934 F. Supp. 2d 313
D. Mass.2013Background
- Gentile, administrator of the decedent’s estate, filed a wrongful death suit in Massachusetts state court against Biogen and Elan, both Massachusetts citizens or citizens of diverse states, in a diversity action.
- Decedent, a New York citizen, was treated with Tysabri (Biogen and Elan collaborated on production) and died of PML in 2009.
- Elan, a non-forum defendant, removed the case to federal court before Biogen was served, seeking removal under 28 U.S.C. § 1441(b).
- Gentile moved to remand arguing removal was improper under the forum defendant rule; Elan moved to transfer; the court initially denied both motions, then sua sponte reconsidered.
- Opinion concludes that removal under § 1441(b) requires at least one defendant to be served at the time of removal, and thus pre-service removal is improper; the case is remanded to Middlesex Superior Court.
- The court emphasizes the purpose of the forum defendant rule and pre-service removal as a means to prevent gamesmanship and protect forum choice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal before service on any defendant is proper under § 1441(b). | Gentile argues removal is improper because no forum defendant had been served when Elan removed. | Elan contends § 1441(b) allows removal before service on a forum defendant if a non-forum party is removing. | Removal before service is improper; at least one defendant must be served. |
| What interpretation of § 1441(b) best aligns with congressional purpose and text. | The plain language requires a served defendant; the forum defendant rule serves to prevent forum bias and gamesmanship. | The plain language should be read to allow pre-service removal to avoid procedural delay and strategic behavior by plaintiffs. | Plain-language reading requiring service is adopted; prevents evasion of forum defendant rule. |
Key Cases Cited
- Lively v. Wild Oats Mkts., Inc., 456 F.3d 933 (9th Cir. 2006) (forum defendant rule explained)
- Pullman Co. v. Jenkins, 305 U.S. 534 (U.S. 1939) (removal limitations to prevent gamesmanship by joinder)
- Hawkins v. Cottrell, Inc., 785 F. Supp. 2d 1361 (N.D. Ga. 2011) (contextual interpretation of § 1441(b) language in removal)
- Sullivan v. Novartis Pharms. Corp., 575 F. Supp. 2d 640 (D.N.J. 2008) (discussion of 1441(b) purpose and pre-service removal issues)
- Ethington v. Gen. Elec. Co., 575 F. Supp. 2d 855 (N.D. Ohio 2008) (pre-service removal considerations)
- Munchel v. Wyeth LLC, 2012 WL 4050072 (D. Del. 2012) (pre-service removal debate in district courts)