# CHIPEGO v. ALLERGAN INC.

> District Court, D. New Jersey · January 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10272459

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** January 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10272459

## How later opinions describe it (automated extraction)

- finding courts have construed primary defendants to mean “those defendants who are directly liable to the proposed class, as opposed to being vicariously or secondarily liable based upon theories of contribution or indemnification”

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

NAIDA CHIPEGO,
Plaintiff,
Case No. 2:21-cv-16010 (BRM) (ESK)
v.
OPINION
ALLERGAN, INC., et al.,
Defendants.
MARTINOTTI, DISTRICT JUDGE
Before the Court are Defendants Allergan, Inc. and Allergan USA, Inc.’s (collectively
“Allergan”) Motion for Leave to File an Amended Notice of Removal (ECF No. 11), and Plaintiff
Naida Chipego’s, individually and on behalf of all others similarly situated, (“Plaintiffs”) Motion
to Remand (ECF No. 6). Allergan opposed Plaintiffs’ motion to remand (ECF No. 9), and Plaintiffs
filed a reply (ECF No. 12).1 Having reviewed the parties’ submissions filed in connection with the
motions and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure
78(b), for the reasons set forth below and for good cause having been shown, Allergan’s Motion
for Leave to File an Amended Notice of Removal is GRANTED, and Plaintiffs’ Motion to
Remand is DENIED.

1 Plaintiffs did not file a separate opposition to Allergan’s Motion for Leave to File an Amended
Notice of Removal. Rather, Plaintiffs request the Court accepts their previously-filed remand
motion as an opposition to Allergan’s motion for leave. (ECF No. 12 at 3 n.2.)
I. BACKGROUND2
Plaintiff Naida Chipego and class members are patients who had Allergan’s BIOCELL
textured breast implants and tissue expanders (collectively, “the BIOCELL implants”) surgically
implanted. (Compl. (ECF No. 10-2) ¶¶ 29; 207.) Many of the Plaintiffs are breast cancer survivors

or women having undergone prophylactic mastectomies, who were implanted with the BIOCELL
implants in reconstructive surgery. (Id. ¶ 10.) Plaintiffs allege the BIOCELL implants cause
Breast-Implant Associated Anaplastic Large Cell Lymphoma (“BIA-ALCL”), a cancer of the
immune system that develops in the area around an implant, often between the implant and the
surrounding scar tissue. (Id. ¶ 1.)
BIA-ALCL frequently presents as a late-onset seroma in the breast, which is an
accumulation of fluid between the capsule and the implant, resulting in swelling of the breast.
(Id. ¶ 76.) Left untreated, BIA-ALCL can spread through the body and be fatal. (Id.) Symptoms of
BIA-ALCL can arise even after the implant is removed. (Id. ¶ 77.) Diagnostic procedures for
detecting BIA-ALCL include computed tomography scans, magnetic resonance imaging, and fluid

sampling. (Id. ¶ 78.) BIA-ALCL is treated with surgery to remove the implant and the surrounding

2 The factual and procedural backgrounds of this matter are well known to the parties and were
previously recounted by the Court in a related Multidistrict Litigation matter and associated Class
Action previously filed with this Court. In re Allergan Biocell Textured Breast Implant Products
Liability Litigation, Civ. A. No. 19-02921, 2021 U.S. Dist. LEXIS 52380 (D.N.J. Mar. 19, 2021).
Therefore, the Court includes only the facts and procedural background relevant to the instant
motions. Further, for the purposes of this motion, the Court accepts the factual allegations in the
Complaint as true. See Morton v. Biomet, Inc., Civ. A. No. 18-14506, 2019 U.S. Dist. LEXIS
71861, at *4 (D.N.J. Apr. 9, 2019) (“The allegations of a complaint are assumed true for purposes
of a motion to remand.”); Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010
(3d Cir. 1987) (“Ruling on whether an action should be remanded . . ., the district court must
assume as true all factual allegations of the complaint.”) However, for “disputes over factual
matters related to jurisdiction,” the preponderance of the evidence standard is appropriate.
Frederico v. Home Depot, 507 F.3d 188, 196 (3d Cir. 2007).
capsule and tissue, and may require other treatments such as reconstructive surgery, chemotherapy,
and radiation. (Id.)
This case involves dozens of recalled models of the BIOCELL implants. (Id. ¶ 2.) For over
twenty years, Allergan and its predecessor companies marketed and sold the BIOCELL implants.

