the Gillette Company

This case is not covered by Casetext's citator
United States District Court, D. New JerseyNov 30, 2005
Civil Action No.: 05-CV-3673 (JLL), Civil Action No.: 05-CV-3706 (JLL). (D.N.J. Nov. 30, 2005)

Civil Action No.: 05-CV-3673 (JLL), Civil Action No.: 05-CV-3706 (JLL).

November 30, 2005


BY: STEPHEN SOHMER, ESQ. (Sohmer Law Firm, LLC) Fairfield, NJ,

BY: ANTHONY VOZZOLO, ESQ. (Faruqi Faruqi), New York, NY.


ROBERT BARTKUS, ESQ., (Dillon, Bitar Luther), Morristown, NJ.



This Court had referred Plaintiff's motion [3] to remand these consolidated civil actions back to the Superior Court of New Jersey, Law Division, Bergen County, to the Honorable Ronald J. Hedges, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed de novo the Report and Recommendation of October 5, 2005, and having considered Defendant's objections to the Report as well as Plaintiffs' response to Defendant's objections, this Court concludes that the action should be remanded to the Superior Court of New Jersey, Law Division, Bergen County as there was a procedural defect in the Defendant's removal. The attached Report and Recommendation of the United States Magistrate Judge is adopted and incorporated as the Opinion of this Court.

IT IS on this 30th day of November, 2005.

ORDERED that the Report and Recommendation of Magistrate Judge Hedges filed October 5, 2005, recommending that these civil actions be remanded, is hereby ADOPTED as the findings of fact and conclusions of law of this Court; and it is further

ORDERED that Civil Action Nos. 05-CV-3673 and 05-CV-3706 are hereby remanded to the Superior Court of New Jersey, Law Division, Bergen County.

This case is CLOSED.


This matter having come before the Court on motions to remand these consolidated civil actions to the Superior Court of New Jersey; the Court having considered the papers submitted in support of and in opposition to the motion and having heard oral argument on September 12, 2005; for the reasons set forth in the attached transcript; good cause appearing;

IT IS ORDERED that the alternative relief sought by defendant Gillette Company to defer a ruling on the pending motion to remand is DENIED;

IT IS HEREBY RECOMMENDED that these consolidated civil actions by remanded.

Pursuant to Local Civil Rule 72.1(c)(2), the parties have ten (10) days from receipt of this Report and Recommendation to file and serve objections.

THE COURT: All right. Let's do Delre and — what's the related case — Vereb.

Your appearances, gentlemen.

MR. SOHMER: Good morning, Your Honor. Stephen Sohmer and Anthony Vozzolo for the plaintiffs.

MR. BARTKUS: Good morning, Your Honor. Robert Bartkus of Dillon, Bitar Luther for the defendant, Gillette Company.

THE COURT: Okay. As an initial matter, gentlemen, I understand we have a motion to remand here. I also understand that there's an alternative relief sought by the defendant, which would defer a ruling on this motion until the MDL had an opportunity to address this.

I appreciate the argument, Mr. Bartkus, but whether or not the case is properly removed is something that can easily be addressed here rather than await decisions by other Courts that possibly will just create conflicts in anything.

So, that part of the application is denied. Let's proceed with the motion.

Let me hear from the plaintiff first.

MR. BARTKUS: Your Honor, could I just ask the Court to look at the case cited by defendants, the Nekritz (phonetic) case by Judge Debevoise, and that was a case in which the parties moved to remand and also for a stay concerning securities litigation.

The Court found that a stay was appropriate because, in part, the plaintiff already had agreed to a certain aspect of the stay and that the Court then denied the motion for remand without prejudice because, as here, there were other cases around the country raising similar issues about jurisdiction under the Securities Act here, 1332.

and the Court found, Judge Debevoise found that it was more appropriate for a single judge, once the case was consolidated in the MDL proceedings, to decide all of those issues in all of those cases at once rather than having different decisions in different Courts around the country.

