Dechow v. Gilead Scis., Inc.
358 F. Supp. 3d 1051
C.D. Cal.2019Background
- Plaintiffs (residents of VA, PA, NY, LA) sued Gilead (CA/DE) in Los Angeles Superior Court alleging Viread/Truvada caused kidney and bone injuries and asserting product liability and warranty claims.
- Gilead removed to federal court on diversity grounds: complete diversity and amount in controversy > $75,000.
- Plaintiffs moved to remand under 28 U.S.C. § 1441(b)(2) (the forum-defendant rule), arguing removal is barred because Gilead is a forum defendant and local bias concerns justify remand.
- Gilead contended § 1441(b)(2) bars removal only if a defendant has been "properly joined and served," and it removed before service was effected.
- At removal, Gilead had not yet been served (service occurred after removal); Plaintiffs had access to the summons before removal and had time to serve.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1441(b)(2) bars removal when a forum defendant has not yet been "properly joined and served" | § 1441(b)(2) should bar removal by a forum defendant; allowing pre-service removal would subvert statute and permit absurd results | The statute's plain text confines the bar to defendants who are "properly joined and served," so removal before service is allowed | Court held § 1441(b)(2) does not bar removal because Gilead had not been "properly joined and served" at the time of removal; remand denied |
| Whether a literal reading of "properly joined and served" yields an absurd result here | Literal reading can produce absurd outcomes in some cases and should be read to prevent circumvention of Congress's scheme | Literal reading is appropriate absent absurdity; facts here do not produce absurdity | Court applied the plain text; no absurdity found given plaintiffs had the summons and time to serve before removal |
| Whether Ninth Circuit precedent supports the plain-text reading | Plaintiffs relied on district decisions to the contrary (e.g., Vallejo) | Gilead relied on Ninth Circuit interpretation of identical language in § 1446(b)(2)(A) (Baiul) to show "properly joined and served" is a prerequisite | Court found Ninth Circuit treatment of identical phrase in § 1446(b)(2)(A) supports plain-text reading and applied it to § 1441(b)(2) |
| Whether removal burden was satisfied | Removal should be barred to protect state forum when local defendant is involved | Gilead met burden to show diversity jurisdiction and that removal was procedurally proper (not served at removal) | Court concluded Gilead met its burden; federal jurisdiction proper |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (federal courts limited to statutory/constitutional jurisdiction)
- Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (statutory interpretation begins with text)
- Lamie v. United States Tr., 540 U.S. 526 (when text is plain court enforces terms)
- Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147 (3d Cir. holding § 1441(b)(2) applies only when defendant has been properly joined and served)
- Baiul v. NBC Sports, [citation="732 F. App'x 529"] (9th Cir. treating "properly joined and served" in § 1446(b)(2)(A) as a prerequisite)