Torres v. Johnson, Civil Action No. 18-10566-MGM

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtMASTROIANNI, U.S.D.J.
PartiesMIGUEL RAMOS TORRES, Plaintiff, v. JOHNSON & JOHNSON et al., Defendants.
Docket NumberCivil Action No. 18-10566-MGM
Decision Date17 May 2018

JOHNSON & JOHNSON et al., Defendants.

Civil Action No. 18-10566-MGM


May 17, 2018

No. 7)



Miguel Ramos Torres ("Plaintiff") brought this action in state court against Johnson & Johnson, Ethicon, Inc., and Mercy Hospital, Inc. d/b/a Mercy Medical Center ("Mercy"), asserting product liability claims arising out of an allegedly defective prolene mesh hernia system implanted in Plaintiff during a medical procedure.1 On March 23, 2018, Johnson & Johnson and Ethicon, Inc. ("Removing Defendants") removed the action to this court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. The basis for removal was that Mercy, the only non-diverse Defendant, settled with Plaintiff, culminating in an Order for Entry of Dismissal Nisi issued by the state court on February

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26, 2018. According to the notice of removal, that Order, although it did not formally enter judgment as to Mercy or dismiss it, rendered Mercy a "nominal" defendant and thereby created complete diversity of citizenship between Plaintiff and Removing Defendants. (Dkt. No. 1.)

On March 26, 2018, Plaintiff filed a motion to remand, challenging the propriety of the removal. (Dkt. No. 7.) Plaintiff presses two alternative arguments: the removal was too late (because the Removing Defendants knew about the settlement in October or November of 2017) or the removal was too early (because Mercy technically is still a defendant). Plaintiff also argues the removal was done in bad faith in an attempt to evade state court discovery orders and seeks sanctions. For the following reasons, the court concludes that the removal was proper and, therefore, will deny Plaintiff's motion.


Plaintiff filed this action on May 16, 2017 in Hampden County Superior Court. (Dkt. No. 20, Compl.) He asserts claims of negligence, strict liability (design defect, manufacturing defect, and failure to warn), breach of express and implied warranty, and violation of Mass. Gen. Laws ch. 93A relating to the implantation of a prolene mesh hernia system in August of 2010. (Id.) Plaintiff alleges Removing Defendants designed, manufactured, packaged, labeled, marketed, sold, and distributed the mesh hernia system, whereas Mercy was the hospital where the surgery was performed. (Id. ¶¶ 7-8.)

Plaintiff and Removing Defendants engaged in discovery disputes while the action proceeded in state court. As relevant here, on February 26, 2018, the state court ordered Removing Defendants to provide certain documents in viewable, unencrypted formats. (Dkt. No. 21 at 151.) Also on February 26, 2018, the parties reported to the court that Plaintiff and Mercy had reached a settlement agreement. (Id. at 150-51; Dkt. No. 26 at 19-20.) The court therefore issued, that same

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day, an Order for Entry of Dismissal Nisi, which stated that in light of the reported settlement an Agreement for Judgment or Stipulation of Dismissal shall be filed by June 26, 2018 or, if neither document was filed by that date, a judgment dismissing Mercy without prejudice would be entered by the Clerk. (Dkt. No. 21 at 150.)2

Thereafter, Plaintiff and Removing Defendants continued litigating certain discovery disputes. On March 14, 2018, the state court scheduled a hearing on Plaintiff's motion to compel. (Dkt. No. 22 at 151.) Ethicon, Inc. then filed an emergency motion to reschedule the hearing. (Id. at 152.) In his opposition to the emergency motion, Plaintiff asserted that Removing Defendants, on March 12, 2018, violated the court's February 26, 2018 order requiring the production of unencrypted documents. (Id. at 158.) The court then granted the emergency motion to reschedule and set the hearing for April 10, 2018. (Id. at 168.)

On March 23, 2018, however, Removing Defendants removed the action to this court based on diversity of citizenship in light of the February 26, 2018 Order for Entry of Dismissal Nisi. (Dkt. No. 1.) Three days later, on March 26, 2018, Plaintiff filed the pending motion to remand. As mentioned, Plaintiff argues the removal was either too late or too early. In support of the first argument, Plaintiff relies on two emails he claims provided Removing Defendants with sufficient information to remove well before March 23, 2018. The first email, sent on October 31, 2017 by Plaintiff's counsel, states in relevant part that Mercy "has offered the statutory charitable cap in this case to be released. Although I have to present it to my client, my recommendation will be that he take the cap . . . ." (Dkt. No. 26 at 1.) The second email, sent on November 28, 2018 by Plaintiff's counsel, states in relevant part that "Mercy is settled and we are finalizing settlement documents."

