Kalogeras v. Johnson & Johnson et al
| Helen Kalogeras |
| Johnson & Johnson, Johnson & Johnson Consumer Inc., CVS Pharamacy Inc., CVS Albany LLC., Proctor and Gamble LLC., E&M ESR Inc., Quality King Distributors Inc.. and John Paul Mitchell Systems Inc. |
| 1:2023cv04707 |
| June 23, 2023 |
| US District Court for the Eastern District of New York |
| Brian M Cogan |
| Tort Product Liability |
| 28 U.S.C. § 1332 Diversity-Product Liability |
| Both |
Docket Report
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ORDER OF REMAND to Supreme Court, Queens County, case number 710977/2023. This case should never have been removed. The removing defendants, Johnson & Johnson and Johnson & Johnson Consumer Products, purported to remove based on the allegation that their co-defendants had not yet been served. That allegation, in turn, was predicated on the Johnson defendants finding no affidavits of service against their co-defendants on the state court docket. But the Johnson defendants have cited this Court to no provision of the CPLR that required plaintiff to have filed proof of service on the state court co-defendants. And there was no effort to just make a phone call to their co-defendants or to plaintiff to find out the status of service and coordinate removal with their co-defendants. Only now, after the Court had to issue an Order Show Cause, have the Johnson defendants conceded that the basis for removal was wrong. In addition, the Johnson defendants have failed to respond to those portions of this Court's Order to Show Cause that noted they had improperly alleged the citizenship of the two LLCs, and that it was not at all clear that the amount in controversy requirement was met. Thus, the removal was defective both procedurally and because subject matter jurisdiction was not properly invoked. The Court has considered whether to award sanctions under Rule 11 for bad faith removal and has to determined not to in the expectation that counsel will not try to be so clever next time. Ordered by Judge Brian M. Cogan on 7/9/2023. (Cogan, Brian)
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| Filing 9 Letter Regarding Removal by Johnson & Johnson, Johnson & Johnson Consumer Inc. (Attachments: #1 Exhibit A - Plaintiff's Affidavits of Service) (Kohane, Nadine) |
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ORDER granting #8 . Defendants' answer due 8/4/2023. Ordered by Judge Brian M. Cogan on 7/6/2023. (PW)
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| Filing 8 Letter MOTION for Extension of Time to File Response/Reply to Plaintiff's Complaint by Johnson & Johnson, Johnson & Johnson Consumer Inc.. (Kohane, Nadine) |
| Filing 7 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (SR) |
| Filing 6 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (SR) |
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ORDER TO SHOW CAUSE. Defendant has failed to properly allege the citizenship of the LLC defendants in its notice of removal. See Bayerische Landesbank, New York Branch v. Aladdin Capital Management LLC, 692 F.3d 42, 49 (2d Cir. 2012) (citing Handelsman v. Bedford Village Associates Ltd. Partnership, 213 F.3d 48 (2d Cir. 2000); Flemming v. Port Auth. of N.Y. & N.J., No. 21-cv-1112, 2021 WL 878558, at *1 (E.D.N.Y. March 9, 2021); U.S. Liab. Ins. Co v. M Remodeling Corp., 444 F. Supp. 3d 408, 409-10 (E.D.N.Y. 2020). In addition, unlike some of the older and out of circuit cases cited in the notice of removal, this Court follows the bright-line rule established in Moltner v. Starbucks Coffee Co., 624 F.3d 34 (2d Cir. 2010), that, in state court personal injury actions, parties should not guess at whether the amount in controversy is satisfied based on a barebones complaint because C.P.L.R. 3017(c) provides a ready avenue for discovery of the amount in controversy and the 30 day clock does not begin to run until the defendant has actual notice of the amount. Here, all plaintiff has alleged is that he got a burn on his head and lost some hair. Neither this Court nor defendant knows whether it's a one inch burn, a first degree burn, or something more. The boilerplate reference to a "serious injury" in the complaint does not answer this question, as any injury is serious to a plaintiff who suffers one. Nor does the allegation that jurisdiction "exceeds that of all lower courts" change this analysis. Plaintiffs include that phrase in every complaint file in state supreme court to keep the case from being transferred down to the New York City Civil Court. This Court is not "lower" than the New York Supreme Court.Finally, the Court is not inclined to agree with defendant's selective citation of cases construing "joined and served" as invalidating the forum defendant rule. The district court cases are split on this and the Second Circuit has not opined. If a local defendant is joined solely to defeat diversity, there is a remedy for that. It does not appear to be the case here since it is typical and accepted in a product liability case for a plaintiff to sue those involved in the chain of distribution of the product. This Court is skeptical that Congress intended to invalidate the forum defendant rule by starting a race between the plaintiff, the removing defendant, and other unserved defendants.For these reasons, defendant is ORDERED TO SHOW CAUSE by 7/10/23 why this case should not be remanded to state court for lack of subject matter jurisdiction and as improperly removed. Ordered by Judge Brian M. Cogan on 6/30/2023. (PW)
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| This case has been opened in the Eastern District of New York. If you plan to continue representing your client(s), you must be admitted to practice before this court. You must do so by applying for Pro Hac Vice or permanent admission. To apply for Pro Hac Vice admission, you must first register for an ECF login and password. Please visit the Court's website at www.nyed.uscourts.gov/attorney-admissions for guidance. Once registered, you must electronically file a Motion to Appear Pro Hac Vice. You must pay the required pro hac vice fee online. (SR) |
| Case Assigned to Judge Brian M. Cogan. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (SR) |
| Filing 5 Civil Cover Sheet.. by Johnson & Johnson, Johnson & Johnson Consumer Inc. (Kohane, Nadine) |
| Notice: Incomplete Civil Cover Sheet. The Clerk's Office cannot assign this case without a completed Civil Cover Sheet. Please resubmit corrected Civil Cover Sheet. This event can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet. (SR) |
| Filing 4 Corporate Disclosure Statement by Johnson & Johnson Consumer Inc. (Kohane, Nadine) |
| Filing 3 Corporate Disclosure Statement by Johnson & Johnson (Kohane, Nadine) |
| Filing 2 NOTICE of Appearance by Nadine S. Kohane on behalf of Johnson & Johnson, Johnson & Johnson Consumer Inc. (notification declined or already on case) (Kohane, Nadine) |
| Filing 1 NOTICE OF REMOVAL by Johnson & Johnson, Johnson & Johnson Consumer Inc. ( Filing fee $ 402 receipt number ANYEDC-16827889) (Attachments: #1 Exhibit 1, #2 Certificate of Service) (Kohane, Nadine) |
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