ORDER – PAGE 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GUY MONICAL, §

§

Plaintiff, §

§

v. § Civil Action No. 3:22-CV-00859-K

§

JOHNSON & JOHNSON, JOHNSON & §

JOHNSON SERVICES, INC., MEDICAL §

DEVICE BUSINESS SERVICES, INC., §

and DEPUY SYNTHES SALES, INC., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff Guy Monical’s Motion for Reconsideration and to 

Vacate the Court’s Scheduling Order (Doc. No. 23), Emergency Motion for Case 

Management Conference (Doc. No. 24), and Amended Motion for Reconsideration 

and to Vacate the Court’s Scheduling Order (the “Amended Motion”) (Doc. No. 26)

(collectively, the “Motions”). Defendants Medical Device Business Services, Inc., f/k/a 

DePuy Orthopaedics, Inc. and DePuy Synthes Sales, Inc. (collectively, the “DePuy 

Defendants”) filed a response in opposition to Plaintiff’s motions (the “Response”) 

(Doc. No. 27) to which Plaintiff filed a reply (Doc. No. 29). Pursuant to the Order 

Appointing Special Master (MDL 2244 Doc. No. 81), a telephonic hearing was 

conducted on December 9, 2022. See generally Doc. No. 28.

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ORDER – PAGE 2

The Court has carefully considered Plaintiff’s Motions, the Response, the Reply, 

the supporting appendices, the applicable law, and the relevant portions of the record. 

The Court finds justice requires Plaintiff be granted relief from the Court’s order 

denying his motion to remand. Thus, the Court, in its discretion, GRANTS in part

the Amended Motion and hereby reconsiders its order. Because Defendants Johnson 

& Johnson and Johnson & Johnson Services, Inc. (together, the “J&J Defendants”) are 

“properly joined and served” forum defendants, the Court finds that removal was 

improper pursuant to 28 U.S.C. § 1441(b)(2). The Court VACATES its Order denying 

remand (Doc. No. 21) and GRANTS Plaintiff’s Motion to Remand (Doc. No. 11). 

Accordingly, the Court REMANDS this case to the Superior Court of New Jersey, 

Middlesex County (Case No. MID-L-006740-21). All other of Plaintiff’s Motions and 

requested relief is hereby DENIED as moot.

I. Factual and Procedural Background

In his Complaint filed in New Jersey state court on or about November 23, 2021, 

Plaintiff alleges state law claims against the DePuy and J&J Defendants. See Doc. No.

1 at 1-2; see generally Doc. No. 1-1. As to the J&J Defendants specifically, Plaintiff 

alleges he was implanted with a hip replacement device designed and manufactured by 

the J&J Defendants, he suffered substantial injuries and damages due to the defects 

and unreasonable danger from the device, and his injuries were proximately caused by 

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ORDER – PAGE 3

the J&J Defendants. See, e.g., Doc. No. 1-1 at 6-8. On November 24, 2021, the DePuy 

Defendants removed the case to federal court on the basis of diversity jurisdiction and 

alleged the J&J Defendants had not yet been served. Doc. No. 1 at 2-3, 6. The DePuy 

Defendants then filed an Amended Notice of Removal on December 3, 2021, clarifying 

the J&J Defendants had been served. Doc. No. 7 at 2. The DePuy Defendants allege 

the parties’ citizenship is completely diverse as Plaintiff is a citizen of Wisconsin, the 

DePuy Defendants are citizens of Indiana and Massachusetts, and the J&J Defendants 

are citizens of New Jersey. Id. at 4-5. The DePuy Defendants acknowledge that the 

J&J Defendants are citizens of the state in which the action was filed, which would 

“ordinarily” make removal improper under § 1441(b). Id. at 5. However, the DePuy 

Defendants argue the J&J Defendants are not properly joined under the fraudulent 

joinder doctrine and their citizenship “should be ignored” for purposes of the forum 

defendant rule. Id. at 5-6.

On December 10, 2021, Plaintiff timely filed his Motion for Remand (Doc. No. 