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(Dkt. No. 1-3.) As for the second argument, Plaintiff asserts Removing Defendants prematurely removed because Mercy is still a named defendant. Thus, Plaintiff argues, there was neither complete diversity of citizenship nor unanimous consent to remove among all defendants. Plaintiff also points to the timing of the removal, asserting the removal occurred just after the state court rescheduled a motion hearing following Plaintiff's report that Removing Defendants continued producing documents in encrypted formats, in violation of the court's previous order. Plaintiff therefore submits that the court should look to Removing Defendant's motivation for removal, find they did so in bad faith, and sanction them as well. In response, Removing Defendants argue the removal was proper and timely, their motivation for removal is irrelevant, and, in any event, they did not remove in bad faith.


Defendants have the statutory right to remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction . . . to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). Under 28 U.S.C. § 1332, federal courts have "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between . . . citizens of different States." 28 U.S.C. § 1332(a). "This statutory grant requires complete diversity between the plaintiffs and defendants in an action," Picciotto v. Continental Cas. Co., 512 F.3d 9, 17 (1st Cir. 2008), meaning that all parties on one side of the litigation must be "citizens of different states from all parties on the other side," City of Indianapolis v. Chase Nat'l Bank of New York, 314 U.S. 63, 69 (1941). In other words, "diversity jurisdiction does not exist where any plaintiff is a citizen of the same state as any defendant." Alvarez-Torres v. Ryder Mem'l Hosp., Inc., 582 F.3d 47, 54 (1st Cir. 2009).

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An exception to the complete diversity requirement is that "a federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy." Navarro Sav. Ass'n v. Lee, 446 U.S. 458, 461 (1980). Therefore, "a case may be removed based on any voluntary act of the plaintiff that effectively eliminates the nondiverse defendant from the case." Estate of Martineau v. ARCO Chemical Co., 203 F.3d 904, 911 (5th Cir. 2000) (quoting Vasquez v. Alto Bonito Gravel Plant Corp., 56 F.3d 689, 693 (5th Cir. 1995)); see also Heniford v. American Motor Sales Corp., 471 F. Supp. 328, 334 (D.S.C. 1979) ("It is quite well-settled that if the plaintiff voluntarily dismisses, discontinues, or in any way abandons, the action as to the resident joint defendant, the cause then becomes removable, and may, upon prompt action, be removed by the non-resident defendants who have been served." (quoting Stamm v. American Telephone & Telegraph Co., 129 F. Supp. 719, 721 (W.D. Mo. 1955)). In this regard, "[t]he existence of a settlement agreement that is binding and enforceable under the applicable state law constitutes a voluntary dismissal, and precludes the court from considering the citizenship of that defendant for purposes of determining diversity." Hanahan v. John Hancock Life Ins. Co., 518 F. Supp. 2d 780, 785 (D.S.C. 2007); see Estate of Martineau, 203 F.3d at 910 ("Federal courts must look to state law to determine whether removal is proper on the ground that the nondiverse defendant is no longer effectively a party to the case.") see also Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 903 n.2 (8th Cir. 1985) (holding, without elaboration, that "a settlement between Chohlis and the pilot's estate was final enough to support removal").

As for the timing of removal, the notice of removal must be filed either within thirty days after the defendant's receipt of the initial pleading, or,

[i]f the case stated by 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 from which it may first be ascertained that the case is one which is or has become removable.

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28 U.S.C. § 1446(b). The First Circuit, consistent with the "bright-line" approaches of every other circuit to have addressed the issue, has held that a document provided by the plaintiff only triggers the thirty-day clock for removal when the "paper provides the defendant with sufficient information to easily determine that the matter is removable." Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 72 (1st Cir. 2014). Thus, "[t]he defendant has no duty . . . to investigate or to supply facts outside of those provided by the plaintiff." Id. at 75; see also Lovern v. General...

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