(Id. ¶¶ 32–35.) As early as 1997, some women were reported to have developed BIA-ALCL after
receiving the BIOCELL implants. (Id. ¶ 79.) Over the course of the next two decades, the number
of reported cases of BIA-ALCL associated with the BIOCELL implants continued to mount. (Id.
¶¶ 79–83, 92–93.) Through this period, Allergan allegedly concealed the risks of BIA-ALCL by
failing to appropriately submit adverse event reports to the Food and Drug Administration
(“FDA”) or otherwise disclose to the public complete and accurate safety information regarding
the BIOCELL implants. (Id. ¶¶ 147–158.)
On July 24, 2019, the FDA issued a Class I Recall notice of the BIOCELL implants. (Id. ¶
2.) The FDA stated “the risk of BIA-ALCL with Allergan BIOCELL textured implants is
approximately six times the risk of BIA-ALCL with textured implants from other manufacturers.”

(Id. ¶ 4.) The FDA further stated the continued distribution of the BIOCELL implants “would
likely cause serious, adverse health consequences and potentially death from BIA-ALCL.” (Id.)
Allergan recalled the BIOCELL implants after the FDA found the products posed a
heightened risk of BIA-ALCL. (Id. ¶¶ 2–5.) According to the FDA, 246,381 BIOCELL implants
have been recalled in the United States. (Id. ¶ 210.) Plaintiffs claim Allergan does not intend to
provide medical monitoring for class members to mitigate the increased risk of developing BIA-
ALCL caused by the recalled BIOCELL implants. (Id. ¶ 6.) Plaintiffs also claim Allergan will not
pay for the cost of explant surgery to remove the implants. (Id. ¶ 8.)
On July 23, 2021, Plaintiffs filed a putative class action lawsuit against Allergan in the
Superior Court of New Jersey. (ECF No. 1 ¶ 1.) Pursuant to New Jersey Court Rule 4:32, Plaintiffs
define the class as follows:
All New Jersey citizens who, for personal use, implanted FDA-
recalled Allergan Natrelle Saline-Filled Textured Breast Implants,
FDA-recalled Allergan Natrelle Silicone-Filled Textured Breast
Implants; FDA-recalled Allergan Natrelle 410 Highly Cohesive
Anatomically Shaped Silicone- Filled Textured Breast Implants;
FDA-recalled Allergan Natrelle 133 Plus Tissue Expanders; FDA
recalled Allergan Natrelle 133 Tissue Expanders with Suture Tabs;
and/or McGhan BioDIMENSIONAL Silicone-Filled BIOCELL
Textured Breast Implants, Style 153, who were New Jersey citizens
at the time of implant, had their implant surgery in New Jersey, and
who have not been diagnosed with breast implant associated
anaplastic large cell lymphoma.

(ECF No. 10-2 ¶ 207.) Plaintiffs assert their alleged injuries will require specialized testing and
medical monitoring to reduce the risk of long-term disease and loss. (Id. ¶ 25.) Therefore, Plaintiffs
are seeking “an injunction creating a Court-supervised, [Allergan]-funded medical monitoring
program which will facilitate the diagnoses of Plaintiff[s] for BIA-ALCL.” (Id. ¶ 26.) Additionally,
Plaintiffs request Allergan establish a medical monitoring program, including:
(a) establishing a fund, in an amount to be determined, to pay for the
medical monitoring of everyone who received Recalled Breast
Implants for the purpose of diagnosis, as frequently and
appropriately as necessary; and (b) notifying all medical monitoring
class members in writing that they may require frequent medical
monitoring for the purpose of diagnosis.
(Id. ¶ 27.) The Complaint asserts the following causes of action: failure to warn (Count 1);
manufacturing defect (Count 2); design defect (Count 3); violation of the New Jersey Consumer
Fraud Act, N.J. Stat. Ann. § 56:8-1, et seq., (pled as a second Count 3); breach of express warranty
(Count 5); and unjust enrichment (Count 6). (Id. ¶¶ 217–296.)
On August 25, 2021, Allergan filed a notice of removal. (ECF No. 1.) The notice of
removal stated Allergan, Inc. is a citizen of Delaware and Illinois (id. ¶ 6) but was silent as to
Allergan, Inc.’s citizenship at the time the Complaint was filed. On September 24, 2021, Plaintiffs
filed a motion to remand. (ECF No. 6.) On October 18, 2021, Allergan filed its opposition to

