Harris v. Bristol-Myers Squibb Co.
| Decision Date | 12 April 2012 |
| Docket Number | Civil Action No.: 11-6004 (FLW) |
| Parties | DYSHELLE HARRIS, Plaintiff, v. BRISTOL-MYERS SQUIBB COMPANY, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
*NOT FOR PUBLICATION
Plaintiffs1 here initiated individual actions2 in state court, alleging, inter alia, physical and mental injuries due to their exposure to an environmentally contaminated site owned by Bristol-Myers Squibb Company ("BMS" or "Defendant") in New Brunswick, New Jersey. Numerous similar earlier cases have been filed in state court, and in 2008, the cases were designated as a mass tort litigation by the New Jersey Supreme Court for centralized case management. In October 2011, Defendant timely removed to federal court the fifty cases most recently filed in state court related to the mass tort litigation - the cases before this Court. Subsequently, Plaintiffs filed a motionto remand. To justify remand, Plaintiffs assert that (1) this Court does not have subject matter jurisdiction because of a lack of complete diversity or based upon the forum home defendant rule; and (2) Defendant has waived its right to remove. Alternatively, Plaintiffs submit that this Court should abstain from hearing these cases under the Colorado River doctrine. For the reasons explained below, the Court denies Plaintiffs' motion in its entirety.
The Bristol-Myers Squibb New Brunswick Site ("Squibb Site") is an approximately 100-acre area located on the border of the City of New Brunswick and the township of North Brunswick in Middlesex County, New Jersey. Schrama's Decl. at Ex. A at p. 1. Since 1905, E.R. Squibb & Sons, Inc. had operated pharmaceutical research, development and manufacturing facilities at the Squibb Site, but in 1989, it merged with Bristol-Myers Corporation ("BMC");3 BMC changed its name to BMS, and E.R. Squibb & Sons, Inc. became a subsidiary of BMS. See Kelly's Cert. at ¶ 3. On April 30, 2000, BMS converted E.R. Squibb & Sons, Inc. to a limited liability company under the laws of the State of Delaware, and BMS became the sole member of E.R. Squibb & Sons, L.L.C. ("Squibb"). Id. at ¶¶ 4-5. Since then, BMS has operated the facilities on the Squibb Site. Id. at ¶ 7.
In May 2008, individuals began filing tort-based environmental lawsuits against BMS, Squibb4 and BMC in state court. Schrama's Decl. at Ex. D at p. 1. These complaints allege that current and previous residents, in close proximity to the Squibb Site, had been, and some continue to be, exposed to toxic and hazardous substances that allegedly emanated from the Squibb Site. Id. at Ex. C at ¶¶ 16-22. By inhaling or direct contact with contaminated water and/or soil, these plaintiffs allege, inter alia, that they suffered, and continue to suffer, severe physical injuries, emotional/economic distress and property damages during different periods of time. Id. at ¶ 23. These plaintiffs are all represented by the law firm of Garrity, Graham, Murphy, Garofalo & Flinn, P.C. and the law firm of Stark & Stark.
As the number of filings increased, counsel for plaintiffs in state court filed an application for mass tort designation with the New Jersey Supreme Court in September 2008, to facilitate the process for filing and managing these environmental tort cases. See Schrama's Decl. at Ex. D. After having reviewed the application, over the objection of Defendant, the New Jersey Supreme Court granted the cases mass tort status and assigned the 106 already-filed cases as well as all future cases to the Honorable Carol E. Higbee, Judge of the Superior Court, Law Division, Atlantic County. See Schrama's Decl. at Ex. F.
At the first case management conference held before Judge Higbee in November 2008, BMS questioned the status of the two other defendants, BMC and Squibb, which entities Plaintiff had failed to serve. See Schrama's Decl. at Ex. G at TR 42-23 to 44-18(transcript of November 2008, Case Management Conference). As a result of that lack of service of process, Judge Higbee noted that these two defendants should be dismissed for lack of prosecution. Id. at TR 44:10-13. Based on the discussion, plaintiffs' counsel filed stipulations of dismissal without prejudice as to defendants BMC and Squibb, and BMS accordingly stipulated that it would be responsible for any judgment that might be entered in these related cases. See Schrama's Decl. at Ex. H at p. 1. Since the first case management conference, over 150 new cases have been added to the state mass tort litigation, and more cases are expected to be filed. Currently, pursuant to 13 Case Management Orders,5 the parties are engaged in discovery.