11) arguing, in part, the J&J Defendants are properly joined and served forum 

defendants to this action, therefore removal was improper pursuant to the forum 

defendant rule. See, e.g., Doc. No. 11-1 at 6-7. The DePuy and J&J Defendants filed 

a response in opposition (Doc. No. 12) on December 20, 2021, and Plaintiff filed a 

reply in further support of his Motion for Remand (Doc. No. 13) on December 27, 

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ORDER – PAGE 4

2021. On April 15, 2022, the case was transferred from the United States District 

Court of New Jersey to this court pursuant to the Judicial Panel on Multidistrict 

Litigation which established MDL 2244. See Doc. Nos. 19 & 20. On November 18, 

2022, the Court issued its Order denying Plaintiff’s Motion for Remand (Doc. No. 21), 

and on November 19, 2022, the Court entered its Scheduling Order (Doc. No. 22).

Plaintiff subsequently filed the Motions now before the Court. See Doc. Nos. 

23, 24 & 26. Plaintiff makes several arguments for reconsideration, including that this 

Court should reconsider its denial and adopt the reasoning set forth in a recent opinion

from a New Jersey federal district court which granted motions for remand in thirtythree similarly situated would-be member cases of this MDL. See generally Doc. No. 

26. The DePuy Defendants filed their Response on December 2, 2022, in which they 

contend Plaintiff has not satisfied the reconsideration standard for this Court to revise 

its prior order. See generally Doc. No. 27. On December 7, 2022, Plaintiff filed a reply

in further support of his Motions (Doc. No. 29).

II. Applicable Law

A. Rule 54(b) Standard

A court may revise an interlocutory order pursuant to Federal Rule of Civil 

Procedure 54(b). FED. R. CIV. P. 54(b) (“[A]ny order or other decision . . . 

adjudicate[ing] fewer than all the claims or the rights and liabilities of fewer than all 

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ORDER – PAGE 5

the parties . . . may be revised at any time before the entry of a judgment adjudicating 

all the claims and all the parties’ rights and liabilities.”); see Austin v. Kroger Tex., L.P., 

864 F.3d 326, 336 (5th Cir. 2017) (“Rule 54(b) allows parties to seek reconsideration 

of interlocutory orders and authorizes the district court to ‘revise[] at any time’ ‘any 

order or other decision . . . [that] does not end the action.’”). An order denying a 

motion to remand is an interlocutory order. See Alvarez v. Midland Credit Mgmt., Inc., 

585 F.3d 890, 893 (5th Cir. 2009) (citing Aaron v. Nat’l Union Fire Ins. Co., 876 F.2d 

1157, 1160 (5th Cir. 1989) (“A district court’s denial of a motion to remand is not a 

final order, and it therefore is not reviewable on appeal.”)). “Under Rule 54(b), the 

trial court is free to reconsider and reverse its decision for any reason it deems sufficient, 

even in the absence of new evidence or an intervening change in or clarification of the 

substantive law.” Austin, 864 F.3d at 336 (internal quotations and citation omitted). 

Rule 54(b) provides for a flexible approach which “reflect[s] the inherent power of the 

rendering district court to afford such relief from interlocutory judgments as justice 

requires.” Austin, 864 F.3d at 336 (quoting Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. 

Cir. 2015) (internal quotations omitted)); see also Dallas Cty., Tex. v. MERSCORP, Inc., 

2 F. Supp. 3d 938, 950 (N.D. Tex. 2014) (O’Connor, J.), aff'd sub nom. Harris Cty., Tex.

v. MERSCORP Inc., 791 F.3d 545 (5th Cir. 2015) (on a motion to reconsider, the court 

must decide “whether reconsideration is necessary under the circumstances.”). The 

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ORDER – PAGE 6

decision whether to grant a motion for reconsideration rests within the broad discretion 

of the court. See Austin, 864 F.3d at 329 & 337; see also Dos Santos v. Bell Helicopter 

Textron, Inc. Dist., 651 F. Supp. 2d 550, 553 (N.D. Tex. 2009) (Means, J.). 

B. Forum Defendant Rule and Fraudulent Joinder Doctrine

Section 1441(a), the federal removal statute, allows the removal of any case 

brought in state court in which a federal court has original jurisdiction. 28 U.S.C. 