Plaintiffs’ motion to remand. (ECF No. 9.) Concurrently, Allergan filed a motion for leave to file
an amended notice of removal. (ECF No. 10.) The amended notice of removal clarified Allergan,
Inc.’s principal place of business was California at the time the Complaint was filed. (ECF No. 10-
2 at 6 of 99, ¶ 7.) On November 8, 2021, Plaintiffs filed a reply in further support of the motion to
remand. (ECF No. 12.)
II. LEGAL STANDARD
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). A defendant may remove any civil action over which a federal court would have original
jurisdiction. 28 U.S.C. § 1441(a); City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997)

(“The propriety of removal . . . depends on whether the case originally could have been filed in
federal court.”); Penn v. Wal-Mart Stores, 116 F. Supp. 2d 557, 561 (D.N.J. 2000). Original
jurisdiction exists where a plaintiff’s well-pleaded complaint presents a federal question under 28
U.S.C. § 1331 or there is diversity of citizenship under 28 U.S.C. § 1332. See Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). Diversity jurisdiction, in turn, exists where “the matter in
controversy [for each plaintiff] exceeds the sum or value of $75,000” and all plaintiffs are “citizens
of different States” than all defendants, i.e., there is complete diversity. 28 U.S.C. § 1332(a); see
also Swiger v. Allegheny Energy, Inc., 540 F.3d 179, 181–82 (3d Cir. 2008).
As a result of these requirements, however, “many” early class actions could not be
litigated in federal courts, “even if those actions implicated matters of national importance
affecting millions of parties from many different states.” Kaufman v. Allstate N.J. Ins. Co., 561
F.3d 144, 148 (3d Cir. 2009). In 2005, Congress enacted the Class Action Fairness Act (“CAFA”),

authorizing “[f]ederal court consideration of interstate cases of national importance” under a less
stringent jurisdictional threshold than § 1332(a). Standard Fire Ins. Co. v. Knowles, 568 U.S. 588,
595 (2013); see also Farina v. Nokia Inc., 625 F.3d 97, 110 (3d Cir. 2010). CAFA vests original
jurisdiction in federal district courts to hear class action lawsuits where the following requirements
are met: (1) the amount in controversy exceeds $5,000,000, as aggregated across all individual
claims, see 28 U.S.C. §§ 1332(d)(2)-(6); (2) the citizenship of at least one class member differs
from that of any defendant, i.e., there is minimal diversity, see 28 U.S.C. § 1332(d)(2)(A); and (3)
the class consists of at least 100 members. See 28 U.S.C. § 1332(d)(5)(B).
Because CAFA strongly favors jurisdiction, see Anthony v. Small Tube Manufacturing
Corp., 535 F. Supp. 2d 506, 512 (E.D. Pa. 2007) (citing Evans v. Walter Industries, Inc., 449 F.3d

1159, 1163 (11th Cir. 2006)), “no antiremoval presumption attends [CAFA] cases.” Dart Cherokee
Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014); cf. Boyer v. Snap-on Tools Corp.,
913 F.2d 108, 111 (3d Cir. 1990) (explaining that, in non-CAFA cases, courts must strictly
construe the removal provisions and resolve all doubts in favor of remand); Steel Valley Auth. v.
Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987) (same). Instead, CAFA “should
be read broadly, with a strong preference that interstate class actions [] be heard in a federal court
if properly removed by any defendant.” Dart, 574 U.S. at 89 (quoting S. REP. NO. 109-14, at 43
(2005)).
Still, even in CAFA cases, the defendant, having removed the matter, bears the burden of
establishing diversity. See Samuel-Bassett v. Kia Motors Am., Inc., 357 F.3d 392, 396, 403 (3d
Cir. 2003) (“The party asserting jurisdiction bears the burden of showing that at all stages of the
litigation the case is properly before the federal court.”); Frederico v. Home Depot, 507 F.3d 188,

