RAYBURN

v.

ALLERGAN SALES, LLC

THIS CAUSE is before the Court on two related matters: (1) the Joint Response of the Parties to Court’s Order to Show Cause Dated June 29, 2021 (Blalock Doc. 23; Rayburn Doc. 21)1 (collectively, the Show Cause Response); and (2) the Report and Recommendation entered on April 22, 2021 by the

Pursuant to Rule 72(b)(2), Federal Rules of Civil Procedure “[w]ithin 14 days after being served with a copy of [a report and recommendation], a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party’s objections within 14 days after being served with a copy.” Defendants Allergan, Inc., Allergan Sales, LLC, and Allergan USA, Inc. (collectively, Allergan) filed objections to the Report. (Blalock Doc. 20; Rayburn Doc. 18) (collectively, the Objections). Plaintiffs Brittany Blalock and Susan L. Rayburn did not file objections to the

Report but did timely respond in opposition to Defendants’ Objections. (Blalock Doc. 21; Rayburn Doc. 19). Accordingly, the Report is ripe for the Court’s consideration. The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). If no

29SPC, 2007 WL 1428615, at * 1 (M.D. Fla. May 14, 2007). Upon review of the Objections, the Court notes Allergan does not object to either the legal standard applied by Judge Toomey or his recitation of the factual background.⁴ Instead, Allergan disagrees with Judge Toomey’s legal analysis and recommended conclusions. Specifically, Allergan contends Judge Toomey reached the incorrect recommendations as to each of the four factors that guide courts in deciding whether to permit the joinder of a non-diverse defendant after a case has been removed to federal court. Objections at 2. Those factors are: “(1) the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether the plaintiff has been dilatory in asking for the amendment; (3) whether the plaintiff will be significantly injured if the amendment is not allowed; and (4) any other factors bearing on the equities.”

Henry v. K-Mart Corp., No. 8:10-cv-2105-T-33MAP, 2010 WL 5113558, at *2

Allergan and other defendants—making the two actions cited by Allergan exceptions, rather than the rule, with respect to Mr. Mojica’s inclusion.⁵ Thus,

Court while motions to dismiss in two exemplar cases—Angell v. Allergan Sales, LLC, No. 3:18-cv-282-MMH-JBT (Angell), and Hicks v. Allergan Sales, LLC, No. 3:18-cv-283-MMH-JBT (Hicks)—were fully briefed and decided by the undersigned. (Blalock Doc. 8; Rayburn Doc. 6). The parties later advised the (Blalock Doc. 21; Rayburn Doc. 19 at 4-5). However, Plaintiffs’ counsel explains that the reason for Mr. Mojica having not been named in those actions had nothing to do with defeating diversity jurisdiction; it is because Plaintiffs’ counsel is representing hundreds of plaintiffs in related actions and has not yet had the opportunity to add Mr. Mojica in a small fraction of them despite the intent to do so. Id. Court that they wished for the stays to remain in place pending an appeal of this Court’s decision in Angell and Hicks to the Eleventh Circuit. (Angell Doc. 72). Because these cases were stayed and administratively closed pending the outcome of the appeal, Plaintiffs had no obligation to seek amendment of their pleadings until the appeal was resolved—i.e., at the earliest, when the motion to dismiss the appeal was filed with the Eleventh Circuit on November 25, 2020.6 Plaintiffs filed their motions for leave to join Mr. Mojica approximately three weeks later and, as noted by Judge Toomey in the Report, “it does not appear unreasonable for Plaintiffs to have waited until after . . . the filing of the motion to dismiss the Angell and Hicks appeals” before seeking to join Mr. Mojica in these actions. Report at 9-10. Allergan’s second objection is due to be overruled. Regarding the third and fourth factors, Allergan reiterates its arguments related to the lack of harm it believes Plaintiffs will suffer by litigating claims against Mojica separately in state court and the harm it contends Allergan will suffer if joinder is allowed—namely, deprivation of Allergan’s choice to defend itself in federal court. After independent review of the file, the Court is persuaded by Judge Toomey’s analysis in the Report and finds both factors

cases identified in Exhibit A to the parties’ Show Cause Response (Blalock Doc. 23-1; Rayburn Doc. 21-1) for purposes of entering this Order, with the Blalock case serving as the lead case. Each consolidated case is to retain its own case number and remain open for

filing purposes. A copy of this Order is to be docketed in each consolidated case and shall be given full force and effect. However, to the extent any of the consolidated cases were previously resolved on other grounds, by mutual agreement or otherwise, nothing in this

Order shall be interpreted as disturbing the finality of orders in those cases.

2. Counsel for all parties are DIRECTED to continue filing documents in the appropriate individual case, as opposed to the lead case. Documents should be filed in the lead case only if they involve issues pertinent to the specific matters addressed in this Order. 3. Defendants Allergan, Inc., Allergan Sales, LLC, and Allergan USA,

Inc.’s Objections to the Report and Recommendation (Blalock Doc. 20; Rayburn Doc. 18) are OVERRULED. 4. The Report and Recommendation (Blalock Doc. 19; Rayburn Doc. 17) is ADOPTED as the opinion of the Court.

5. Plaintiff’s Opposed Motion to Lift Stay, Amend Complaint, Join a Non- Diverse Defendant, and Remand to State Court (Blalock Doc. 10; Rayburn Doc. 8) are GRANTED. 6. The stays previously issued in all of the consolidated cases are

LIFTED, and the Clerk of the Court is DIRECTED to reopen the cases. 7. In these two cases specifically, the Clerk of the Court is DIRECTED to file Plaintiffs’ proposed Amended Complaints (Blalock Doc. 10-4;

Rayburn Doc. 8-4) as separate documents in the respective case. 8. Once the Amended Complaints are docketed, the Court REMANDS the Blalock and Rayburn cases to the Circuit Court for the Fourth

Judicial Circuit, in and for Duval County, Florida, and the Clerk of the Court is directed to transmit a certified copy of this Order to the clerk of that court. Thereafter, the Clerk of the Court is directed to close the Blalock and Rayburn files and terminate any remaining motions and deadlines. 9. All other plaintiffs in the consolidated cases are permitted to file amended complaints joining Ricardo E. Mojica as a defendant. Any such amended complaint must be filed on or before November⁴, 2021. 10. Upon the filing of an amended complaint naming Mr. Mojica as a defendant in any of the consolidated cases, such cases will be REMANDED to the appropriate state court by the assigned judge. DONE AND ORDERED at Jacksonville, Florida, this 10th day of August, 2021.

United States District Judge lc29

Copies to:

Counsel of Record Hon. Timothy J. Corrigan Hon. Brian J. Davis Hon. Harvey E. Schlesinger Clerk of the Court, Fourth Judicial Circuit