282 F. Supp. 3d 638
S.D. Ill.2017Background
- Four Eliquis product-liability suits (filed July 5 and July 7, 2017 by Salim‑Beasley in Delaware state court) were removed to federal court within days of filing, before defendants were served.
- The cases were tagged for MDL transfer and then transferred to the Southern District of New York; plaintiffs filed timely motions to remand after transfer because of the 30‑day removal-motion deadline.
- This Court had previously decided Utts v. Bristol‑Myers Squibb Co., dismissing an Eliquis complaint primarily on preemption grounds; the Court issued a May 9 scheduling order allowing transferred actions 14 days to amend and to show cause why amended complaints should not be dismissed under Utts.
- Judge Stark in Delaware had denied remand in 33 related Eliquis cases (Young), holding removal was proper based on diversity despite Delaware citizenship of some defendants; plaintiffs here urged this Court to reach a different result.
- Plaintiffs argued removal was improper forum‑defendant gamesmanship because defendants removed before they could be served; defendants and the Court relied on the plain text of 28 U.S.C. § 1441(b)(2) (the "joined and served" requirement) to permit removal prior to service.
- The Court denied the remand motions and dismissed the complaints with prejudice, relying on Utts and related decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal was barred by the forum‑defendant rule (28 U.S.C. § 1441(b)(2)) when defendants were named but not served | Removal is improper gamesmanship; statute should be read to require a "meaningful chance" to serve before removal | § 1441(b)(2) prohibits removal only where a defendant has been "properly joined and served," so removal before service is permitted | Removal was proper because defendants removed prior to being served; forum‑defendant bar did not apply |
| Whether this Court should follow Judge Stark's Delaware decision denying remand or instead follow contrary district court decisions in the Second Circuit | Court should follow Second Circuit district decisions that restrict pre‑service removal | Federal courts form a unified system; where statute is unambiguous, Court applies plain text rather than prefer one district judge over another | Court applied the plain statutory text and declined to ignore Judge Stark; no single different controlling authority required reversal |
| Whether court should consider litigant motives or policy reasons (to avoid gamesmanship) in interpreting § 1441(b)(2) | Statutory text should be read in light of policy to prevent removal tactics that frustrate forum‑defendant rule | Text is unambiguous; policy arguments cannot override clear statutory language and would create uncertainty | Court refused to rewrite statute based on policy; plain meaning controls |
| Whether the complaints should survive or be dismissed after remand was denied | Plaintiffs offered no developed opposition to dismissal based on Utts | Defendants argued Utts and related filings require dismissal | Complaints dismissed with prejudice (court cited Utts and Fortner reasoning) |
Key Cases Cited
- Utts v. Bristol‑Myers Squibb Co., 251 F. Supp. 3d 645 (S.D.N.Y.) (MDL Eliquis dismissal opinion relied on for preemption and dismissal)
- Yakin v. Tyler Hill Corp., 566 F.3d 72 (2d Cir.) (burden on removing defendant to demonstrate propriety of removal)
- Purdue Pharma L.P. v. Kentucky, 704 F.3d 208 (2d Cir.) (removal statute construed narrowly)
- Menowitz v. Brown, 991 F.2d 36 (2d Cir.) (federal courts apply a single body of law; one district court's view does not bind others)
- Stan Winston Creatures, Inc. v. Toys "R" Us, Inc., 314 F. Supp. 2d 177 (S.D.N.Y.) (forum‑defendant rule does not bar removal when defendant not yet served)
- Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83 (2d Cir.) (plain meaning of statute controls absent ambiguity)
- United States v. American Trucking Associations, 310 U.S. 534 (U.S.) (courts apply plain statutory language)
- Tyler v. Douglas, 280 F.3d 116 (2d Cir.) (statutory interpretation begins with ordinary meaning of text)
- Goodwin v. Reynolds, 757 F.3d 1216 (11th Cir.) (acknowledging district‑court division on pre‑service forum‑defendant question)
- Novak v. Bank of New York Mellon Trust Co., 783 F.3d 910 (1st Cir.) (noting unsettled district‑court split on similar removal issue)