On October 13, 2011, Defendant filed and served timely notices to remove each of the last fifty cases filed in state court to the federal court pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. See Rooney's Cert. at ¶ 6. The cases were assigned to me. In response, Plaintiffs move to remand, contending that (1) there is no diversity jurisdiction because Defendant's principal place of business is located in New Jersey, wherein most of the plaintiffs reside, or alternatively, Defendant cannot remove based upon the forum home defendant rule;6 and (2) Defendant waived its right to remove cases by agreement and by its conduct. Plaintiffs further argue that this Court should abstain from hearing the removed cases under the Colorado River doctrine.
On March 26, 2012, the parties appeared before the Court for a motion hearing. Having heard the parties' arguments, the Court ruled on the record that Defendant has carried its burden of demonstrating that its removal is proper.7 In that respect, Defendant has provided sufficient evidence, by way of its Assistant General Counsel's certification, to establish that its principal place of business, its headquarters or nerve center, is indeed located in New York, New York.8 See Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010). Asa result, because Defendant is domiciled in Delaware and New York, the Court found that diversity exists between Defendant and Plaintiffs in these cases, and that the forum home defendant rule does not apply.9 See Hearing TR dated March 26, 2012 at pp. 41-44. The Court will not repeat its findings and analysis on this issue here. In addition, the Court summarily rejected Plaintiff's contentions that Defendant waived its right to remove either by agreement or conduct. Id. at pp. 11-12. This Opinion sets forth the Court's reasoning on those findings, and it will also address the applicability of the Colorado River doctrine.
A. Waiver by Agreement
Plaintiffs argue that the parties entered into an oral enforceable agreement during the state court proceedings, whereby Plaintiffs agreed to dismiss their claims against the non-diverse defendants, i.e., BMS and Squibb, and refrain from bringing direct claims against them, leaving BMS as the only named defendant. In return, Defendant would assume all liability for Plaintiffs' claims to the extent proven, and according to Plaintiffs, Defendant would refrain from removing any current or future mass tort related cases filed in state court to the United States district court. Id. In essence, Plaintiffs contend that Defendant contractually waived its right to remove.
A federal court sitting in diversity must apply the substantive law of the forum state, here, New Jersey, in deciding questions of the existence and enforcement of contracts. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Clark v. Modern Group, 9 F.3d 321, 326 (3d Cir. 1993). Contractual waiver of federal jurisdiction is determined in the same manner as all preliminary contractual questions. Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1218 n.15 (3d Cir. 1991). In New Jersey, the basic elements of a contract are offer, acceptance, and consideration. See Contl. Bank of Pa. v. Barclay Riding Acad., Inc., 93 N.J. 153, 170 (1983). A contract "arises from offer and acceptance, and must be sufficiently definite that the performance to be rendered by each party can be ascertained with reasonable certainty." Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992) (internal quotations omitted) (quoting West Caldwell v. Caldwell, 26 N.J. 9, 24-25 (1958)). In that regard, "New Jersey ... will enforce an oral ... argument provided that it has the basic contract formation elements of offer and acceptance of sufficiently definite essential terms, or in other words, mutual assent to the same terms (a 'meeting of the minds')." LNT Merch. Co. v. Dyson, Inc. No. 08-2883, 2009 U.S. Dist. LEXIS 62308, *6 (D.N.J. July 21, 2009) (citing Excelsior Ins. Co. v. Pennsbury Pain Ctr., 975 F. Supp. 342, 348-49 (D.N.J. 1996); Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div. 1983)).
Here, Plaintiffs' assertion that an oral agreement exists arises from a case management conference held before Judge Higbee on November 7, 2008, as well as a phone conversation between the parties' counsel on January 9, 2009. The Court will address each instance separately.
Plaintiffs point to a specific colloquy BMS' prior counsel had with Judge Higbee and plaintiffs' counsel during the conference as evidence that Defendant agreed, by way of a binding oral agreement, not to remove any related state court cases. Having reviewed the relevant portions of that court proceeding, the Court does not find that defense counsel discussed removal at all, let alone provided any oral assurance that would amount to a binding contract. At that particular conference, counsel for BMS questioned the status of the other defendants, BMC and Squibb:
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