§ 1441(a). In addition to actions involving a federal question, federal courts have 

original jurisdiction over civil actions between citizens of different States with an 

amount in controversy that exceeds $75,000. 28 U.S.C. § 1332(a)(1). “In diversity 

cases, there is an additional limitation on removal, known as the forum-defendant 

rule.” Tex. Brine Co., L.L.C. v. Am. Arb. Ass’n, Inc., 955 F.3d 482, 485 (5th Cir. 2020). 

Section 1441(b)(2) provides that a case removable solely 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.” § 1441(b)(2); see id. 

Although the Fifth Circuit no longer refers to this doctrine as “fraudulent 

joinder”, the parties use this term in their briefing and, as this case originated in another 

district, this Court will likewise use this term here to be consistent. A defendant is 

fraudulently joined if the removing defendant shows “‘(1) actual fraud in the pleading 

of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action 

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ORDER – PAGE 7

against the non-diverse party in state court.’” Ticer v. Imperium Ins. Co., 20 F.4th 1040, 

1045 (5th Cir. 2021) (quoting Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th 

Cir. 2004) (en banc)). The DePuy Defendants allege only the latter in this case. Under 

the second theory of fraudulent joinder, the court considers “whether . . . there is no 

possibility of recovery by the plaintiff against an in-state defendant” or, stated 

differently, “there is no reasonable basis for the district court to predict that the 

plaintiff might be able to recover against an in-state defendant.” Smallwood, 385 F.3d 

at 573; accord Ticer, 20 F.4th at 1046. The court “may conduct a Rule 12(b)(6)-type 

analysis, looking initially at the allegations of the complaint to determine whether the 

complaint states a claim under state law against the in-state defendant.” Smallwood, 

385 F.3d at 573. Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there 

is no improper joinder.” Ticer, 20 F.4th at 1046 (quoting Smallwood, 385 F.3d at 573); 

see also Hicks v. Martinrea Auto. Structures (USA), Inc., 12 F.4th 511, 515 (5th Cir. 2021) 

(quoting Int’l Energy, 818 F.3d at 200) (cleaned up) (“To pass muster under Rule 

12(b)(6), a complaint must have contained enough facts to state a claim to relief that 

is plausible on its face.”). In a small number of cases, the court may “in its discretion,

pierce the pleadings and conduct a summary inquiry.” Smallwood, 385 F.3d at 573. 

“However, a summary inquiry ‘is appropriate only to identify the presence of discrete 

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ORDER – PAGE 8

and undisputed facts that would preclude plaintiff’s recover against the in-state 

defendant.’” Ticer, 20 F.4th at 1045 (quoting Smallwood, 385 F.3d at 573-74).

“The ‘focus of the inquiry must be on the joinder, not the merits of the plaintiff’s 

case.’” Ticer, 20 F.4th at 1045 (quoting Smallwood, 385 F.3d at 573); cf. Int’l Energy, 

818 F.3d at 206 (“In concluding that a plaintiff has not stated a claim against a 

nondiverse defendant under a Rule 12(b)(6)-type analysis in this context, the federal 

court decides only that it has jurisdiction over the plaintiff’s claims against the diverse 

defendants—not that the plaintiff does not have a claim at all against the nondiverse 

defendant.”). The removing defendant “bears a heavy burden of proving that the 

joinder of the in-state party was improper.” Smallwood, 385 F.3d at 574; see Ticer, 20 

F.4th at 1045 (party seeking removal must establish the court’s diversity jurisdiction 

and that removal was proper). The court must “resolve all contested factual issues and 

ambiguities of state law in favor of the plaintiff.” Gasch v. Hartford Acc. & Indem. Co., 

491 F.3d 278, 281 (5th Cir. 2007). The removal statute is strictly construed “and any 

doubt about the propriety of removal must be resolved in favor of remand.” Id.

