defendants' Response”].⁶ In the alternative, defendants argue the eleven cases should be viewed in the aggregate for purposes of CAFA's mass action provisions and that once the cases are aggregated, the number of plaintiffs exceeds the statute's 100 plaintiff minimum.

Analysis of the jurisdictional issue begins with the concept that federal courts are courts of limited jurisdiction and “there is a presumption against removal jurisdiction.” Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995). Defendants, as the parties seeking to invoke this court's jurisdiction, have the burden of establishing that the statutory requirements for such jurisdiction have been met. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir.2001). Diversity jurisdiction requires not only that the amount in controversy exceed $75,000.00, but also that each defendant be a citizen of a different state from each plaintiff. See28 U.S.C. § 1332(a); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). An exception to the complete diversity rule exists with respect to 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”. 28 U.S.C. § 1332(d)(11)(B)(i). With respect to mass actions, only minimal diversity need exist, that is “any member of a class of plaintiffs is a citizen of a State different from any defendant”. 28 U.S.C. § 1332(d)(2)(A).

Defendants' first argument implicates the judicially created doctrine of procedural misjoinder, which was first recognized by the Eleventh Circuit in Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir.1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir.2000). In Tapscott, the Eleventh Circuit held that misjoinder of claims against non-diverse defendants, if “egregious”, could constitute fraudulent joinder. Id. at 1360. The Court counseled, however, that “mere misjoinder” would not constitute fraudulent joinder. Id. The defendants in the cases at bar ask the court to extend the procedural misjoinder doctrine recognized in Tapscott to the joinder of claims by different plaintiffs. They argue the New Jersey plaintiffs' claims are improperly joined with those of the diverse plaintiffs because the claims do not arise out the same transaction or occurrence. Halliburton, Defendants' Response at 9–17. Defendants contend the court should therefore sever and remand the New Jersey plaintiffs' claims while keeping jurisdiction over the diverse plaintiffs' claims.⁷

While the Court of Appeals for the Tenth Circuit has long recognized the doctrineof fraudulent joinder of defendants,⁸ it has not adopted the doctrine of fraudulent misjoinder,⁹ much less extended that doctrine to the joinder of claims by different plaintiffs. Moreover, the doctrine has been severely criticized by several courts.

Federal courts, however, have not given the doctrine a ringing endorsement. “The theory of procedural misjoinder articulated in Tapscott is inherently ambiguous ” for one reason, because of the confusion surrounding when misjoinder is so “egregious” as to constitute fraudulent misjoinder. In re Genetically Modified Rice Litigation, No. 4:06 MD 1811 CDP, No. 4:07 CV 825 CDP, 2007 WL 3027580 at *4 (E.D.Mo. Oct. 15, 2007) (emphasis added); see also In re Guidant Corp. Implantable Defibrillators Products Liability Litigation, Civil No. 07–1487 (DWF/AJB), MDL No. 05–1708 (DWF/AJB), 2007 WL 2572048 at *3 (D.Minn. Aug. 30, 2007) (noting that some courts require bad faith while other courts refuse to apply the egregious standard in remand petitions). District courts addressing a procedural misjoinder argument have reached “divergent conclusions on whether (and how) to apply the doctrine” and have determined that the doctrine involves many “unsettled questions.” Geffen [ v. General Elec. Co.], 575 F.Supp.2d [865] at 869–70 & n. 5 [ (N.D.Ohio 2008) ];see also In re Genetically Modified Rice, 2007 WL 3027580 at *4 (district courts have reached “varying results when faced” with a procedural misjoinder argument); Robinson v. Ortho–McNeil Pharmaceutical, Inc., 533 F.Supp.2d 838, 842 (S.D.Ill.2008) (noting that “a survey of case law from courts that have adopted the fraudulent misjoinder doctrine aptly discloses that the contours of the doctrine are anything but clear”); In re Fosamax Products Liability Litigation, 1:07–cv–2442, 1:07–cv–9564, 1:07–cv–9485, 1:07–cv–3792 (JFK), MDL No. 1789, 2008 WL 2940560 (S.D.N.Y. July 29, 2008) (noting that district courts appear to be equally divided on the applicability of the doctrine). Courts have criticized Tapscott as being “unsupported by Supreme Court precedent, contrary to the narrow construction that is to be given to removal statutes, and needlessly complex.” Frankland v. State Farm Fire & Casualty Co., No. 2:07–cv–1767, 2008 WL 4072819 at *3 (W.D.La. July 2, 2008). “To say the least, Tapscott has been roundly criticized.” Yates [ v. Medtronic, Inc.], 2008 WL 4016599 at *7 n. 4 [ (S.D.Ala. Aug. 26, 2008) ]

Palmer v. Davol, Inc., 2008 WL 5377991 at *3 (D.R.I. Dec. 23, 2008).

Given this criticism ¹⁰ and the lack of guidance by the Tenth Circuit, the court declines to adopt the procedural misjoinder doctrine and to extend it to the plaintiffs' claims at issue in these actions. If plaintiffs' claims are in fact improperly joined under Oklahoma law, the proper course of conduct for defendants would have been to file a motion to sever in state court and then remove the diverse claims, if any.¹¹ For this court to rule on joinder issues before determining whether it has subject matter jurisdiction puts the cart before the horse; Rule 82 of the Federal Rules of Civil Procedure does not permit ...