THE COURT: I appreciate that, Mr. Bartkus, but the difference between that case; and this one, frankly, is the jurisdictional basis. That's a federal securities claim where there will be, presumably, uniformity and a need for uniformity, but here we've got removal on diversity of citizenship.

We're looking to New Jersey law as well as the law of the Third Circuit, and I looked at the papers, I appreciate what the issues are. I don't see any need to wait, so I appreciate the argument advanced by the defendant.

Let's talk about the merits of the remand.

MR. BARTKUS: May I ask one other thing? I apologize.

THE COURT: Okay, Mr. Bartkus.

MR. BARTKUS: My understanding is that this case is here requested by Judge Norris on a request for an RR from Your Honor —

THE COURT: That's correct.

MR. BARTKUS: — as opposed to an opinion. Thank you.

THE COURT: Right. I don't have remand authority of the case. The matter is case dispositive, according to Third Circuit law, Mr. Bartkus, so it would be by an RR.

MR. BARTKUS: Thank you.

THE COURT: Okay. Gentlemen, this is not a case about a fifteen-dollar raise, so let's disabuse ourselves about that. Let's talk about what really is an issue here.

What is the potential size of the class?

MR. VOZZOLO: Well, Your Honor, this is Anthony Vozzolo. We're not necessarily sure of the size of the class. We haven't had an ability to seek discovery yet on the —

THE COURT: Well, give me some guess, educated guess.

MR. VOZZOLO: It's got to be in the — you know, to be honest with you, I have no idea. I mean, it's got to be in the thousands, ten thousand, twenty thousand. I mean, we really have no — no way of determining the actual size of the class but I would imagine it's fairly large.

THE COURT: And I take it your argument is that the removal was untimely, and I think Mr. Bartkus concedes it's untimely unless a decision of the Supreme Court in Exxon/Mobil somehow constitutes a, quote, "paper" for the purpose of the removal statute, correct?

MR. VOZZOLO: Correct, Your Honor. I feel, you know, according to 1446, defendant was required to file a removal notice within 30 days. The Exxon decision came out four and a half months after service of process. To obtain the removal remedy defendants are seeking, they claim that Exxon somehow constitutes another order or paper under second paragraph of 1446B.

THE COURT: Wait a minute. Mr. Bartkus, you're not — you're conceding, I take it, aren't you, that but for the Supreme Court opinion this case is unremovable?

MR. BARTKUS: We decided not to remove the case at the time, during the initial 30 day window, because the Third Circuit was very clear that in this circuit Zahn (phonetic) controls.

THE COURT: I understand — I understand the argument. I don't want to hear the argument from the defendant yet. All I want is your agreement that but for Exxon/Mobil the case is not removable on a procedural basis because more than 30 days expired.

MR. BARTKUS: On the Zahn basis, but not on other basis, yes.

MR. VOZZOLO: Your Honor —

THE COURT: Wait a minute.

MR. VOZZOLO: I'm sorry.

THE COURT: What other basis are there to remove a case beyond 30 days? Just tell me what the basis are.

MR. BARTKUS: I just wanted to make clear the Zahn basis we understand to be a nonjurisdictional basis. It doesn't go to 1332.

THE COURT: It goes to —

MR. BARTKUS: The case would have been —

THE COURT: It a procedural —

MR. BARTKUS: — removable under 1332.

THE COURT: It's a procedural defect in removal.


THE COURT: There's no question about that. They made the motion for a remand within the 30 day period to move to remand, so they haven't waived that defense.


THE COURT: Okay, but you agree with me that but for Zahn — but for the Exxon/Mobil case, there is a procedural defect in removal here?


THE COURT: So, if Exxon/Mobil does not constitute an order or paper under the statute, the case should be remanded?

MR. BARTKUS: Correct.

THE COURT: Okay. All right.

MR. VOZZOLO: Your Honor, I —

THE COURT: So, I understand the argument with regard to this.

