BAGLEY v. C.R. BARD, INC.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE: DAVOL, INC./C.R. BARD,
INC., POLYPROPYLENE HERNIA
MESH PRODUCTS LIABILITY
LITIGATION
This document relates to:
Bagley v. C.R. Bard, Inc.,
Case No. 2:25-cv-469
Case No. 2:18-md-2846
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson
ORDER
This matter is before the Court on Plaintiff James Bagley’s Motion to Remand1 the case to
state court. (ECF No. 4.) That Motion is fully briefed and ripe for consideration. For the reasons
below, Mr. Bagley’s Motion to Remand (ECF No. 4) is GRANTED.
Mr. Bagley is a citizen of Virginia. (Notice of Removal, ECF No. 1, ¶ 4.) Defendant C.R.
Bard, Inc. (“Bard”) is a citizen of New Jersey, where it is incorporated and maintains its
principal place of business. (Id. ¶¶ 5, 6.)
On March 14, 2025, Mr. Bagley filed an action against Bard in the Superior Court of New
Jersey, asserting a products liability claim under New Jersey law for injuries resulting from a Bard
hernia mesh device that was implanted in Mr. Bagley. (Id. ¶ 1.) That same day, Bard removed the
case to federal court (Id. ¶ 13), and it was transferred to this Court from the District of New Jersey.
1 Plaintiff filed this Motion as a Motion for Remand. That said, “[t]he ultimate authority for
remanding an action transferred for multidistrict litigation lies with the [Judicial Panel on
Multidistrict Litigation (“JPML”)] itself.” In re Methyl Tertiary Butyl Ether Prods. Liab. Litig.,
No. 04 Civ. 4968 (VSB), 2017 WL 5468758, at *2 (S.D.N.Y. Nov. 13, 2017); see also 28 U.S.C.
§ 1407(a). The Court will therefore treat the Motion as a Motion for Suggestion of Remand
under JPML Rule 10.1(b)(i).
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(ECF No. 5; MDL ECF No. 887.) Mr. Bagley filed the instant Motion to Remand (ECF No. 4) on
April 10, 2025.
“[D]istrict courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between
. . . citizens of different States.” 28 U.S.C. § 1332(a). “[A]ny civil action brought in a State court
of which the district courts of the United States have original jurisdiction, may be removed by
the defendant or the defendants, to the district court of the United States for the district and
division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). A defendant
who removes a case to federal court carries the burden of establishing federal jurisdiction. Coyne
v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) (citations omitted).
Mr. Bagley and Bard do not dispute that they are diverse parties and that the amount in
controversy exceeds $75,000. Instead, Mr. Bagley submits that removal of this case was
improper under the forum defendant rule, set forth in 28 U.S.C. § 1441(b)(2), because Bard is a
citizen of New Jersey. (See Mot., ECF No. 4-1, PageID 38–40.) Bard responds that removal was
proper because Mr. Bagley did not serve Bard before it removed the case, and the plain language
of section 1441(b)(2) permits a defendant to remove under such circumstances. (Opp., ECF No.
13, PageID 21.) As set forth below, the Court agrees with Mr. Bagley.
This dispute hinges on the propriety of “snap removal.” The Court begins by noting that
Congress’s strong disfavor of removal requires courts to construe removal statutes narrowly to
limit federal court jurisdiction. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09
(1941) (explaining that removal statutes should be narrowly construed because they implicate
federalism concerns). The defendant bears the burden of proving its right to a federal forum, and
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courts should resolve all doubts in favor of remand. Ethington v. Gen. Elec. Co., 575 F. Supp. 2d
855, 860 (N.D. Ohio 2008) (citations omitted).
Bard argues that removal is proper based on the plain language of 28 U.S.C. § 1441(b)(2),
which reads in pertinent part:
A civil action otherwise removable solely on the basis of the jurisdiction under
section 1332(a) of this title may not be removed if any of the parties in interest
properly joined and served as defendants is a citizen of the State in which such
action is brought.
28 U.S.C. § 1441(b)(2) (emphasis added). Deriving from this statute is the “forum defendant
rule,” which “reflects the belief that even if diversity exists, a forum defendant—a defendant
who is a citizen of the state in which it is sued—has no reason to fear state court prejudice.”
Gordon v. Goodyear Tire & Rubber Co., No. 5:21-cv-1097, 2022 WL 34069, *4 (N.D. Ohio Jan.
3, 2022) (citation modified). But Bard contends that the plain text of the statute permits a forum
defendant to remove an action so long as it has not been “properly joined and served” at the time
of removal. And because Mr. Bagley failed to serve Bard before Bard’s removal of the case,
Bard asserts that the removal was proper. Bard further directs the Court’s attention to dicta from
the Sixth Circuit, decisions from other courts of appeals, and decisions from other district courts
suggesting that “snap removal” is permissible for the same reason. (Def. Opp., PageID 27–29.)
Mr. Bagley, on the other hand, argues that “snap removal” is inconsistent with
congressional intent. (See Mot., PageID 38–41.) In addition, Mr. Bagley accurately notes that all
the decisions that Bard relies on to establish that “snap removal” is proper are nonbinding on this
Court. (See id., PageID 46.)
Contrary to those nonbinding decisions, “[t]he better course of action—and the course
this Court will take—is to follow in the footsteps of a substantial number of the District Courts
within the Sixth Circuit.” Grimm Sci. Indus., Inc. v. Foam Supplies, Inc., No. 2:22-cv-1477, 2022
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WL 16569213, at *5 (S.D. Ohio Nov. 1, 2022). The Northern District of Ohio, in a case factually
identical to this one in all relevant respects, issued a decision that offers a particularly
enlightening explanation of Congress’s intent regarding its enactment of 28 U.S.C. § 1441(b).
See Ethington, 575 F. Supp. 2d at 861. The purpose underlying the “joined and served” language
in section 1441(b)(2) is “to prevent gamesmanship by plaintiffs, who might name an in-state
defendant against whom he or she does not have a valid claim in a complaint filed in state court
to defeat otherwise permissible removal by the non-forum defendant(s).” Id. (citations omitted).
The court further noted that, because savvy defendants monitoring state dockets would be able to
remove before service is perfected, permitting “snap removal” would “eviscerate a plaintiff’s
well-established right to choice of forum, by essentially precluding a plaintiff from ever being
able to litigate a case in the defendant’s own home state courts if the defendants are sophisticated
litigants.” Id. The Ethington court thus declined to allow “snap removal” by the unserved forum
defendant in that case. Id. at 864.
For the same reasons, after careful review of the law in the Sixth Circuit and in an effort
to effectuate congressional intent, this Court finds that Bard’s removal of this case from state
court to federal court was improper.
Accordingly, the Court GRANTS (ECF No. 4) Plaintiff’s Motion to Remand. It is hereby
ORDERED that the Court SUGGESTS to the JPML that this action be remanded to the
transferor court, which may then remand it to the Superior Court of New Jersey.
IT IS SO ORDERED.
3/17/2026 	s/Edmund A. Sargus, Jr.
DATE 	EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE
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