Thursday, October 01, 2009

Removal Round Up

We’ve done so many posts on removal – for you non-lawyers that means moving cases that were originally filed in state court into federal court – that even we have a hard time keeping track. Most of our posts have reviewed individual cases that, one way or another, we’ve learned about. There are 29 posts (not counting this one) that fall under the label “removal” on our topic list.

So we thought we’d try to organize them a bit today. At least the saves us from having to think up something new to write about.

Pre-Service Removal

Our favorite.

It sure won’t come as a shock to any of our long-time readers, but of the 29 posts, more of them are about pre-service removal than anything else. Pre-service removal is authorized by 28 U.S.C. §1441(b), which limits removal on the basis of diversity of citizenship (for non-lawyers that means cases in which the plaintiff and defendants are citizens of different states) when a plaintiff chooses to file suit against a defendant in a state court in the defendant’s home state. Diverse actions are removable to federal court under §1441(b) “only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Section 1441(b) doesn't apply if the parties aren't diverse in the first place, but it does impose a "forum defendant rule" that, where applicable, prevents removal of diverse cases if brought in one of the defendant's home state court - but that defendant has to be "properly joined and served."

The plain language of §1441(b) thus permits removal of actions whenever the in-state defendant hasn’t been “properly joined and served.” Taking advantage of modern technology – online dockets and automatic methods of monitoring them – defendants (and not just drug and device companies) have started removing cases before they (or some other in-state defendant) have been served. Plaintiffs say that defendants should not be allowed to do this because, despite what the statute says, Congress couldn’t have meant to authorize pre-service removal before a plaintiff even has an opportunity to effect service.

This has been happening a lot in drug/device cases originally filed in New Jersey because: (1) a lot of big drug/device companies have their headquarters in New Jersey, and (2) a lot of plaintiffs’ lawyers view New Jersey state courts and judges as being biased in their favor and file actions there on behalf of clients from all over the country.

We first covered pre-service removal here, reviewing Thomson v. Novartis Pharmaceuticals Corp., 2007 WL 1521138 (D.N.J. May 22, 2007). Our initial thought, since our post was six months after Thompson was decided, was “how could the world miss this?” In Thompson, the removing defendant, a diverse drug company sued in New Jersey state court (its principal place of business), used a “private docketing service” to learn of the complaint before being served. Id. at *2. It immediately removed the case to federal court under the authority of §1441(b). Plaintiff claimed that the “purpose” of the section required its “properly joined and served” requirement to apply only after some defendant was actually served. 2007 WL 1521138, at *3. The defendant countered that nothing in either the statute or legislative history limited the operation of that language in any way. Id. at *3-4. It offered “substantial authority” that the “plain meaning” of §1441(b) “establishes that, so long as [defendant] removed this case prior to being served with process, removal was proper.” Id. at *3. The court (Judge Simandle) agreed:

This language is unambiguous – removal is prohibited only where a defendant, who is a resident of the forum state, has been “properly joined and served.” Here, at the time [defendant] removed this case to this Court. . .[it] had yet to be served. Moreover, there is no evidence that [defendant] was actively avoiding service. . . . Congress plainly intended to require service of the complaint, and not just proper joinder, to trigger the preclusion of removal by the forum resident defendant in a diversity case, and it did so by including the phrase “properly joined and served” so that a plaintiff could not frustrate removal of a diversity case by refraining from serving the resident defendant. To adopt plaintiff's arguments here would read the words “and served” out of the statute.

Id. (various citations and case-specific dates omitted).

That started the ball rolling – at least for us.