III. Analysis

A. Reconsideration of Court’s Prior Order

In his Amended Motion, Plaintiff moves the Court to reconsider its prior order 

denying his Motion to Remand, based on various considerations, and to remand this 

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ORDER – PAGE 9

case. The DePuy Defendants oppose the requested relief, arguing Plaintiff does not 

“satisfy the reconsideration standard.” The Court has carefully considered the parties’ 

arguments on reconsideration and the applicable law. The Court may, sua sponte or on 

a party’s motion, revise an interlocutory order at any time before entering final 

judgment. FED. R. CIV. P. 54(b); see Millar v. Houghton, 115 F.3d 348, 350-51 (5th Cir. 

1997) (reaffirming “the court may reconsider and reverse any time before entering final 

judgment” an interlocutory order); Baig v. McDonald, 749 F. App’x 238, 241 (5th Cir. 

2018) (holding district court did not abuse its discretion in reconsidering sua sponte its 

prior ruling denying summary judgment motion). The Court concludes, in its 

discretion, that justice requires reconsideration of its order denying Plaintiff’s Motion 

for Remand. See Austin, 864 F.3d at 336 (the flexible approach of Rule 54(b) “reflect[s] 

the inherent power of the rendering district court to afford such relief from 

interlocutory judgments as justice requires.”); id. (“Under Rule 54(b), the trial court is 

free to reconsider and reverse its decision for any reason it deems sufficient, even in the 

absence of new evidence or an intervening change in or clarification of the substantive 

law.”) (internal quotations and citation omitted). Therefore, the Court GRANTS in 

part Plaintiff’s Amended Motion as to reconsideration of the order. The Court will 

reconsider whether removal was improper thereby requiring remand.

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ORDER – PAGE 10

B. Forum Defendant Rule and Fraudulent Joinder

“[T]he forum-defendant rule is a procedural rule and not a jurisdictional one.” 

Tex. Brine Co., 955 F.3d at 485. A procedural defect in the removal can be waived if 

the plaintiff fails to timely move for remand on that basis. See In re 1994 Exxon Chem. 

Fire, 558 F.3d 378, 393-96 (5th Cir. 2009). In this case, Plaintiff timely moved for 

remand on the basis that the DePuy Defendants’ improperly removed this action 

pursuant to the forum defendant rule. See Doc. No. 11. Thus, Plaintiff did not waive 

procedural defect in the removal procedure as a basis for remand.

The DePuy Defendants argue that the fraudulent joinder doctrine applies in 

determining the propriety of this removal. Specifically, the DePuy Defendants argue 

that the J&J Defendants are not properly joined under the fraudulent joinder doctrine 

so their citizenship “should be ignored” for purposes of the forum defendant rule which 

would otherwise prohibit this removal. Doc. No. 7 at 5-6.

To re-iterate, the question before the Court on this removal is not a jurisdictional 

one. Tex. Brine Co., 955 F.3d at 485. The DePuy Defendants allege in their Notice of 

Removal that the parties’ citizenship is completely diverse, including that of Plaintiff 

and the J&J Defendants. Doc. No. 7 at 4-5. Therefore, this Court can exercise subject 

matter jurisdiction over this matter. The issue before the Court is whether the DePuy 

Defendants’ removal was improper under the forum defendant rule; in other words, 

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ORDER – PAGE 11

whether the removal was procedurally defective. District courts in Texas have

frequently remarked that it is unclear whether the fraudulent joinder doctrine extends 

to removal involving a diverse forum defendant. See, e.g., WF/TX Invs., LLC v. Seneca 

Ins. Co., Inc., Civ. Action No. 4:19-Cv-0751, 2020 WL 1812672, at *3 (E.D. Tex. Apr. 

9, 2020); DeLong v. car2go NA, LLC, 2019 WL 3423442, at *2 n. 2 (W.D. Tex. July 

30, 2019); Butler v. ENSCO Intercontinental GmbH, Civ. Action No. H-16-578, 2017 

WL 496073, at *6-7 (S.D. Tex. Feb. 7, 2017); OAM Corp. v. Owners Ins. Co., Civ. 

