Valido-Shade v. Wyeth, LLC
875 F. Supp. 2d 474
E.D. Pa.2012Background
- Plaintiffs filed in the Court of Common Pleas of Philadelphia County seeking damages from Fen-Phen injuries.
- Wyeth LLC timely removed the case to federal court based on diversity and amount in controversy.
- Plaintiffs and Wyeth LLC are diverse; Wyeth LLC is a Delaware and New York citizen, while Wyeth Pharmaceuticals, Inc. and Wyeth-Ayerst International, Inc. are Pennsylvania citizens with their principal places of business in Pennsylvania.
- Plaintiffs argue removal is barred by the forum defendant rule under § 1441(b) because two Pennsylvania defendants had not been served at removal.
- Wyeth LLC removed before service on the in-state defendants, prompting litigation over which statutory interpretation governs removal pre-service.
- The court ultimately finds removal proper and denies remand, relying on the plain language of § 1441(b) and related policy/history concepts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1441(b) bars removal when in-state defendants are unserved. | Valido-Shade argues in-state defendants unserved; removal improper. | Wyeth argues removal permissible before in-state service. | Removal proper; no requirement of prior service on in-state defendants. |
| Whether an out-of-state defendant may remove before in-state service occurs. | Plaintiffs contend removal should wait until service on in-state defendants. | Out-of-state defendant can remove before in-state service. | Yes, removal before service on in-state defendants is permissible. |
| Which line of authority controls the interpretation of §1441(b) in this context. | Lina line supports strict nonremovability when unserved in-state defendants exist. | Second line (pre-service removal allowed) controls. | Second line controls; statutory text governs. |
| What is the court's policy stance on removal despite potential absurdity or public policy concerns. | Court respects plain statutory language; any policy fix belongs to Congress. |
Key Cases Cited
- In re Mehta, 310 F.3d 308 (3d Cir. 2002) (strict construction does not override the plain language of § 1441(b))
- Boyer v. Wyeth Pharm., Inc., 913 F.2d 108 (3d Cir. 1990) (removal before in-state service permissible under statute)
- In re Briscoe, 448 F.3d 201 (3d Cir. 2006) (objective intent to determine service before/after removal emphasized)
- Stan Winston Creatures, Inc. v. Toys 'R' Us, Inc., 314 F. Supp. 2d 177 (S.D.N.Y. 2003) (discusses historical policy behind removal rules and amendments)