Not every New Jersey district court judge agreed with Thompson. We reported on the emerging split of authority here. We discussed Fields v. Organon USA, Inc., 2007 WL 4365312 (D.N.J. Dec. 12, 2007), where the court decided it didn’t like the language of §1441(b) because a “literal interpretation. . .creates an opportunity for gamesmanship by defendants, which could not have been the intent of the legislature.” Id. at *5. We thought that was something of a “wow” proposition – that courts may take it upon themselves to rewrite statutes to eliminate opportunities for legal gamesmanship. Bye-bye Internal Revenue Code. Bye-bye CAFA. For that matter, bye-bye those parts of Hatch-Waxman that allow the pervasive patent-related back and forth that occurs between generic and branded drug manufacturers. While we're on the subject, can we get judges to rewrite the New Jersey and Minnesota statutes of limitations to add a borrowing statute? Talk about game playing! Love loopholes or hate them, is it the business of judges, as opposed to legislatures and administrative agencies, to “improve” statutes, rules, and regulations to eliminate loopholes that those bodies saw fit to create?

We continued our fixation with pre-service removal here, reporting on Allen v. GlaxoSmithKline PLC, 2008 WL 2247067 (E.D. Pa. May 30, 2008). Allen was significant for implying a limitation on the “filed and served” language that would preclude reliance by an “unserved, in-state defendant.” Id. at *4. “Logic and policy” trumped the conceded language of the statute:

However, this reading controverts the logic and policy behind diversity jurisdiction . . . . [T]he intent behind the “joined and served” requirement is to avoid gamesmanship by preventing plaintiffs from joining forum defendants merely to preclude federal jurisdiction. Given this intent, it would be especially absurd to interpret the same “joined and served” requirement to actually condone a similar kind of gamesmanship from defendants-removing before service, in order to later claim federal jurisdiction, for lack of proper service.

Id. What about the fact that Congress had taken action to amend §1441 to preclude the first type of “gamesmanship,” but not the second? That didn’t seem to matter. Once courts slip the reins of adherence to statutory language, they are free to head off in many directions. Id. at *5 (“[a]lthough no other court appears to have reached such a conclusion, I adopt it as an alternative, but viable interpretation of the statute”).

Mothlike, we returned to the pre-service removal flame, here, only to yield the floor to one of our readers, who had taken the time to inform us that pre-service removal had been allowed in several (then) recent cases out of Florida:


In light of the continued interest in pre-service removal cases, note that both Valerio v. SmithKline Beecham Corp., 2008 WL 3286976 (S.D. Fla. Aug. 7, 2008), and Bolin v. SmithKline Beecham Corp., 2008 WL 3286973 (S.D. Fla. Aug. 7, 2008), as well as an earlier order in the Masterson case – Masterson v. Apotex Corp., 2008 WL 2047979 (S.D. Fla. May 13, 2008), hold that “properly joined and served” under 28 U.S.C. §1441(b) means what it says – the court “look[s] only at ‘properly joined and served’ defendants at the time of removal.” Valerio, 2008 WL 3286976 at *2.
We just couldn't get enough, so we returned to pre-service removal here, to tell our readers about Vitatoe v. Mylan Pharmaceuticals, 2008 WL 3540462 (N.D.W. Va. Aug. 13, 2008). The removing defendant, a diverse drug company (of course!), had removed the action before anybody had been served. Id. at *1. The court applied the plain meaning rule, and held pre-service removal didn’t lead to any “absurd” result:

After careful consideration, the Court concludes that the weight of authority and better reasoning supports upholding removal. Unless there is some ambiguity in the language of a statute, a court’s analysis must end with the statute’s plain language . . . . [E]xceptions to the Plain Meaning Rule [] are, and should be, exceptionally rare. . . . [P]olicy arguments notwithstanding, the statutory language of §1441(b) requiring that the forum defendant be “joined and served” to preclude removal is unambiguous and must be given its plain meaning.