193 (3d Cir. 2007); Morgan v. Gay, 471 F.3d 469, 473 (3d Cir. 2006) (“Under CAFA, the party
seeking to remove the case to federal court bears the burden to establish that the amount in
controversy requirement is satisfied.”); Ellis v. Bradbeck, Civ. A. No. 06-0750, 2006 U.S. Dist.
LEXIS 88626, *3 (D.N.J. Dec.4, 2006) (“[T]he party asserting jurisdiction bears the heavy burden
of showing that the case is properly before the federal court.”).
III. DECISION
Before addressing Plaintiffs’ motion to remand, the Court must first determine whether to
accept Allergan’s amended notice of removal.
A. Motion for Leave to File an Amended Notice of Removal
In seeking leave to amend the notice of removal, Allergan asserts the original notice of

removal stated Allergan, Inc. is a citizen of Delaware and Illinois at the time of removal but silent
as to Allergan, Inc.’s citizenship at the time the Complaint was filed. (ECF No. 11 at 2.) In its
amended notice of removal, Allergan attempts to clarify Allergan, Inc. was a citizen of Delaware
and California at the time the Complaint was filed. (Id.)
The procedure for removal is set forth in 28 U.S.C. § 1446. A defendant wishing to remove
files a notice of removal “containing a short and plain statement of the grounds for removal[.]” 28
U.S.C. § 1446(a). “A party may freely amend the notice of removal within the thirty-day period
provided by § 1446(b) to remove an action.” Pickett v. Marriott Int’l, Inc., Civ. A. No. 13-6556,
2014 U.S. Dist. LEXIS 74790, at *5 (D.N.J. Mar. 24, 2014) (citing USX Corp. v. Adriatic Ins. Co.,
345 F.3d 190, 205 n.13 (3d Cir. 2003)). However, after the 30-day period expires, amendment to
the notice of removal “will be permitted only to the extent that it clarifies or corrects an allegation
already contained in the original notice” but not to add a new basis for removal jurisdiction. Id. at
*9 (citing USX Corp., 345 F.3d at 205 n.12 (citing 28 U.S.C. § 1653)); see Fenza’s Auto, Inc. v.

Montagnaro’s, Inc., Civ. A. No. 10-3336, 2011 U.S. Dist. LEXIS 29696, at *31 (D.N.J. Mar. 21,
2011) (“[A]mendments to remedy a ‘substantive defect in the [removal] petition,’ i.e., to add a
new basis for federal jurisdiction, are not permitted.”) (alterations in original) (quoting Blakeley v.
United Cable Sys., 105 F. Supp. 2d 574, 579 (S.D. Miss. 2000)); see also ARCO Env’t
Remediation, L.L.C. v. Dep’t of Health & Env’t Quality, 213 F.3d 1108, 1117 (9th Cir. 2000) (“The
Notice of Removal ‘cannot be amended to add a separate basis for removal jurisdiction after the
thirty day period.’”) (quoting O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1381 (9th Cir. 1988)).
Here, Allergan removed this case on the basis of diversity under CAFA. The original notice
of removal stated Allergan, Inc. and Allergan USA, Inc. both had their principal places of business
in Illinois at the time of removal but was silent as to the entities’ principal places of business at the

time the Complaint was filed. (ECF No. 1 ¶ 6; ECF No. 11 at 2–3.) On October 18, 2021, Allergan
amended its notice of removal and provided a declaration from an Allergan corporate
representative who is “familiar with the operations, corporate structure and business contacts of
Allergan, Inc. and Allergan USA, Inc. throughout the states in which they operate.” (Weith Decl.
(ECF No. 9-5) ¶ 1.) The corporate representative clarified Allergan, Inc.’s principal place of
business was California at the time the Complaint was filed.3 Allergan is not seeking to add a new
basis for removal, but rather to clarify a jurisdictional fact for its original basis of removal. See

3 Allergan, Inc. moved its principal place of business to Illinois on August 1, 2021. (ECF No. 9-
5 ¶ 5.) At the time the Complaint was filed on July 23, 2021, Allergan, Inc.’s principal place of
business was California. (Id. ¶ 4.)
Dando v. Bimbo Food Bakeries Distrib., LLC, Civ. A. No. 14-2956, 2014 U.S. Dist. LEXIS
170570, at *5–6 (D.N.J. Dec. 9, 2014) (“The removing party may amend its notice of removal . . .
in order to clarify the basis for jurisdiction.”); Cnty. of Morris v. State Nat’l Ins., Civ. A. No. 10-
6616, 2011 U.S. Dist. LEXIS 54720, at *2–3 (D.N.J. May 16, 2011) (“[A]mendments to cure

jurisdictional allegations are freely granted.”). Because an amendment to the notice of removal
“will be permitted only to the extent that it clarifies or corrects an allegation already contained in
the original notice,” the Court will accept Allergan’s amended notice of removal. Pickett, 2014
U.S. Dist. LEXIS 74790, at *9 (citing USX Corp., 345 F.3d at 205 n.12 (citing 28 U.S.C. § 1653)).
Accordingly, Allergan’s motion for leave to file an amended notice of removal is GRANTED.
B. Motion for Remand
Plaintiffs move to remand the putative class action, contesting removal jurisdiction on the
following basis: (1) Allergan has not satisfied the minimal diversity requirements under CAFA;
and (2) the home state exception to CAFA applies and favors remand. (ECF No. 6-1.) The Court
addresses each in turn.

