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Pre-Service Removals: They Keep On Coming

By James M. Beck and Mark Herrmann

At this point, we feel as though we're obligated to track this issue: When a plaintiff files a complaint in state court that names both residents and non-residents of the forum state as defendants, can the non-resident defendant remove before the resident defendant is served?

When we last posted on this subject, we noted that we were raising this issue for the "umpteenth" time. This post is . . . whatever comes after the umpteenth.

In Copley v. Wyeth, No. 09-722, 2009 WL 1089663 (E.D. Pa. Apr. 22, 2009), Suzanne Copley filed a complaint against Wyeth, Inc.; Wyeth Pharmaceuticals, Inc.; Schwarz Pharma, Inc.; Actavis, Inc.; and Actavis Elizabeth LLC in Pennsylvania state court for injuries she allegedly suffered from the long-term ingestion of Reglan (or metoclopramide) as prescribed by her physician.

Copley was a citizen of Tennessee, which made her citizenship diverse from that of all of the defendants. Copley filed the complaint on February 13, 2009. She served Schwarz Pharma, a citizen of Delaware, on February 17, and Schwarz removed the case to federal court on February 19.

Wyeth Pharmaceuticals, Inc., is a citizen of Pennsylvania, the state in which the lawsuit was filed. If Wyeth had been properly "joined and served" as a defendant before February 19, then the case would not have been removable. 28 U.S.C. Sec. 1441(b). But Schwarz removed the action before Copley had served Wyeth with the complaint.

Copley moved to remand.

The trial court first quoted the language of Section 1441(b), which authorizes removal of diversity cases so long as "none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Id. Strictly construing that language, the court upheld the removal, denying plaintiff's motion to remand.

The court discussed the situation where there's only one defendant -- a resident of the forum state -- named in the complaint, and that defendant removes before it is served. The court saw a difference between "removal by an as-yet-unserved forum defendant and removal by a properly served non-forum defendant." Copley, 2009 WL 1089663, at *2. The court wasn't presented with that situation, and so didn't have to decide the propriety of removal on those facts. The court held only that Schwarz's removal (by a non-resident defendant) before service had been effected on Wyeth (a resident defendant) was permissible.

We've said it before, and we'll say it again: We'll continue to see this issue percolating in the trial courts until appellate courts finally provide some guidance.

And that guidance won't come for a while -- because orders remanding cases are ordinarily not reviewable on appeal (28 U.S.C. Sec. 1447) and orders denying motions to remand aren't reviewable until a judgment is entered, which may not happen for years, if ever.

In the meantime, litigants will continue to spend time and money litigating, and judicial resources will be spent deciding, this preliminary procedural issue.

Full post as published by Drug and Device Law on May 11, 2009 (boomark / email).