2008 WL 3540462, at *5 (citations and quotation marks omitted).

By then thoroughly addicted, we mainlined pre-service removal again, here. It was a bad trip, since Sullivan v. Novartis Pharmaceuticals Corp., 575 F.Supp.2d 640 (D.N.J. 2008), in a case essentially identical to Thomson, spent 14 pages reaching the opposite conclusion. Of course, it generally takes longer to avoid statutory language than to follow it. Sullivan decided that, in the name of congressional intent, it would read the language in question – “properly joined and served” – out of §1441(b):

Plaintiffs argue that applying the plain meaning of section 1441(b), and allowing [defendant] – a forum defendant – to avoid the forum defendant rule merely because it had not yet been served at the time it filed the Notice [of removal], would amount to an absurd result, demonstrably at odds with Congressional intent. The court agrees. . . .finding that the application of the plain meaning of §1441(b) [leads] to a result inconsistent with the intent of Congress. . . . [A] defendant is subject to the restrictions of section 1441(b) regardless of whether it had been properly served at the time of removal.

575 F. Supp.2d at 642 (citations and quotation marks omitted). That is, the defendant isn't allowed to remove "regardless of whether" §1441(b) says it can.

The Sullivan court couldn’t find anything in the legislative history of the 1948 amendment that added this language to justify its judicial tour de force. Id. at 644 (“able to locate neither a specific statement from Congress nor from the advisory Committee”). The court fell back upon a more general congressional intent to restrict diversity jurisdiction, and concluded, in effect, that Congress didn’t know what it was doing.


Congress could not possibly have anticipated the tremendous loophole that would one day manifest from technology enabling forum defendants to circumvent the forum defendant rule by, inter alia, electronically monitoring state court dockets. Thus, Congress would have had no thought to wording the statute with this modern problem in mind.
Id. at 645. The court then spent another two pages straightening Congress out. Id. at 646-47.

We dipped into the same old well yet again here, discussing In re Avandia Marketing, Sales Practices & Products Liability Litigation, 624 F. Supp.2d 396 (E.D. Pa.. 2009). This Avandia decision (there are others - see below) involved a bunch of cases with various patterns of who removed before who else was served. Like Sullivan, the court abandoned the express terms of §1441(b) because Congress couldn’t possibly have meant what it actually enacted. Congress, the court decided, was technologically challenged. It hadn’t considered “modern litigation technology” which “enabled” defendants “to electronically monitor state court filings.” 624 F. Supp.2d at 409-10. Admitting that “a literal reading” of §1441(b) authorized pre-service removal, the Avandia court decided to help Congress out a bit:

This Court. . .rejects any construction of §1441(b) that would allow an in-state defendant to side-step the restrictive purpose of the forum defendant rule by “racing to remove” before being served with process. . . . The Court agrees. . .that any contention that removability should depend on the timing of service is absurd on its face, and could not have been intended by Congress.

624 F. Supp.2d at 410 (citations and quotation marks omitted).

Since Avandia abandoned the statutory language for an intent of Congress test, it decided to apply §1441(b) differently depending upon whether pre-service removal had been effected by an in-state defendant before it was served or an already-served out-of-state defendant (before the in-state defendant was served). 624 F. Supp.2d at 411. That distinction, of course, is nowhere in the statute. But once a court has decided to ignore the language of the statute, it might as well go all the way.

Like a broken record (do our younger readers even know what that is?), we jumped back on the bandwagon (so what if it's a mixed metaphor?) here, to discuss Copley v. Wyeth, Inc., 2009 WL 1089663 (E.D. Pa. Apr. 22, 2009). Copley also followed the plain language rule and denied remand. The facts in Copley, however, were a little different – the removing party was a properly served diverse defendant. For some reason, the plaintiff had failed to serve the in-state defendant, another drug manufacturer. Id. at *2-3. In dictum the court distinguished between pre-service removals effected by unserved in-state defendants and properly served diverse defendants. Id. at 3.