1. Minimal Diversity under CAFA
Plaintiffs argue removal is improper because Allergan has not established the minimal
diversity requirement under CAFA. (ECF No. 6-1 at 5.) Specifically, Plaintiffs assert Allergan has
not satisfied its burden to establish Allergan is not a citizen of New Jersey. (Id. at 9.) Alternatively,
Plaintiffs argue Allergan should be judicially estopped from claiming it is not a citizen of New
Jersey. (Id. at 9–11.) Allergan asserts Plaintiffs’ motion to remand is moot because the amended
notice of removal clarifies Allergan’s original basis for removal. (ECF No. 9 at 5–6.) Specifically,
Allergan argues the amended notice of removal stating Allergan, Inc.’s principal place of business
was California at the time the Complaint was filed satisfies the minimal diversity requirements
under CAFA. (Id. at 7–8.) Allergan also contends Plaintiffs’ judicial estoppel request is meritless
because estopping Allergan from supplementing its removal is at odds with the law and the facts.
(Id. at 10.)
“CAFA confers on district courts ‘original jurisdiction of any civil action’ in which three

requirements are met: (1) an amount in controversy that exceeds $5,000,000, as aggregated across
all individual claims; (2) minimally diverse parties; and (3) that the class consist of at least 100 or
more members (‘numerosity requirement’).” Judon v. Travelers Prop. Cas. Co. of Am., 773 F.3d
495, 500 (3d Cir. 2014) (citing 28 U.S.C. § 1332(d)(2), (5)(B), (6); Standard Fire Ins., 568 U.S.
at 592). “With respect to the second requirement, known as the ‘minimal diversity’ requirement,
CAFA provides that [minimal] diversity is satisfied if ‘any member of a class of plaintiffs is a
citizen of a State different from any defendant.’” Gallagher v. Johnson & Johnson Consumer Cos.,
169 F. Supp. 3d 598, 602 (D.N.J. 2016) (quoting 28 U.S.C. § 1332(d)(2)(A)). “To determine
whether CAFA’s subject matter jurisdictional requirements are satisfied, courts consider the
allegations in the complaint at the time of removal and defendant’s notice of removal.” Castro v.

Linden Bulk Transp. LLC, Civ. A. No. 19-20442, 2020 U.S. Dist. LEXIS 90113, at *6 (D.N.J. Apr.
20, 2020) (citing Coba v. Ford Motor Co., 932 F.3d 114, 119 (3d Cir. 2019); Judon, 773 F.3d at
500; Frederico, 507 F.3d at 196); Dougherty v. Drew Univ., Civ. A. No. 21-249, 2021 U.S. Dist.
LEXIS 73138, at *28 (D.N.J. Apr. 14, 2021) (“Generally, courts assess CAFA jurisdiction based
on the pleadings at the time of removal.”).
“Although removal statutes must generally be strictly construed, with any doubt to be
resolved in favor of remand, . . . the presumption against removal does not apply to class actions
invoking jurisdiction under CAFA.” Castro, 2020 U.S. Dist. LEXIS 90113, at *6. Accordingly,
the removing party bears the initial burden of establishing federal subject matter jurisdiction under
CAFA. Id. However, once jurisdiction has been established, “the burden shifts to the party seeking
remand to show that an exception requiring remand applies.” Id. (citing Kaufman, 561 F.3d at
153)); Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 698 (2003) (“[W]henever the
subject matter of an action qualifies it for removal, the burden is on a plaintiff to find an express

