ORDER – PAGE 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TOBI ALTHOLZ, §

§

Plaintiff, §

§

v. § Civil Action No. 3:22-CV-00856-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 Tobi Altholz’s Motion for Reconsideration and to 

Vacate the Court’s Scheduling Order (Doc. No. 12), Emergency Motion for Case 

Management Conference (Doc. No. 13), and Amended Motion for Reconsideration 

and to Vacate the Court’s Scheduling Order (the “Amended Motion”) (Doc. No. 15)

(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. 16) to which Plaintiff filed a reply (Doc. No. 18). 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. 16.

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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. 14). 

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

Middlesex County (Case No. MID-L-006897-21). All other of Plaintiff’s Motions and 

requested relief is hereby DENIED as moot.

I. Factual and Procedural Background

In her Complaint filed in New Jersey state court on or about December 2, 2021, 

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

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

was implanted with a hip replacement device designed and manufactured by the J&J 

Defendants, she suffered substantial injuries and damages due to the defects and 

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

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J&J Defendants. See, e.g., Doc. No. 1-1 at 6-8. On December 30, 2021, the DePuy 

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

Doc. No. 1 at 3. The DePuy Defendants do not dispute the J&J Defendants are 

citizens of New Jersey. Id. at 4. The DePuy Defendants allege the parties’ citizenship 

is completely diverse as Plaintiff is a citizen of either North Carolina or Florida, the 

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

are citizens of New Jersey. Id. at 3-4. 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 4. 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 4-5.

Plaintiff timely filed her Cross Motion for Remand and Opposition to 

Defendants’ Motion to Stay (the “Motion for Remand”) on January 13, 2022. See 

Doc. No. 5. The DePuy and J&J Defendants filed a response in opposition to the 

Motion for Remand on February 15, 2022. See Doc. No. 7. 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. 8 & 9. On November 18, 2022, the Court issued its Order denying 

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ORDER – PAGE 4

Plaintiff’s Motion for Remand (Doc. No. 10), and on November 19, 2022, the Court 

entered its Scheduling Order (Doc. No. 11).

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

12, 13 & 15. 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 (the same court from which this case was 

transferred) which granted motions for remand in thirty-three similarly situated wouldbe member cases of this MDL. See generally Doc. No. 15. 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. 16. On December 7, 2022, Plaintiff filed a reply in further support of her Motions

(Doc. No. 18).

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 

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., 

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ORDER – PAGE 5

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 

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

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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 

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

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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 

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).

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ORDER – PAGE 8

“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 her Amended Motion, Plaintiff moves the Court to reconsider its prior order 

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

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

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

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ORDER – PAGE 9

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.

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 

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ORDER – PAGE 10

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. Nos. 6 & 14; see also Doc. Nos. 10 & 

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. 1 at 4-5. In their Response to the

Motion for Remand, the DePuy Defendants argue “the only jurisdictional question 

before the Court is whether the J&J defendants are fraudulently joined.” Doc. No. 7 

at 12 (emphasis added). Because Plaintiff cannot state a plausible claim for relief 

against the J&J Defendants, the DePuy Defendants argue J&J’s citizenship should be 

disregarded in determining the propriety of the removal. Id. at 8-10. 

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 

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and the J&J Defendants. Doc. No. 1 at 3-4. Therefore, this Court can exercise subject 

matter jurisdiction over this matter. The issue before the Court on the Motion to 

Remand is whether the DePuy Defendants’ removal was improper under the forum 

defendant rule; in other words, 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-CV00363-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 fraudulent 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 

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ORDER – PAGE 12

tension with long-established precedent that the removal statutes are to be strictly 

construed to preserve the limited jurisdiction of federal courts.”).

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). “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 19 (emphasis added); see id. at 18 (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 

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ORDER – PAGE 13

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, 

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 

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ORDER – PAGE 14

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. 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. 1 at 5-12. In making this assertion, the DePuy 

Defendants argue Plaintiff’s claims are governed by the laws of North Carolina, not 

New Jersey as Plaintiff asserts in her state court pleading. See Doc. No. 1 at 6-7. 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)); 

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ORDER – PAGE 15

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 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] whether New Jersey or Texas 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. 7 at 19-20. 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. 15 at 6. Plaintiff’s 

Complaint sufficiently contradicts this point. Specifically, Plaintiff pleads “Johnson & 

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ORDER – PAGE 16

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

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

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

Doc. 1-1 at 4; see also id. at 6-8, 8-9, 12, 17-19, & 28. 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 & 25. 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 instate defendants (despite the pleading of several unavailing claims) requires remand of 

the entire case to state court.”).

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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 

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 

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ORDER – PAGE 18

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 

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. 

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ORDER – PAGE 19

For these reasons, the Court vacates its prior Order denying remand (Doc. No. 10) 

and grants Plaintiff’s Motion for Remand (Doc. No. 5).

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 applies under these facts to the forum 

defendant rule. Therefore, the Court vacates its Order (Doc. No. 10) denying the 

Motion to Remand and hereby grants Plaintiff’s Motion to Remand (Doc. No. 5). 

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

Middlesex County (Case No. MID-L-006897-21).

SO ORDERED.

Signed December 20th, 2022.

______________________________________

ED KINKEADE

UNITED STATES DISTRICT JUDGE

Case 3:22-cv-00856-K Document 20 Filed 12/20/22 Page 19 of 19 PageID 1348