Our latest (before today) post on pre-service removal featured Bivins v. Novartis Pharmaceuticals Corp., 2009 WL 2496518 (D.N.J. Aug. 10, 2009), in which Judge Kugler likewise applied the plain meaning rule:


The role of the courts in interpreting a statute is to give effect to Congress's intent. Because it is presumed that Congress expresses its intent through the ordinary meaning of its language, every exercise of statutory interpretation begins with plain language of the statute itself. Where the statutory language is plain and unambiguous, further inquiry is not required, except in the extraordinary case where a literal reading of the language produces an absurd result. Moreover, a court may depart from the plain language of a statute only by an extraordinary showing of a contrary congressional intent in the legislative history.
2009 WL 2496518, at *2 (quoting Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998)). Bivins held that the “plain meaning” of §1446(b) permitted removal before a defendant had been “properly" served. 2009 WL 2496518, at *2. There being no specific statement from Congress or the relevant committees that the “properly served” language was supposed to mean anything other than what it said, the court found the removal proper.

Putting all of the pre-service removal cases together, we think that the following New Jersey federal judges are on record as favoring pre-service removal under one variant or another of the plain meaning doctrine: Cavanaugh (Jaegar v. Schering Corp., 2007 WL 3170125 at *2 (D.N.J. Oct. 25, 2007)); Debevoise (Frick v. Novartis Pharmaceuticals Corp., 2006 WL 454360, at *3 (D.N.J. Feb. 23, 2006)) (be careful, he later changed his mind in Sullivan); Kugel (Bivens, supra); Rodriguez (Ripley v. Eon Labs, Inc., 622 F. Supp.2d 137, 141-42 (D.N.J. 2007); and Simandle (Thompson, supra; Yocham v. Novartis Pharmaceuticals Corp., 2007 WL 2318493 at *3 (D.N.J. Aug. 13, 2007)).

Even we’re not crazy enough to post about every case that bears upon pre-service removal. Outside New Jersey, pre-service removal has been held valid in the following cases:

California: Cucci v. Edwards, 510 F. Supp.2d 479, 482-83 (C.D. Cal. 2007) (removal proper under §1441(b) even though service of process was underway, but not complete, at time of removal); Waldon v. Novartis Pharmaceuticals Corp., 2007 WL 1747128 at *3 (N.D. Cal. June 18, 2007) (“[p]laintiff does not cite any authority to suggest a different legislative purpose than that apparent from the text of the statute”); City of Ann Arbor Employees’ Retirement System v. Gecht, 2007 WL 760568, at *9 (N.D. Cal. March 9, 2007) (“if Congress had wanted to ensure that removal would not be appropriate until it was clear that Plaintiff was trying to prevent removal by speciously naming resident defendants,” it would have limited the statute to where at least one defendant was served or given plaintiffs a service deadline).

Delaware: Hutchins v. Bayer Corp., 2009 WL 192468, at *11-12 (D. Del. Jan. 23, 2009) (“I return to where I began: the language of §1441(b)”).

Florida: Whitehurst v. Wal-Mart, 306 Fed. Appx. 446, 448 (11th Cir. 2008) (“nothing in the removal statute, or any other legal provision, requires that a defendant be served with the complaint before filing a notice of removal”); North v. Precision Airmotive Corp., 600 F. Supp.2d 1263, 1268-70 (M.D. Fla. 2009) (“[a]lthough Congress may not have anticipated the possibility that defendants could actively monitor state court dockets to quickly remove a case prior to being served. . .such a result is not so absurd as to warrant reliance on ‘murky’ or non-existent legislative history in the face of an otherwise perfectly clear and unambiguous statute”); Bolin v. SmithKline Beecham Corp., 2008 WL 3286973, supra, at *2 (“this Court agrees with the decisions concluding that §1441(b) as amended limits looking only at ‘properly joined and served’ defendants at the time of removal”); Valerio v. SmithKline Beecham Corp., 2008 WL 3286976, supra, at *2 (same); Masterson v. Apotex Corp., 2008 WL 2047979, supra, at *2 (both “plain language” and “policy considerations” support validity of pre-service removal).

Illinois: Massey v. Cassens & Sons, Inc., 2006 WL 381943 at *2 (S.D. Ill. Feb. 16, 2006) (stating that the federal courts have decided “virtually uniformly” that the forum defendant rule only applies if a resident defendant is both joined and served at the time of removal); Test Drilling Service Co. v. Hanor Co., 322 F. Supp.2d 953, 956-57 (C.D. Ill. 2003) (“presence of an unserved Defendant who is a citizen of the forum state does not prevent removal”).