exception.”). “If there is no jurisdictional basis under CAFA, the case must be remanded to state
court.” Canseven v. Just Pups, LLC, Civ. A. No. 15-5633, 2015 U.S. Dist. LEXIS 123223, at *2
(D.N.J. Sept. 16, 2015).
Here, Plaintiffs contest only whether Allergan satisfied CAFA’s minimal diversity
requirement. All Plaintiffs in the putative class are citizens of New Jersey. (ECF No. 10-2 ¶ 207.)
Allergan, Inc. is a citizen of Delaware and Illinois at the time of removal and a citizen of Delaware
and California at the time the Complaint was filed. (ECF No. 1 ¶ 6; ECF No. 10-2 at 6 of 99.)
Because CAFA’s diversity requirements are met when one defendant is a citizen of a different
state from one class plaintiff, Allergan established that the Court has subject matter jurisdiction
over the putative class action. See Roche v. Aetna Health Inc., Civ. A. No. 13-3933, 2014 U.S.

Dist. LEXIS 43239, at *8–9 (D.N.J. Mar. 31, 2014) (“[U]nder CAFA’s minimal diversity
requirements, at least one class member must be a citizen of a different state than at least one
defendant.”). To the extent Plaintiffs contend Allergan’s post-filing change in citizenship should
not be considered (ECF No. 6-1 at 7–8), Plaintiffs are drawing a distinction without a difference.
The parties were minimally diverse at the time the Complaint was filed and at removal. Allergan,
Inc. changed its citizenship from California to Illinois in the intervening period. Contrary to
Plaintiffs’ assertions, this is not a case where Allergan unilaterally acted to create diversity that
did not exist at the time the Complaint was filed. See Fry Metals v. Cheng, Civ. A. No. 94-5206,
1995 U.S. Dist. LEXIS 4010, at *6 (D.N.J. Mar. 28, 1995) (finding “the unilateral act of the
defendant cannot create diversity of citizenship that did not exist at the time the complaint was
filed”).
Moreover, to the extent Plaintiffs argue Allergan should be judicially estopped from
asserting Allergan, Inc. is not a citizen of New Jersey (ECF No. 6-1 at 9), Plaintiffs fail to raise a
credible basis for their request.4 Allergan, Inc. was a citizen of Illinois at the time of removal and

a citizen of California at the time the Complaint was filed. (ECF No. 1 ¶ 6; ECF No. 10-2 at 6 of
99.) Allergan produced a corporate representative to attest to the truth and accuracy of the
information. (ECF No. 9-5.) Plaintiffs fail to explain why the Court should reject those
representations and declare New Jersey as Allergan, Inc.’s principal place of business. See North
v. Portfolio Recovery Assocs., LLC, Civ. A. No. 19-17972, 2020 U.S. Dist. LEXIS 81228, at *7

4 Plaintiffs appear to rely on two prior federal pleadings from 2018 involving Allergan—one from
the Western District of Washington claiming Allergan, Inc.’s principal place of business is not in
Washington and another from the Central District of California claiming Allergan USA, Inc. and
Allergan, Inc. are citizens of New Jersey. (ECF No. 6-1 at 4.) However, as the Third Circuit
explained, prior pleadings have no evidentiary value for the purpose of assessing the location of a
corporation’s principal place of business where “[t]he representations made in these pleadings run
contrary to the empirical facts with which the jurisdictional inquiry is concerned.” Mennen Co. v.
Atl. Mut. Ins. Co., 147 F.3d 287, 293 (3d Cir. 1998). Therefore, the 2018 pleadings involving
Allergan “have no intrinsic capacity either to establish or disestablish jurisdiction[.]” Id.; see also
Deluca v. Allstate N.J. Ins. Co., Civ. A. No. 11-4129, 2011 U.S. Dist. LEXIS 95256, at *9 n.1
(D.N.J. Aug. 24, 2011) (holding “other pleadings by [defendant] identified by Plaintiff will have
no bearing on the Court’s decision in this case”); R.R. Constr. Co. of S. Jersey, Inc. v. A.P. Constr.,
Inc., Civ. No. 10-6190, 2011 U.S. Dist. LEXIS 79471, at *10 (D.N.J. July 21, 2011) (holing “the
previous pleadings referred to by Plaintiff . . . have no bearing upon the record or this Court’s
determination of Defendant’s principal place of business in this proceeding.”). Further, to the
extent Plaintiffs aver Allergan’s assertion to the JPML that “[t]he District of New Jersey is where
Allergan is located” is a misrepresentation (ECF No. 6-1 at 10), the Court can square Plaintiffs’
misapprehension. One of the two defendants, Allergan USA, Inc., is located in and a citizen of
New Jersey. (ECF No. 9-5 ¶¶ 7–8.) Without more, the Court is not convinced Allergan is hiding
the true whereabouts of its principal place of business. Accordingly, Plaintiffs fail to demonstrate
that judicial estoppel is warranted. See Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. GMC,
337 F.3d 314, 324 (3d Cir. 2003) (“Judicial estoppel is only appropriate when the inconsistent
positions are tantamount to a knowing misrepresentation to or even fraud on the court.” (internal
citations and quotations omitted)).
(D.N.J. May 6, 2020) (finding “diversity of the parties is evidenced in [the defendant’s] Notice of
Removal” “[b]ecause jurisdictional disputes over factual matters involve only a preponderance-
of-the-evidence standard” (citing Frederico, 507 F.3d at 194)). Accordingly, because the parties
are minimally diverse, CAFA’s subject matter jurisdictional requirements are satisfied.