MR. VOZZOLO: Well, I think that is a hurdle that defendants simply can't overcome.

THE COURT: Well, the defendant doesn't cite anything from the Third Circuit that takes the position that the Supreme Court opinion is control — is an order of paper, does it?

MR. VOZZOLO: No, it — well, it cites a Doe case but the Doe case is very distinguishable. In the Doe case, which involved federal question jurisdiction as opposed to diversity, the District Court issued a remand order but specifically left in the remand opinion the right to remove if the subsequent case law changed on the federal charter regarding the Red Cross.

So, we have a situation where you have identical defendants. The Third Circuit noted that Red Cross was a critical defendant in both cases. You have a District Court remand opinion that specifically allowed the right to seek removal based on subsequent case law.

In this case, Exxon is unrelated. Gillette is not a defendant in Exxon. They are not the same defendants. There was no order issued by any Court which allowed the defendants to seek the re-removal based on subsequent case law. In that hurdle, I think defendant simply can't get over that hurdle.

If you — if Your Honor would like to get into the merits of some of the other arguments, I'll be more than happy to discuss it.

THE COURT: We are going to do that. I wanted to talk about this first issue, Counsel.


THE COURT: All right. So, I understand your argument with regard to the procedural defect. The defendant relies on theDoe opinion in the Third Circuit. I don't know that it's relevant whether that was a federal question case or not but, certainly, there are distinguishing facts, as you've described them, that the underlying case in the Third Circuit was related or the parties were related to what was before the Supreme Court, and there was also a reservation of removal, whatever effect that might have been.

The Third Circuit apparently thought it was sufficient to allow removal to take place, so I understand what your argument is in that one.

Let's talk about the two grounds that the defendant really advances on substantive measures, if you will, to remove. One the injunctive relief, if you will, with regard to what, disgorgement?


THE COURT: Well, there's disgorgement and there's the injunctive relief.

MR. VOZZOLO: There's two arguments defendants are making. One is that the injunctive relief can somehow be viewed from the defendant's point of view, a vantage point which has been rejected by the Third Circuit.

As a matter of fact, Mr. Bartkus has written an article for the Law Journal of New Jersey which advocates the opposite position he's actually taking in this case, and that was written in July. I have a copy of the article here. So, he's asking Your Honor —

THE COURT: Mr. Bartkus is a very prolific write on federal procedure. I understand.

MR. VOZZOLO: So, Mr. Bartkus is arguing that you could look at the — the either viewpoint, which are basically arguments from other Circuits, despite the Third Circuit holding that you look at it from the vantage point of the plaintiff, so I feel that that argument is simply unwarranted under the present circumstances.

Under the strict construction of the remand statute, I think any doubt should be resolved in favor of remand in favor of the plaintiff, so I think that argument is easily disposed of, given the Third Circuit's, you know, bold —

THE COURT: Looking to the viewpoint of the plaintiff.

MR. VOZZOLO: Exactly.

THE COURT: All right. Now, that deals with your request for injunctive relief, assuming you're correct. Now, what about disgorgement?

MR. VOZZOLO: Well, Your Honor, disgorgement, I think defendants are trying to pick up cases which point to some ambiguous cases around the country.

THE COURT: Nothing in the Third Circuit.

MR. VOZZOLO: Nothing in the Third Circuit from what I can recall. The gist is plaintiff's aren't seeking some — some isolated fund, and the majority of the cases that discuss this exception to the Schneider (phonetic) rule involve cases involving a single raise or there's some comment or undivided interest.

Here, what plaintiffs are seeking are individual transactions. The disgorgement or the unjust enrichment claims are seeking the profit per each individual transaction. There's no global fund. Defendants weren't defrauded as a group; they were defrauded as individuals, and I'm sure defendants will have quite a bit of statements to make on the class certification motion on that aspect, but they weren't defrauded as a group. This is not a common undivided interest. Regardless of how this —

THE COURT: Which makes class certification very questionable in this case, don't you think, Counsel?