Action No. 3:13-CV-3872, 2013 WL 12128782, at *2 (N.D. Tex. Dec. 5, 2013) 

(Godbey, J.); but see Molina v. Am. Access Cas. Co., SA-21-CV-00363-XR, 2021 WL 

3639790, at *3-4 (W.D. Tex. Aug. 17, 2021). Indeed, one court recently emphasized 

that “[n]o Circuit, let alone the Fifth Circuit, has conclusively held that the improper 

joinder doctrine extends to [diverse] forum defendants.” WF/TX Invs., 2020 WL 

1812672, at *3; see also Morris v. Nuzzo, 718 F.3d 660, 666-71 (7th Cir. 2013) 

(recognizing no other circuit court has answered “whether fraudulent joinder creates 

an exception to the forum defendant rule” and holding that the court “is reluctant to 

expand the fraudulent joinder doctrine” as doing so “would be in tension with longestablished precedent that the removal statutes are to be strictly construed to preserve 

the limited jurisdiction of federal courts.”).

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ORDER – PAGE 12

It is well established that “[t]he federal removal statute, 28 U.S.C. § 1441[], is 

subject to strict construction because a defendant’s use of that statute deprives a state

court of a case properly before it and thereby implicates important federalism 

concerns.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997). The DePuy 

Defendants state in their Response, “A finding of fraudulent joinder is warranted where 

there is ‘no reasonable basis in fact or colorable ground supporting’ the plaintiff’s claims 

against a non-diverse defendant.” Doc. No. 12 at 18 (emphasis added); see id. (applying 

fraudulent joinder, “a defendant is deemed a ‘nominal’ party whose citizenship has no 

bearing on the exercise of federal subject matter jurisdiction.”). But these parties are 

diverse, as the DePuy Defendants repeatedly assert, and the Court’s subject matter 

jurisdiction is not in question. The DePuy Defendants fail to demonstrate that the 

fraudulent joinder doctrine applies here where the forum defendant rule is implicated.

Accordingly, the Court declines the opportunity to explicitly extend the 

fraudulent joinder doctrine to the forum defendant rule where the parties are diverse. 

See Texas Brine, 955 F.3d at 486 (quoting Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 

699, 705 (2d Cir. 2019) (“By its text, then Section 1441(b)(2) is inapplicable until a 

home-state defendant has been served in accordance with state law; until then, a state 

court lawsuit is removable under Section 1441(a) so long as a federal district court can 

assume jurisdiction over the action.”)); see also Morris, 718 F.3d at 670-71 (“Ultimately, 

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ORDER – PAGE 13

we think it a very close question whether the fraudulent joinder doctrine ought to 

extend to diverse resident defendant, and we are reluctant to rule definitively on the 

issue today absent a more thorough and more able presentation of the relevant balance 

of interests[.]”). The Court disagrees with the DePuy Defendants that the Court may 

disregard J&J’s citizenship as diverse forum defendants in determining whether 

removal was proper under § 1441(b)(2). Therefore, removal by the DePuy Defendants 

was improper as the J&J Defendants are citizens of the state where the action was filed 

and had been served at the time of removal. § 1441(b)(2); but cf. Texas Brine, 955 F.3d 

at 487 (affirming plain language of § 1441(b)(2), the forum defendant rule, permits 

the exception of “snap removal” where the forum defendant has not yet been “properly 

joined and served” in state court). For that reason, the Court finds the DePuy 

Defendants’ removal was procedurally defective and Plaintiff’s Motion for Remand 

must be granted.

Even if the Court were to consider the DePuy Defendants’ fraudulent joinder 

argument, remand would nevertheless be required because the DePuy Defendants did 

not meet their heavy burden of establishing the J&J Defendants were fraudulently

joined. In addressing fraudulent joinder, the Court considers “whether . . . there is no 

possibility of recovery by the plaintiff against an in-state defendant” or, stated 

differently, “there is no reasonable basis for the district court to predict that the 

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ORDER – PAGE 14

plaintiff might be able to recover against an in-state defendant.” Smallwood, 385 F.3d 

at 573. The Court’s focus is on whether the “plaintiff has a reasonable basis of recovery 

under state law”, and not “the merits of the plaintiff’s case.” Smallwood, 385 F.3d at 

573.