Indiana: In re Bridgestone/Firestone, Inc., 184 F. Supp.2d 826, 828 (S.D. Ind. 2002) (“§1441(b) would have precluded removal, however, only if [the in-state defendant] had been properly served, and it had not been served at the time [the other defendant] filed the removal petition. That it ultimately was served does not affect the propriety of removal”).

Maryland: Clawson v. FedEx Ground Package System, Inc., 451 F. Supp.2d 731, 736 (D. Md. 2006) (“[u]nder. . .the plain language of 28 U.S.C. §1441(b), this action could have been removed by [defendant] from state court at any time after it was filed there so long as [the in-state defendant] was an unserved defendant”).

Mississippi: Ott v. Consolodated Freightways Corp., 213 F. Supp.2d 662, 665 & n. 3 (S.D. Miss. 2002) (“in accordance with the plain language of §1441(b), courts have held, virtually uniformly, that where, as here, diversity does exist between the parties, an unserved resident defendant may be ignored in determining removability”).

Missouri: Taylor v. Cottrell, Inc., 2009 WL 1657427, at *2 (E.D.Mo. June 10, 2009) (“nothing in 28 U.S.C. §1441 or any other statute requires defendants to have been served themselves prior to removing a case to federal court”); Brake v. Reser’s Fine Foods, Inc., 2009 WL 213013, at *3 (E.D. Mo. Jan. 28, 2009) (“this Court must apply the statute as written and determine that Defendants properly removed this action”); Johnson v. Precision Airmotive, LLC, 2007 WL 4289656 at *6 (E.D. Mo. Dec. 4, 2007) (“[t]his Court must apply the statute as it is written, and not as plaintiffs maintain it is intended”).

New York: In re Fosamax Products Liability Litigation, 2008 WL 2940560, at *2 (S.D.N.Y. July 29, 2008) (“[c]ourts almost uniformly have read this [language] to allow removal where an in-state defendant has not been served by the time the removal petition is filed”); Stan Winston Creatures, Inc. v. Toys “R” Us, Inc., 314 F. Supp.2d 177, 180-81 (S.D.N.Y. 2003) (“an unserved resident defendant may be ignored in determining removability. . . . Defendants are entitled to act to remove a case based on the circumstances at the time they are sued, and are not required to guess whether a named resident defendant will ever be served”).

Pennsylvania: Copley v. Wyeth, 2009 WL 1089663, supra; Vanderwerf v. GlaxoSmithKline, P.L.C., 2005 WL 6151369, at *1 (E.D. Pa. May 5, 2005) (“[u]nder [§1441(b)], the presence of an unserved defendant with residence in the forum state does not defeat removal”).

South Carolina: Wensil v. E.I. DuPont De Nemours & Co., 792 F. Supp. 447, 448-49 (D.S.C. 1992) (“[t]he statute is clear. The presence of unserved resident defendants does not defeat removal”).

Tennessee: See McCall v. Scott, 239 F.3d 808, 813 n.2 (6th Cir. 2001) (“[w]here there is complete diversity of citizenship, as [plaintiff] concedes there was, the inclusion of an unserved resident defendant in the action does not defeat removal”) (dictum, as court already held issue waived).

Texas: Maitra v. Mitsubishi Heavy Industries, Ltd., 2002 WL 1491855, at *2 (W.D. Tex. March 29, 2002) (“[b]ecause there were no [in-state] defendants served and properly joined at the time of the removal, §1441(b) does not require remand”). See also Delgado v. Shell Oil Co., 231 F.3d 165, 177 (5th Cir. 2000) (“[w]e read §1446(b). . .as consciously reflecting a desire on the part of Congress to require that an action be commenced against a defendant before removal, but not that the defendant have been served”) (relying on other language of statute).