MR. VOZZOLO: Well, you know, we'll make those — you know, we'll deal with it at that —

THE COURT: I know, I'm just asking in the — in the event it's here.

MR. VOZZOLO: Well, I mean, I think there's a common theme underlying the various advertisements Gillette is util-izing, you know, they make a focal point of the ability of the razor to raise the hair on the face at an angle, make the hair stand up. That common theme is transgressed through the print advertisement, the radio advertisement.

THE COURT: But isn't there a reliance issue there then that's going to have to be decided on an individual basis?


THE COURT: Oh, never mind, this is just academic grumbling. We'll leave that aside for now.

All right, so I understand your argument is that the Third Circuit law in this area is rather clear, that you don't look either for the injunctive relief or for disgorgement by the defendant's viewpoint or through some type of aggregation but, rather, it's got to be determined individually and when you look at things individually, we're not above the amount in controversy.

MR. VOZZOLO: No, it's hard to imagine how you transform a $15 — although, you know, it's much more complicated than simply — but the maximum relief afforded per individual plaintiff will be nowhere near the jurisdictional amount to satisfy federal question, federal —

THE COURT: I think you're correct about that. So, the case is removable only if we somehow can aggregate —

MR. VOZZOLO: Exactly.

THE COURT: — the injunctive and the disgorgement remedies being sought and attribute them all to the defendant.

MR. VOZZOLO: You hit it right on the head, Your Honor.

THE COURT: Okay, I think I understand the issues for the plaintiffs. Okay, Mr. Bartkus, let's talk about Third Circuit law and injunctive relief. Doesn't the Third — hasn't the Third Circuit spoken clearly on this issue?

MR. BARTKUS: The case I look at is the Packard case. I think that says that where the primary relief is not injunctive relief. You can't try to twist a case for damages into an equitable or injunctive case and, therefore, using the term of injunctive relief change the rule the Third Circuit has about pro rata distribution allocation of damages among all plaintiffs.

THE COURT: Yes, but there's nothing to distribute pro rata here. As Counsel says, there's no common fund.

MR. BARTKUS: What we have here is a case where, and again, it's different from Packard and other cases that the Third Circuit has — has addressed. It's much more like the Microsoft case and the diet drug case, and I think there's a case in the Second Circuit that is cited by the Gilson (phonetic) case, by the plaintiffs, I think it's the Breward where there will be no relief to any plaintiff unless there is relief to all.

That's — and that's the situation, for example, in the diet drug case where the Court — where the plaintiffs asked for a medical monitoring fund and the research necessary to get that fund up and going.

THE COURT: Yes, but this is not a medical monitoring case.

MR. BARTKUS: It isn't, you're right, Your Honor, but there is a cost that the defendants will need to incur to revive the relief requested by the plaintiff, whether it's one plaintiff or a million plaintiffs in a class. It is possible that the plaintiff here could have sued for injunctive relief as an individual rather than class representative and, in that case, Gillette would have — and if they were successful, Gillette would have been required to bear the cost of changing its advertising, which the plaintiff agrees is more than $75,000 for that plaintiff. The fact that there is —

THE COURT: No, there's no question that if we can aggregate here the case is removable, and I don't understand the plaintiff to contest that, isn't that right, gentlemen?

MR. VOZZOLO: Your Honor, absolutely. Basically, every position defendants are taking is contrary to the Schneider case.

THE COURT: Let's leave that alone.


THE COURT: All I asked is a concession —

MR. VOZZOLO: No, exactly, I agree —

THE COURT: All right.

MR. VOZZOLO: — that what they need to do is aggregate all of the relief that we're requesting.

THE COURT: All right, that's what I care about. All right, I understand the argument. This is very simple in the sense either the Third Circuit allows "aggregation" which means measuring things from defendant's point of view or the Third Circuit doesn't. I understand your position, Counsel.