Plaintiff alleges multiple causes of action against the J&J Defendants, including 

violations of the New Jersey Product Liability Act (“NJPLA”) and breach of express 

warranty. The DePuy Defendants, in their Notice of Removal, allege the J&J 

Defendants were fraudulently joined because there is no reasonable basis for Plaintiff’s 

state law claims. See, e.g., Doc. No. 7 at 7-13. In making this assertion, the DePuy 

Defendants argue Plaintiff’s claims are governed by the laws of Illinois, not New Jersey 

as Plaintiff asserts in his state court pleading. See Doc. No. 7 at 7-8. In the Fifth 

Circuit, “when different state laws may apply, federal courts exercising diversity 

jurisdiction apply the choice-of-law rules of the forum state.” Benchmark Elecs., Inc. v. 

J.M. Huber Corp., 343 F.3d 719, 726 (5th Cir. 2003). But, “[a] choice-of-law analysis 

is unnecessary, however, if the laws of the states with an interest in the dispute do not 

conflict.” Aggreko, L.L.C. v. Chartis Specialty Ins. Co., 942 F.3d 682, 687 (5th Cir. 2019) 

(citing Mumblow v. Monroe Broad, Inc., 401 F.3d 616, 620 (5th Cir. 2005)); see also Ripoll 

v. RBC Cap. Mkts., LLC, 2020 WL 5819851, at *6 (S.D. Tex. Sept. 30, 2020) 

(declining to conduct choice-of-law analysis in determining a motion to remand where 

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ORDER – PAGE 15

laws of Minnesota and Texas do not conflict on issues relevant to deciding 

motion). “Under such circumstances, the substantive law of the forum 

applies.” Aggreko, 942 F.3d at 687. Here, the DePuy Defendants concede in their 

Response to the Motion for Remand that “it makes no difference for purposes of 

plaintiff’s motion [for remand] which state’s law applies” because “both require that 

each of the J&J defendants be a seller or manufacturer for liability to attach under 

plaintiff’s causes of action.” Doc. No. 12 at 19. Accordingly, the Court applies the law 

of the forum, New Jersey, for purposes of the fraudulent joinder analysis. See Aggreko, 

942 F.3d at 687.

Under the NJPLA, a cause of action is viable against a manufacturer or seller of 

a product which causes harm because it deviated from design specifications, 

performance standards, failed to contain adequate warning, or was designed in a 

defective manner. N.J.S.A. §2A:58C-2. The DePuy Defendants contend there is no 

reasonable basis supporting Plaintiff’s claims under the NJPLA because the J&J 

Defendants did not manufacture or sell the hip implant device, and they submit the 

declaration of Douglas Chia in support of this point. See Doc. No. 7 at 13-15, 19. 

Plaintiff’s Complaint sufficiently contradicts this point. Specifically, Plaintiff pleads 

“Johnson & Johnson, directly and/or through the actions of its subsidiaries, has at all 

pertinent times been responsible for the research, development, testing, manufacture, 

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ORDER – PAGE 16

production, marketing, promotion, distribution and/or sale of the product at issue[.]” 

Doc. 1-1 at 3-4; see also id. at 5-7, 8-9, 11-12, 16-18, & 27. Plaintiff also alleges, “At 

the time that J&J . . . manufactured . . . [and] . . . sold . . . the Pinnacle hip system 

implanted in Plaintiff, the Pinnacle contained defects that made it unreasonably 

dangerous beyond the expectations of the ordinary consumer, and was unfit for its 

intended use. The Pinnacle reached Plaintiff without substantial change in the 

condition in which it was sold.” Id. at 21 & 24. The Court finds that the Complaint 

sufficiently pleads a cause of action under New Jersey state law. See Hicks, 12 F.4th at

515 (quoting Int’l Energy, 818 F.3d at 200) (cleaned up) (“To pass muster under Rule 

12(b)(6), a complaint must have contained enough facts to state a claim to relief that 

is plausible on its face.”); Smallwood, 385 F.3d at 573. Because a single viable cause of 

action defeats fraudulent joinder, the Court goes no further. See Gray ex rel. Rudd v. 

Beverly Enters.-Miss., Inc., 390 F.3d 400, 412 (5th Cir. 2004) (“§1441’s holistic 

approach to removal mandates that the existence of even a single valid cause of action 

against in-state defendants (despite the pleading of several unavailing claims) requires 

remand of the entire case to state court.”).

