Manz v. Brenntag NA (2019)

Our plain-English summary of Manz v. Brenntag NA (U.S. District Court, District of New Jersey, June 20, 2019).

Robert Manz, a Wisconsin resident, sued in New Jersey Superior Court (Middlesex County). He alleged that he was exposed to Johnson & Johnson baby powder containing asbestos from the late 1970s into the 1990s, and that it caused his mesothelioma. Defendants included talc suppliers Imerys and Cyprus Amax, along with Johnson & Johnson entities and Brenntag companies based in New Jersey. Right after the complaint was filed, Imerys removed the case to federal court. Manz asked the court to send the case back to state court, arguing that the forum defendant rule barred removal because the New Jersey defendants had been served. The court denied the request. It reasoned that the New Jersey defendants were not "properly joined and served" when removal was completed. There was no showing that personal service had been tried before certified mail, and under New Jersey rules certified mail service takes effect only if the defendant answers or appears, which had not happened. The court followed the Third Circuit's Encompass decision, which treats the "properly joined and served" requirement as a bright-line rule.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, District of New Jersey
• Decided: June 20, 2019
• Docket: Civil Action No. 3:18-cv-14083 (PGS) (TJB)
• Stage: Jurisdiction, venue or removal
• State: New Jersey

Outcome. The district court denied plaintiff Robert Manz's motion to remand to New Jersey state court, so removal by defendants Imerys and Cyprus Amax stood.

What the court held. Under 28 U.S.C. § 1441(b)(2) and Third Circuit precedent (Encompass), the forum defendant rule bars removal only when a forum defendant has been properly joined and served; a forum defendant not yet served when removal is completed does not block removal.

Issues decided: Venue, Removal and Transfer.

The people and their exposure

• Robert Manz: mesothelioma

The defendants

• Imerys Talc America, Inc. (supplier)
• Cyprus Amax Minerals Company (supplier)
• Johnson & Johnson Consumer Companies, Inc. (manufacturer)
• Brenntag North America (supplier)
• Brenntag Specialties, Inc. (supplier)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

ROBERT MANZ, Plaintiff,

v.

BRENNTAG N.A., etal., Defendant.

Civil Action No. 3:18-cv-14083 (PGS) (TJB).

June 20, 2019.

United States District Court, D. New Jersey.

ROBERT MANZ, Plaintiff, represented by F. ALEXANDER EIDEN, WEITZ & LUMENBERG PC.

CYPRUS AMAX MINERALS COMPANY, individually, and as successor to SIERRA TALC COMPANY and UNITED TALC

COMPANY & IMERYS TALC AMERICA, INC., formerly known as LUZENAC AMERICA, INC and CYPRUS INDUSTRIAL

MINERALS COMPANY, Defendants, represented by JOHN CHRISTIE MCMEEKIN, II, RAWLE AND HENDERSON LLP &

SEBASTIAN A. GOLDSTEIN, RAWLE & HENDERSON LLP.

MEMORANDUM AND ORDER

PETER G. SHERIDAN, District Judge.

This matter comes before the Court on a motion to remand the action to state court filed by Plaintiff. (ECF No. 7). According to the complaint, Plaintiff was exposed to Johnson & Johnson baby powder, which contained asbestos, beginning in the late 1970s and continuing into the 1990s. (Notice of Removal, Ex. 1, Complaint ("Complaint"), ECF No. 1-1 at ¶ 1). The baby powder caused Plaintiff to develop mesothelioma. (Id. at ¶ 7).

On September 14, 2018, Plaintiff filed a complaint in New Jersey Superior Court, Middlesex County. In addition to the moving Defendants, the complaint also names as defendants: Brenntag, N.A.; Brenntag Specialties, Inc.; Sierra Talc Company; United Talc Company; Luzenac America, Inc.; Cyprus Industrial Minerals Company; Johnson & Johnson Consumer Companies, Inc.; and Whitaker, Clark & Daniels, Inc. Immediately after the complaint was filed, Imerys removed the case to this Court, citing 28 U.S.C. § 1441(b)(2) and Encompass Ins. Co. v. Stone Mansion Rest., Inc., 902 F.3d 147, 153 (3d Cir. 2018). (See Notice of Removal, ECF No. 1 at ¶ 20).