MR. BARTKUS: Except in a situation where if there's no relief for one, there's no relief for all, and that's dif-ferent from all the Third Circuit cases that I read. Most — the clearest one in the Third Circuit is the fund created for the benefit of all the class, which plaintiff could not benefit from unless it established the entire class. That's different from damages.

The notion of aggregation is that each plaintiff has a separate injury which must be dealt with individually, and you can't bring all of those together and put them on the plaintiff's — the representative plaintiff's shoulders. That's artificial, but it's just as artificial to say that a — an injunctive relief that is only effective if it's effective for all must be pro rata allocated among everybody.

THE COURT: But how do you get beyond the language in Packard that says:

"In a diversity based class action seeking primarily money damages allowing the amount in controversy to be measured by the defendant's cost would eviscerate Schneider's holding that the claims of class members may not be aggregated in order to meet the jurisdictional threshold."

MR. BARTKUS: Because it's the fact that — we're not talking about individual costs as in Packard to send out notices to the various class members. That's individualized costs for injunctive relief, which is just like damages. Here, we're saying much more like setting up a fund. Defendant has to establish a program, not individualized as to plaintiffs, but for the entire nation, people who would not be part of the plaintiff class, and it's very different and it's much more like setting up a medical monitoring fund, doing the research necessary to set up a medical monitoring fund.

It can't ever be allocated or divided or apportioned per plaintiff. It doesn't change if there's one plaintiff or a million. It's always going to be the same cost, and that's very different from Packard.

THE COURT: All right. Anything else from the plaintiff?

MR. VOZZOLO: Yes, Your Honor. Basically, what defendants are arguing that this Court should ignore is the clear Third Circuit case law and under the strict construction of the removal statute, that simply is not permissible. They're arguing that you should adopt the various laws around the country but it's fairly distinguishable. It's unlike a medical monitoring fund.

What's missing here is Mr. Bartkus is suggesting that you look at it in light of the defendant's point of view and that point of view is simply not permissible in this Circuit. I think the questions are very easily answered.

THE COURT: Well, I understand that but the language I quoted says, "In a diversity action where the plaintiff is seeking primarily monetary relief."

MR. VOZZOLO: Well, I —

THE COURT: You're not seeking primarily monetary relief, you're seeking equitable relief here, aren't you?

MR. VOZZOLO: Well, Your Honor, I don't necessarily agree with that. I think we're seeking primarily monetary relief. The injunctive relief sought is fairly simple. They sat — they refrained from making the — the message that is deceptive that we allege in the complaint, to simply delete it from their next sales brochures that they distribute to the public.

THE COURT: So, that's a cost issue that under the Third Circuit precedent is not something that we can look to from the defendant's point of view.

MR. VOZZOLO: Exactly.

THE COURT: What about disgorgement?

MR. VOZZOLO: Well, disgorgement, I think it's — there's a little bit of overlap in the discussion. The basis of the disgorgement in the — what it actually is an unjust enrichment claim, and if you look back to the history about unjust enrichment, what you're basically asking the Court to do is to get back the property that the defendants have — have taken.

THE COURT: I'm familiar with the claim but isn't it —

MR. VOZZOLO: No, no, what —

THE COURT: — isn't it equitable in nature, disgorgement?

MR. VOZZOLO: It is equitable in nature but the — the amount that you're getting is a monetary sum. You're seeking the profits but it equates to a monetary amount. The point I was making if that you're not creating this — this somehow uncommon, undivided fund.

What you're seeking is the disgorgement per each individual transaction. So if you bought two razors, you'd be seeking a profit of those two particular razors as opposed to the named plaintiff seeking disgorgement of the entire —

THE COURT: Let me ask you this. If one of these two plaintiffs was bringing this action just on his own behalf and not as a class representative and he got all the relief he wanted, injunctive relief would be the same whether there was a class action or not because the injunction you would be seeking would be to bar the defendant from engaging in misleading advertising, is that right?