2. Home State Controversy Exception Under CAFA
Plaintiffs contend the matter should be remanded under the home state exception of CAFA
even if Allergan, Inc. maintains its principal place of business outside of New Jersey. (ECF No. 6-
1 at 11.) Specifically, Plaintiffs assert Allergan USA, Inc. is the primary defendant and because
Allergan USA, Inc. maintains its principal place of business in New Jersey, the home state
exception to CAFA applies. (Id. at 12.) Allergan asserts the home state exception to CAFA does
not apply when at least one primary defendant is not a citizen of the state where the action was
originally filed. (ECF No. 9 at 15, 17–18.) Specifically, Allergan argues because Allergan, Inc. is
a primary defendant but not a citizen of New Jersey, the home state exception to CAFA does not
apply. (Id. at 18.)

“Under [the home state exception], the district court must decline to exercise jurisdiction
where ‘two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and
the primary defendants, are citizens of the State in which the action was originally filed.’”
Gallagher, 169 F. Supp. 3d at 602 (quoting 28 U.S.C. § 1332(d)(2)(4)(B)). For the home state
exception to apply, the party asserting the exception must:
(1) establish that the citizenship of the members of two-thirds or
more of the putative class is the state in which the action was
originally filed; (2) establish the citizenship of the defendants; (3)
identify the primary defendants; and (4) demonstrate that two-thirds
or more of the members of the putative class are citizens of the same
state as the primary defendants.
Vodenichar v. Halcón Energy Props., 733 F.3d 497, 503–04 (3d Cir. 2013) (citing Anthony, 535
F. Supp. 2d at 514–15). “The party seeking to invoke an exception bears the burden of proving by
a preponderance of the evidence that the exception applies.” Id. at 503; Dicuio v. Brother Int'l
Corp., Civ. A. No. 11-1447, 2011 U.S. Dist. LEXIS 131553, at *4 (D.N.J. Nov. 15, 2011)

(“Importantly, the party seeking to remand the suit back to state court bears the burden of meeting
the home state exception requirements.”) (collecting cases).
Notwithstanding, “[t]he home state exception only applies if all of the primary defendants
are citizens of the state in which the action was filed[.]” Livi v. Hyatt Hotels Corp., Civ. A. No.
15-5371, 2017 U.S. Dist. LEXIS 183053, at *12 (E.D. Pa. Nov. 6, 2017) (citing Vodenichar, 733
F.3d at 506). In other words, “a determination that a non-local defendant is a primary defendant
renders the home state exception inapplicable.” Id. (citing Vodenichar, 733 F.3d at 506); Kaufman,
561 F.3d at 149 (“[T]he ‘home-state’ exception[] may apply when the primary defendants and at
least two-thirds of the members of the putative classes are local.”). The Third Circuit provided
guidance for ascertaining “primary defendants” under CAFA, explaining:

courts tasked with determining whether a defendant is a “primary
defendant” under CAFA should assume liability will be found and
determine whether the defendant is the “real target” of the plaintiffs’
accusations. In doing so, they should also determine if the plaintiffs
seek to hold the defendant responsible for its own actions, as
opposed to seeking to have it pay for the actions of others. Also,
courts should ask whether, given the claims asserted against the
defendant, it has potential exposure to a significant portion of the
class and would sustain a substantial loss as compared to other
defendants if found liable.