West Virginia: Carman v. Bayer Corp., 2009 WL 1649715, at *3 (N.D. W. Va. June 10, 2009) (“the plain and unambiguous language of §1441(b) requires that the forum defendant be ‘joined and served’ to preclude removal”); Vitatoe v. Mylan Pharmaceuticals, supra, 2008 WL 3540462.

On the other side of the ledger, well, that’s usually the plaintiff’s position. We’ve discussed a couple of adverse cases because it’s necessary to know what the other side is arguing to be able to refute it. Beyond that, we’re not in the habit of doing the plaintiffs’ side’s research for it. We’ll leave that to plaintiff-side bloggers if they’re so inclined.

Misjoinder of In-State Defendants

Aside from swarming from all over the country into a defendant’s home state’s court (when the court is considered pro-plaintiff), another trick plaintiffs use to prevent removal is to join a in-state defendant on a completely separate theory of liability. Thus plaintiffs combine product liability and medical malpractice claims involving the same or similar injuries. We’ve posted a couple of times about courts refusing to allow such misjoined claims, severing them, and sending only the claims concerning the in-state defendant back to state court. After the severance the claim against the out-of-state defendant (a drug/device company) stays in federal court.

This issue arose in a pair of cases from the Northern District of Ohio, which we covered here and here. In DeGidio v. Centocor, Inc., 2009 WL 1867676 (N.D. Ohio June 29, 2009), and Joseph v. Baxter International, Inc., 614 F. Supp.2d 868 (N.D. Ohio 2009), the same judge (Chief Judge Carr), held that medical malpractice claims asserted against in-state doctors were insufficiently related to product liability claims also asserted against diverse drug/device companies. Therefore the medical malpractice claims were severed and remanded while the product liability claims remained in federal court.

In Joseph, the plaintiffs didn’t help themselves by waiting until “hours before” the removal petition was filed to add medical malpractice claims against in-state doctors. 614 F. Supp.2d at 871. The court found these parties “dispensable” under Fed. R. Civ. P. 21, allowing severance and partial remand:

[T]he Healthcare Defendants are not necessary parties as the resolution of a claim against them would not necessarily resolve [plaintiffs’] claim against [the manufacturer defendant]. With regard to the Healthcare Defendants, [plaintiffs] allege medical negligence-namely, that physicians administered [the drug] to the decedent despite her chart noting her allergy to [the drug], failed to obtain informed consent, and did not have in place adequate procedures to prevent improper use of [the drug]. Such medical malpractice allegations differ from [plaintiffs’] products liability claim which focuses on [the manufacturer’s] conduct in designing, manufacturing, labeling and recalling tainted [drug].

614 F. Supp.2d at 872. A key point is that Joseph applied only the standard for misjoinder under Rule 21. Because severance was granted, the court did not have to reach the substantive merit of the malpractice claims, which would have been judged under the hard-to-satisfy “no colorable ground” standard for fraudulent joinder. The DeGidio case involved essentially the same rationale, 2009 WL 1867676, at *3, although, as the court noted, there was no allegation that any of the medical defendants actually prescribed the drug in question. Id.

Most recently we blogged about another variant of the sever and keep rationale in Stone v. Zimmer, Inc., 2009 WL 1809990 (S.D. Fla. June 25, 2009). Stone was a particularly egregious misjoinder, since the in-state doctor wasn’t even involved in the treatment that included the supposedly defective product, but only came on the scene a year later. Id. at *3. For that reason, the court ordered severance and remand only of the claims against the in-state doctor:

[Defendant] and the subsequent [in-state] health care providers are properly viewed as successive, rather than joint tortfeasors. . . . [T]heir alleged torts were neither joint nor concurring and the liability of these actors does not “arise out of the same transaction, occurrence or series of transactions or occurrences.”

