Monday, December 17, 2007

More On Removing NJ Cases Before the NJ Defendant is Served

We can't get enough of the Thomson v. Novartis controversy.

Are we weird, or what?

We posted about Thomson itself here. And we followed up here and here.

Although we may be weird, we're not alone. Pharmalot picked up the story here, and the Civil Procedure Prof Blog picked it up here.

Once more, with feeling, my friends:

Now comes Fields v. Organon, No. 07-2922, slip op. (D.N.J. Dec. 12, 2007) (a link to the slip opinion here). Fields is the same thing all over again: Plaintiff pled a product liability claim in New Jersey state court against the manufacturer of the contraceptive NuvaRing. The defendants included Akzo Nobel NV, a Dutch company, and its Organon subsidiary, which has its principal place of business in New Jersey. Organon was "clearly a legitimate defendant" (slip op. at 7), but it followed the Thomson playbook, removing the case before Organon had been served with the complaint.

Judge Chesler didn't like the Thomson playbook. He held that permitting resident defendants to remove before serivce of the complaint "eviscerate[s] the purpose of the forum defendant rule." Id. at 8. A "literal interpretation" of the removal statute, 28 U.S.C. Sec. 1441(b), "creates an opportunity for gamesmanship by defendants, which could not have been the intent of the legislature." Id. Judge Chesler thus granted plaintiff's motion to remand.

Two thoughts: First, if courts will speculate as to whether the legislature intended to "create opportunities for gamesmanship," then it's time to throw out the entire Internal Revenue Code. Congress drafts, and lawyers devote their lives to looking for loopholes. That's kind of the way it works, isn't it?

Second, the score appears to be one and one on this issue in federal courts in New Jersey. (A string cite in footnote 3 of Fields suggests, however, there may be another local case or two on point. We haven't yet looked.) So the issue in in play.

Orders remanding cases, such as Fields, are of course not appealable, so the Third Circuit will never be reviewing one of those. Orders denying motions to remand are typically reviewable only after the case goes to judgment, which takes a long time.

So that's the only thing we know for sure: It's likely to be a long time before we see a definitive answer to this question.

2 comments:

reader said...

Silly me but if a plaintiff sees what is happening, why not take a voluntary dismissal and, if necessary, refile against at least one instate defendant, serve and add parties?

Beck/Herrmann said...

If plaintiffs begin to do that, then defendants will surely begin to file answers immediately after removal, to preclude plaintiffs from dismissing voluntarily.