Vodenichar, 733 F.3d at 505-06; Banks v. E.I. du Pont de Nemours & Co., Civ. A. No. 19-1672,
2021 U.S. Dist. LEXIS 230739, at *12–13 (D. Del. Dec. 2, 2021).
Here, the home state exception does not apply because Allergan, Inc. is a primary
defendant. The Complaint levels claims against both defendant entities, alleging “Allergan, Inc;
[sic] and Allergan USA, Inc. acted in all aspects as the agent and alter ego of each other and carried
out a joint scheme, business plan, or policy in all respects pertinent hereto, and the acts of each
entity are legally attributable to the other entities.” (ECF No. 10-2 ¶ 35.) The Complaint also
ascribes the announcement to recall the BIOCELL implants to Allergan, Inc. (Id. ¶ 30.) The

Complaint further identifies Allergan, Inc. as the party assuming liability for manufacturing the
BIOCELL implants, stating “Allergan, Inc. acquired [the predecessor companies] as well as the
BIOCELL trademark. In doing so, it assumed the liability for the past and present manufacturing
of breast implant products.” (Id. ¶ 34.) If the allegations in the Complaint are proven, Allergan,
Inc. and Allergan USA, Inc. would be directly liable to the proposed class. The allegations appear
to apportion liability equally between Allergan, Inc. and Allergan USA, Inc, and Plaintiffs seek
the same relief—a medical monitoring program—from both defendant entities. See Vodenichar,
733 F.3d at 506 (determining the defendant was a primary defendant where “Plaintiffs allege that
each defendant is directly liable, appear to apportion liability equally among the defendants, and
seek similar relief from all defendants”). Because Allergan, Inc. is a primary defendant but not a

citizen New Jersey, the home state exception is inapplicable. See Mejias v. Goya Foods, Inc., Civ.
A. No. 20-12365, 2021 U.S. Dist. LEXIS 163598, at *20 (D.N.J. Aug. 30, 2021) (holding remand
is unwarranted because Plaintiffs maintain the burden of demonstrating a CAFA exception and
failed to demonstrate the exception applies).
To the extent Plaintiffs argue only Allergan USA, Inc. can be considered a primary
defendant because Allergan, Inc. is merely a holding company with no employees (ECF No. 6-1
at 13; ECF No. 12 at 9), Plaintiffs’ contentions are misplaced. “[C]ourts tasked with determining
whether a defendant is a ‘primary defendant’ under CAFA should assume liability will be found
and determine whether the defendant is the ‘real target’ of the plaintiffs’ accusations.” See
Vodenichar, 733 F.3d at 504. The allegations directed at Allergan, Inc. in the Complaint undermine
the assertion that Allergan, Inc. is not the “real target” of Plaintiffs’ claims. The Complaint levels
allegations against both defendant entities, asserting Allergan, Inc. and Allergan USA, Inc. are
directly liable to the proposed class. (See generally, ECF No. 10-2); see also Vodenichar, 733 F.3d

at 504 (finding courts have construed primary defendants to mean “those defendants who are
directly liable to the proposed class, as opposed to being vicariously or secondarily liable based
upon theories of contribution or indemnification”). Moreover, if found liable and ordered to
establish a medical monitoring program, both defendant entities face potential exposure to a
significant portion of the class and would sustain a substantial loss. Id. (“[C]ourts should ask
whether, given the claims asserted against the defendant, it has potential exposure to a significant
portion of the class and would sustain a substantial loss . . . .”). Because one primary defendant is
not a “citizen[] of the State in which the action was originally filed,” 28 U.S.C. § 1332(d)(4)(B),
the home state exception does not apply.5 Accordingly, Plaintiffs’ motion to remand is DENIED.

5 To the extent Plaintiffs contend Allergan should be judicially estopped from asserting Allergan,
Inc. is a primary defendant because Allergan represented to the JPML that Allergan USA, Inc. is
a primary defendant (ECF No. 6-1 at 14; ECF No. 12 at 9), Plaintiffs’ argument is unpersuasive.
Both Allergan, Inc. and Allergan USA, Inc. are primary defendants. See Anthony, 535 F. Supp. 2d
at 515 (“[T]he plain language of the statute requires remand only when all of the primary
defendants are residents of the same state in which the action was originally filed.” (citation and
quotation marks omitted)).
IV. CONCLUSION

For the reasons set forth above, Allergan’s Motion for Leave to File an Amended Notice
of Removal is GRANTED, and Plaintiffs’ Motion to Remand is DENIED. An appropriate order
follows.
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
Dated: January 14, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10272459. Public record. Not legal advice.