2009 WL 1809990, at *4 (quoting joinder rule).

Thus, while it can’t yet be said that partial severance and partial remand will become the rule in all medical malpractice/product liability cases, there are clearly a number of situations where the misjoinder is sufficiently blatant that courts will order this result. The Rule 21 sever-and-keep route is definitely something to watch when diverse and non-diverse defendants have different sorts of claims asserted against them – the more factually different the better.

Removal and Vague Pleading

An emerging removal issue is how the Supreme Court’s decisions in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic v. Twombly, 550 U.S. 544 (2007) – enforcing the “statement” part of Rule 8’s “short and plain statement” requirement – will affect removal practice. During the decades when boilerplate allegations were enough to plead claims in federal court it really didn’t matter what the state-court rules of pleading were, since they couldn’t be more lax than the federal rules.

That’s changed now, and courts are starting to examine what rules of pleading should apply when removed complaints are evaluated to determine whether claims have been stated against defendants whose presence would otherwise defeat removal. We discussed questions of this sort that were raised in In re Avandia Marketing, Sales Practices & Products Liability Litigation, 2009 WL 1708078 (E.D. Pa. June 17, 2009) (we'll call it "Avanda II" here). Avandia II, like the earlier Avandia case, opted for the position that lessened the judicial workload. It decided that, since the state of origin allowed vaguer pleadings than Twombly/Iqbal, it wouldn’t judge the sufficiency of the complaint under the federal rules, even though the complaint was now in federal court. 2009 WL 1708078, at *5-6. That leaves two questions open: (1) why under Erie principles (and contrary to Avandia II) shouldn’t courts apply the Federal Rules of Civil Procedure to determine the validity of pleadings in federal court? and (2) what happens when the state of origin has more stringent fact pleading rules than Twombly/Iqbal? Maybe some law professors can help out here.

Consent to Removal

We’ve also been interested in problems arising from the rule that all defendants (except sham defendants never served) usually must consent to removal. One issue is whether, when multiple parties are served at different times, the 30-day consent period is measured from when the first party was served or the last. We were all over that issue here, in our commentary about Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202 (11th Cir. 2008), and its holding that the plaintiffs shouldn’t be allowed to shorten the later served defendants’ 30-day period by staggering service and hoping the defendants they served earliest don’t care.

Gluttons for punishment that we are, we returned to consent-related issues here, to ruminate over (among other things) whether consents filed after the removal petition (but before the 30-day removal period ran) were valid (our preferred answer being “yes”). We went through a lot of minutiƦ that even we admitted was “weird stuff” in detailing the holdings in City of Cleveland v. Deutsche Bank Trust Co., 571 F. Supp.2d 807 (N.D. Ohio 2008). These issues included (in addition to the timing of consents) belated procedural objections to removal, whether consents must be in writing, consents by in-house counsel prior to engaging litigation counsel, and consents by improperly named parties. We guess we are just are weird like that.

Who else would post a "removal round-up"?

5 comments:

sorel top said...

A very timely post for me! Thank you.

Anonymous said...

Thanks for this great post. I am left wondering the following: pre-service removal allows a defendant to take a case where there is not complete diversity and remove the case to federal court. The defendant can do this because of the removal statute. But once the case is in federal court, there is no complete diversity, so jurisdiction fails under 1332. Why aren't the courts dismissing for lack of subject matter jurisdiction those cases brought to them through pre-service removal?

Beck/Herrmann said...

No. No. No. Pre-service removal does not allow removal where there isn't complete diversity. All the cases are clear on that.

What is does allow is removal where there is complete diversity - but the plaintiff (from state X) has sued the defendant (from state Y) in the state court of state Y. There's still complete diversity, but the in-state defendant rule (that a case brought against a defendant in that defendant's home state court is not removable, notwithstanding complete diversity) no longer applies - due to the "properly joined and served" caveat in 1441(b).

All of the cases where pre-service removal has been allowed involve this situation.

Anonymous said...

thanks for this crucial and basic clarification. much appreciated.

Anonymous said...

It seems most of these situations are multiple defendant situations. Have you seen cases where a single forum defendant, preservice, removes?