MR. VOZZOLO: Correct.

THE COURT: Okay, but what would — his disgorgement remedy, I take it, would be limited to what he gets back.

MR. VOZZOLO: Yes, and it would be based on his individual purchase, so if he purchased a $15 razor, there's a certain amount of profit in that $15 that he would be seeking. I don't think it's permissible for him to obtain the entire amount that Gillette has made off the sale of the product around the country.

THE COURT: All right. Okay, anything else for the defendant?

MR. BARTKUS: The disgorgement claim, Your Honor, I think is, based on again the agreement by the plaintiff that it's more than $75,000. I can't tell you how much it would be because no one has asked, no one has calculated what the profits are —

THE COURT: I think we can assume —

MR. BARTKUS: — but we're talking about a very large class.

THE COURT: I think we can assume that if I allow aggregation the amount in controversy is satisfied and the defen — the plaintiff said that already. The issue is whether I allow it or not.

MR. BARTKUS: Plaintiff also agrees that if the kind of unjust enrichment profit disgorgement that is New Jersey Law is the same as the unjust enrichment profit disgorgement that was held to be nonattributable — or attributable and non — and aggregable in theMicrosoft case, then we win.

There was, I thought, a major concession. They agreed with exactly the distinction that we were making because that's what Microsoft said. Where, under State law, unjust enrichment remedy of profit disgorgement is not, plaintiff by plaintiff by plaintiff, is not a measure of each plaintiff's damages but rather is some other concept than your — in theMicrosoft case it's not an issue of aggregation or nonaggregation, it is an equitable remedy, it is a full sum. You could call it a common fund. The problem with using that word is that too much sends you back to notions of establishing a common fund for settling of the case or a common fund based on damages.

The New Jersey case in the Appellate Division, it's the best case that we know of on that, on this issue, the County of Essex case says in — in many different ways unjust enrichment profit disgorgement has nothing to do with damages. It has nothing to do with individual plaintiff's loss, it is there to punish the defendant for all the unjust, improper gains it had.

Now, in that case, the County of Essex case, it's particularly interesting because there the jury found, if I remember correctly, that there was no loss by the plaintiff. The Court still awarded large unjust enrichment profit disgorgement, a full disgorgement as the Court described it, because the nature of profit disgorgement in New Jersey, under New Jersey law, is not item by item, plaintiff by plaintiff lost damages. It's not a damage issue. Over and over again that Court says profit disgorgement is not damages.

Now, we haven't researched the point, we haven't been asked to address it, but we originally thought, based on the complaint and the clause, paragraph — or page 13, that plaintiff was seeking all profits earned by Gillette, whether it's by members of the class or not.

Now, we all know that we're governed by the allegations in the complaint and that's what the plaintiff asked for, all profits, not some.

Now, in its first moving papers the plaintiff also said we expect that — to get all profits. They didn't narrow it to only profits that are really the same thing as damages. It's only once they saw some of our cases and they started thinking about it they decided to change their tune.

Now, Your Honor, they can't do that.

THE COURT: Well, I understand —

MR. BARTKUS: They have a fiduciary duty.

THE COURT: I understand what their obligations are with regard to pleadings and I understand what they can and cannot do in a brief, so I appreciate the argument, Mr. Bartkus. The — I appreciate the argument. The question before me in the civil actions is whether these matters should be remanded to the Superior Court of New Jersey.

I indicated before argument began that I reviewed the defendant — the defendant's alternative motion which is for a stay pending some MDL resolution of this matter and, as I indicated previously, I see no reason for a stay. The issues before me are crystallized. I see nothing before me that calls for some uniformity at a national level to be done by an MDL Court.

So, having done that, the request for a stay is denied, and let me proceed to address the remand. I appreciate the arguments, Mr. Bartkus, thank you. Thank you, Mr. Bartkus, I understand the arguments.

