Confer v. Bristol-Myers Squibb Co.
2014 U.S. Dist. LEXIS 164863
S.D.N.Y.2014Background
- Plaintiff Confer (Pennsylvania citizen) sued in New York State Supreme Court; defendants include Bristol-Myers (New York and Delaware citizen) and Otsuka (Delaware and Maryland citizen).
- Otsuka filed a notice of removal to federal court based on diversity jurisdiction before Bristol-Myers had been served.
- Bristol-Myers was served about 1.5 hours after Otsuka filed the notice of removal.
- Plaintiff moved to remand under 28 U.S.C. § 1441(b)(2) (the forum-defendant rule), which bars removal if any properly joined and served defendant is a citizen of the forum state.
- Defendants argued the rule did not apply because the forum defendant had not yet been "properly joined and served" at the time of removal.
- The district court granted remand, finding the forum-defendant rule’s policy purpose and the remedied procedural defect supported remand and construing the removal statute narrowly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1441(b)(2) bars removal when the forum defendant was joined but not served at time of removal | Remand required because Bristol-Myers is a forum citizen and the rule applies once joined and served (service completed shortly after removal) | Rule inapplicable because Bristol-Myers had not yet been "properly joined and served" when Otsuka filed the notice of removal | Court granted remand: the forum-defendant rule’s policy supports remand; the short delay in service did not defeat the rule |
Key Cases Cited
- O’Brien v. AVCO Corp., 425 F.2d 1030 (2d Cir.) (historical rationale for diversity jurisdiction to avoid home-state prejudice)
- Bank of the United States v. Deveaux, 9 U.S. 61 (U.S.) (early articulation of rationale for diversity jurisdiction)
- Lively v. Wild Oats Mkts., Inc., 456 F.3d 933 (9th Cir.) (forum-defendant rule reduces concern about home-state bias)
- Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043 (2d Cir.) (removal statute construed narrowly; doubts resolved against removability)
- Purdue Pharma L.P. v. Kentucky, 704 F.3d 208 (2d Cir.) (reinforcing narrow construction of removal jurisdiction)