The Court is unmoved by the DePuy Defendants’ argument that Mr. Chia’s 

declaration forecloses Plaintiff’s properly pled allegations in his Complaint. The DePuy 

Defendants submit Mr. Chia’s declaration as evidence that “conclusively establishes 

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ORDER – PAGE 17

that the J&J Defendants are fraudulently joined.” This declaration is summary 

judgment-type evidence that clearly goes to a disputed fact, which the Court must 

resolve in Plaintiff’s favor. See Ticer, 20 F.4th at 1045 (quoting Smallwood, 385 F.3d at 

573-74) (“[A] summary inquiry ‘is appropriate only to identify the presence of discrete 

and undisputed facts that would preclude plaintiff’s recover against the in-state 

defendant.’”); Gasch, 491 F.3d at 281 (court must “resolve all contested factual issues 

and ambiguities of state law in favor of the plaintiff.”). The DePuy Defendants have 

not demonstrated why it is appropriate to pierce the pleadings in this case. See 

Smallwood, 385 F.3d at 573 (piercing the pleadings to conduct a “summary inquiry” is 

appropriate in only a small number of cases). The Court, in its discretion, declines to 

pierce the pleadings and conduct a summary inquiry on this disputed point, resolving 

it instead in Plaintiff’s favor. See Smallwood, 385 F.3d at 573.

The Court has viewed all factual allegations in the light most favorable to 

Plaintiff and resolved any disputed fact issues and ambiguities of state law in Plaintiff’s 

favor. McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 334 (5th Cir. 2004). The Court 

cannot find that there is no reasonable basis to predict Plaintiff might be able to recover 

against in-state J&J Defendants. See Smallwood, 385 F.3d at 573; accord Ticer, 20 F.4th 

at 1046. The Court finds that Plaintiff’s state court petition alleged sufficient facts to 

plausibly state a claim for relief under New Jersey’s products liability laws against the 

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ORDER – PAGE 18

properly joined in-state J&J Defendants. See Int’l Energy Ventures Mgmt., 818 F.3d at 

200. Accordingly, the DePuy Defendants did not meet their heavy burden to 

demonstrate that the J&J Defendants were fraudulently joined. Because the J&J 

Defendants are “properly served and joined” forum defendants, the removal was 

procedurally defective under § 1441(b)(2) and the Court must remand this case to 

state court.

C. Conclusion

The Court declines the DePuy Defendants’ invitation to extend the fraudulent 

joinder doctrine to this case where the forum defendants, J&J, had been “properly 

served and joined” at the time of removal and are diverse to Plaintiff. The Court 

concludes the DePuy Defendants improperly removed this case to federal court under 

§ 1441(b)(2) and remand is required as Plaintiff raised this procedural defect in the 

Motion for Remand. Even if the Court had considered the fraudulent joinder doctrine 

as argued by the DePuy Defendants, remand would nevertheless be dictated because 

the J&J Defendants were properly joined forum defendants when the case was removed. 

Thus, the Court vacates its prior Order denying remand (Doc. No. 21) and grants

Plaintiff’s Motion for Remand (Doc. No. 11).

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ORDER – PAGE 19

IV. Conclusion

For the foregoing reasons, the Court grants in part Plaintiff’s Amended Motion 

as to reconsidering the order denying Plaintiff’s Motion to Remand. Having 

reconsidered the prior order denying remand, the Court concludes removal was 

improper pursuant to the forum defendant rule, 28 U.S.C. § 1441(b)(2), regardless of 

whether the fraudulent joinder doctrine extends under these facts to the forum 

defendant rule. Therefore, the Court vacates its Order (Doc. No. 21) denying the 

Motion for Remand and hereby grants Plaintiff’s Motion to Remand (Doc. No. 11). 

Accordingly, the Court remands this case to the Superior Court of New Jersey, 

Middlesex County (Case No. MID-L-006740-21).

SO ORDERED.

Signed December 20th, 2022.

______________________________________

ED KINKEADE

UNITED STATES DISTRICT JUDGE

Case 3:22-cv-00859-K Document 31 Filed 12/20/22 Page 19 of 19 PageID 1787