These matters will filed in the Superior Court of New Jersey on February 10, 2005. In the complaints, class action allegations are made for violations of the New Jersey Consumer Fraud Act and also based on principles of fraud and the inducement and unjust enrichment. The complaints were served on the defendants not later — on the defendant not later than March 3, 2005.

Defendant's petition for removal was filed on July 22, 2005, at least four months after service. Plainly, the period to remove began to run at time of service of the complaint.

I note in the first instance that diversity of citizenship exists. The question really before me is amount in controversy.

Defendant's substantive argument, if you will, for removal centers on whether or not aggregation of claims is permitted or, as stated in the briefs and the law, whether the amount of controversy should be looked at from the viewpoint of the plaintiff or for the defendant.

Plaintiff advances arguments based on what plaintiff says are the plain law of the Third Circuit with regard to aggregation. Defendant argues that given the relief sought, aggregation is appropriate here. I need not address these issues for the simple reason that I am satisfied that there was a procedural defect in removal and that the matter should be remanded.

The removal papers are based on the decision of Exxon/Mobil Corporation v. Alapata Services, Inc. (phonetic), 125 Supreme Court 2611, decided on June 23, 2005. Defendant's argument is that Exxon/Mobil constituted a sufficient change in the law or the like to constitute an order or other paper within the meaning of the second paragraph of Section 1446B. I disagree.

Plaintiff relies on the Doe opinion from the Third Circuit Court of Appeals, Doe v. American Red Cross, 14 F.3d 196 (3rd Cir. 1993). The opinion of the Third Circuit in Doe, where a Supreme Court decision was considered to be sufficient to run the removal period again, was premised on a rather unique situation where the same party was a defendant in both matters, where there were similar factual situations and where the District Court opinion explicitly authorized removal based on subsequent Supreme Court opinion.

We have none of those facts here. There is no commonality in facts, there are no commonality in parties and there were certainly no underlying order from the District Court permitting removal.

The case law is rather plain and unambiguous that orders or other papers do not encompass Supreme Court opinions. See, for example, Marsani v. Major League Baseball, 79 F.Sup. 2d, 1331-1333, (Middle District of Florida 1999), Johanson v. Employee Benefit Claim, 668 F. Sup. 1294-1296 (District of Minnesota 1987).

I'm satisfied that there was a procedural defect in removal. I also note that the arguments advanced on the merits of the removal with regard to aggregation are arguments that could have been invoked and might have been invoked within the original 30 day removal period.

I will have the transcript prepared, gentlemen. I will attach a report and recommendation that the matter be remanded to Judge Linares and you can take these matters up with Judge Linares.

I'll also consolidate both cases for purposes of the motions to remand.

All right. Thank you, gentlemen.

MR. VOZZOLO: Thank you, Your Honor.

MR. SOHMER: Thank you.

MR. BARTKUS: Thank you.

THE COURT: All right. Oh, by the way, the plaintiff's request for the imposition of costs and the like is denied. I'm not satisfied that there was an unfounded argument here. The plaintiff certain — the defendant certainly made an argument based on the Exxon case. The defendant's substantive argument certainly had merit with regard to interpretation of the existing Third Circuit precedent on aggregation. There's nothing here so egregious as would warrant an award of fees and costs to the plaintiff.

All right, gentlemen, thank you.

MR. VOZZOLO: Thank you.

MR. SOHMER: Thank you.

MR. BARTKUS: Thank you, Your Honor.

THE COURT: All right.

MR. BARTKUS: Need we do anything else to get the transcript?

THE COURT: No, Mr. Bartkus, I will get the transcript. As soon as I get the transcript, we'll have a report and recommendation put on it, it will be filed electronically and you gentlemen can take it from there.

MR. BARTKUS: Thank you, Your Honor.

THE COURT: All right. Thank you, gentlemen.

(Proceedings concluded)

I, certify that the foregoing is a correct transcript from the electronic sound recording of the proceedings in the above-entitled matter on September 12, 2005, to the best of my knowledge and ability.