Plaintiff is a resident of Wisconsin. (Id. at ¶ 10). Imerys is a Delaware corporation with its principal place of business in California. (Id. at ¶ 11). Cyprus Amax is a Delaware corporation with a principal place of business in Arizona. (Id. at ¶ 12). Johnson & Johnson; Johnson & Johnson Consumer Companies, Inc.; Brenntag Specialties, Inc.; and Brenntag North America are "forum defendants," having both their places of incorporation and principal places of business in New Jersey. (Id. at ¶¶ 13-16).

Plaintiff argues the Court should remand this matter to state court pursuant to the forum defendant rule because it served the forum defendants with the complaint before Defendants removed the action to federal court. Pursuant to the forum defendant rule, a civil action otherwise removable based on diversity jurisdiction "may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b)(2). Courts have recognized that Congress enacted the properly joined and served rule "to prevent a plaintiff from blocking removal by joining as a defendant a resident party against whom it does not intend to proceed, and whom it does not even serve." Encompass Ins. Co. v. Stone Mansion Restaurant, Inc., 902 F.3d 147, 153 (3d Cir. 2018) (citations omitted).

Here, remand is not proper because the forum defendants were not "properly joined and served" when the removal was complete. 28 U.S.C. § 1441(b)(2). "Personal service is the primary method of service in New Jersey." City of Passaic v. Shennett, 915 A.2d 1092, 1097 (N.J. Super. Ct. App. Div. 2007). Service by certified mail is permitted only "[i]f personal service cannot be effected after a reasonable and good faith attempt." N.J. Ct. R. 4:4-3(a). Even where proper, service by certified mail is "effective for obtaining in personam jurisdiction only if the defendant answers the complaint or otherwise appears in response thereto." N.J. Ct. R. 4:4-4(c). There is no showing that Plaintiff first attempted personal service of the

complaint before serving it by certified mail. And, removal was completed before the forum defendants answered or otherwise appeared in response to the complaint.

The Third Circuit has recently addressed this exact issue and held that remand is not permitted because the "properly joined and served" requirement imposes "a bright-line rule." Encompass Ins. Co., 902 F.3d at 153. The court acknowledged that the "result may be peculiar in that it allows [a defendant] to use pre-service machinations to remove a case that it otherwise could not," but the language of the statute rather than the peculiar result controls. Id. at 153-54. The Court specifically noted: We are aware of the concern that technological advances since enactment of the forum defendant rule now permit litigants to monitor dockets electronically, potentially giving defendants an advantage in a race-to-the-courthouse removal scenario. . . . If a significant number of potential defendants (1) electronically monitor dockets; (2) possess the ability to quickly determine whether to remove the matter before a would-be state court plaintiff can serve process; and (3) remove the matter contrary to Congress' intent, the legislature is well-suited to address the issue.

Id. at 153 n.4.

Because the forum defendants were not served with the complaint before Imerys completed removal, the forum defendants were not "properly joined and served" under the removal statute. The Court is bound by Third Circuit precedent to deny Plaintiff's motion to remand.

ORDER

This matter comes before the Court on a motion filed by Plaintiff to remand the action to state court. The Court has considered the written submissions of the parties and held oral argument on December 6, 2018. Accordingly, for the reasons stated herein and for good cause shown,

IT IS on this 20th day of June, 2019;

ORDERED that the motion to remand to state court filed by Plaintiff (ECF No. 7) is denied.

Sources

• The opinion on Google Scholar
• New Jersey asbestos laws
• New Jersey asbestos exposure sites