Bailey v. Janssen Pharmaceutica, Inc.

• Decision Date: 29 July 2008
• Docket Number: No. 07-12258.,07-12258.
• Parties: Lori Jo BAILEY, as the Personal Representative of the Estate of Chad Beal, Plaintiff-Appellant, v. JANSSEN PHARMACEUTICA, INC., Janssen, L.P., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

536 F.3d 1202

Lori Jo BAILEY, as the Personal Representative of the Estate of Chad Beal, Plaintiff-Appellant, v. JANSSEN PHARMACEUTICA, INC., Janssen, L.P., et al., Defendants-Appellees.

No. 07-12258.

United States Court of Appeals, Eleventh Circuit.

July 29, 2008.

Richard A. Kupfer, Richard A. Kupfer, P.A., Delray Beach, FL, for Plaintiff-Appellant.

Jack R. Reiter, Michele Aimee Vargas, Adorno & Yoss, P.A., Coral Gables, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON and SILER,^* Circuit Judges.^**

ANDERSON, Circuit Judge:

Plaintiff-appellant, Lori Jo Bailey, brought this wrongful death action on behalf of Chad Edgar Beal ("Beal"), who died of fentanyl toxicity after he used a prescription patch manufactured, distributed, and retailed by the defendant companies. The action was originally filed in state court and removed under 28 U.S.C. § 1441(a), pursuant to § 1446(b), by the last-served defendant more than thirty days after service on the other defendants. Appellant moved to remand the action to state court, asserting that the notice of removal was untimely. The district court denied this motion and thereafter granted defendants' motions to dismiss with prejudice the first amended complaint on procedural and substantive grounds. Appellant challenges the district court's denial of her motion to remand and the dismissal of her complaint.

This case presents an issue of first impression for the Court with regards to whether, in multi-defendant litigation, the limitations period for removal expires upon thirty days from service on the first-served or last-served defendant under 28 U.S.C. § 1446(b). For the reasons that follow, we adopt the so-called "last-served" defendant rule and accordingly affirm the district court's denial of appellant's motion to remand the case to state court. We resolve the appeal of the motion to dismiss in an unpublished appendix to this opinion.

I. FACTS

The decedent, Chad Edgar Beal, died on March 5, 2004, after having received an allegedly lethal dose of a pain narcotic, fentanyl, via a transdermal skin patch prescribed to him by his doctor. The prescription patch, Duragesic, was manufactured by defendant Alza Corporation ("Alza") and distributed by defendant Janssen Pharmaceutica, Inc. ("Janssen"), both of which are subsidiaries of the holding company, defendant Johnson & Johnson, Inc. ("Johnson & Johnson"). The patch was sold to Beal at a south Florida store of defendant Walgreen Co. ("Walgreen").

Beal's administrator originally brought this wrongful death action in Palm Beach County, Florida, on February 28, 2006. The first defendant served was Walgreen, on May 12, 2006. The next defendant, Alza, was served on May 15, 2006, and defendant Janssen was served several days later on May 19, 2006. Alza and Janssen filed motions to dismiss in state court on June 12, 2006. The last defendant served was Johnson & Johnson, and it was served on June 22, 2006. All defendants utilized the same attorney to represent them in the proceedings in state court. On July 24, 2006, the last-served defendant, Johnson & Johnson, filed a notice of removal of the action based on complete diversity, pursuant to 28 U.S.C. § 1446(b).¹

Once the action was in federal court, the appellant timely sought remand, arguing that, under § 1446(b), the time for filing a notice of removal runs from the date of service on the first defendant—here, Walgreen on May 12, 2006—and therefore Johnson & Johnson's notice was not timely brought within 30 days of the May 12 service.² In its November 14, 2006, order, the district court adopted the "last-served" defendant rule, which permits each defendant to file a timely motion for removal within thirty days of receipt of service by that individual defendant. Under this rule, earlier-served defendants who may have waived their right to independently seek removal by failing to timely file a notice of removal—as Janssen, Alza, and Walgreen did here—may nevertheless consent to a timely motion by a later-served defendant. The district court, therefore, denied the motion to remand the action to state court, having found that the notice of removal was timely and that all defendants consented to the notice.

II. STANDARD OF REVIEW

Because it involves questions of federal subject matter jurisdiction, we review the denial of a motion to remand a removed state court action de novo. Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir.1998). Moreover, the interpretation of § 1446(b) is a question of law we also review de novo. United States v. Hooshmand, 931 F.2d 725, 737 (11th Cir.1991). We have jurisdiction to consider denial of a motion to remand upon the entry of a final order, which in this case was the district court's April 11, 2007, order, dismissing with prejudice the first amended complaint. Schell v. Food Mach. Corp., 87 F.2d 385, 387 (5th Cir.1937).

III. DISCUSSION

Section 1441(a) authorizes a defendant to seek removal of a suit originally brought in state court when the federal court has diversity jurisdiction over the cause of action. 28 U.S.C. § 1441(a) (2006). Section 1446 describes the appropriate removal procedure to invoke federal jurisdiction, and requires the defendant seeking removal to file a timely notice of removal stating the grounds for removal with the appropriate federal district court. 28 U.S.C. § 1446(a). In order to be timely,

[t]he notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ....

§ 1446(b). The Supreme Court held in Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 119 S.Ct. 1322, 1325, 143 L.Ed.2d 448 (1999), that the time-window in § 1446(b) "is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, `through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service."

On its face, § 1446(b) does not appear to address itself to multi-defendant litigation. Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 532 (6th Cir.1999) ("The statutory language itself contemplates only one defendant and thus does not answer the question of how to calculate the timing for removal in the event that multiple defendants are served at different times, one or more of them outside the original 30-day period."). In applying the statute to multi-defendant litigation, courts have split over whether each individual defendant has a right to seek removal within thirty days of receipt of service or whether the appropriate time window for § 1446(b) runs from receipt of service by the first-served defendant only³—in other words, whether the "first-served" or "last-served" defendant triggers § 1446(b)'s limitations period.⁴ Appellant urges us to adopt the first-served defendant rule and accordingly find that Johnson & Johnson's notice of removal was not timely under § 1446(b) because it was filed more than thirty days after receipt of service of process by the first-served defendant. For the following reasons, we reject appellant's argument and interpret § 1446(b) to permit each defendant thirty days in which to seek removal. We thus conclude that Johnson & Johnson's notice of removal was timely.

First, we observe that the trend in recent case law favors the last-served defendant rule. See, e.g., General Pump & Well, Inc. v. Laibe Supply Corp., No. CV607-30, 2007 WL 3238721, *2 (S.D.Ga. Oct. 31, 2007) ("More recently, however, the trend in the case law has been toward the later-served rule. The Sixth and the Eighth Circuits, several district courts in this circuit and a court in this district have followed the later served rule."). Among the four courts of appeals that have considered this issue, only the Fifth Circuit and (seemingly) the Fourth Circuit⁵ have adopted the first-served rule, and have held that a notice of removal is only timely if it is filed within thirty days of service of process on the first defendant. See Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir.1986) ("The general rule ... is that if the first served defendant abstains from seeking removal or does not effect a timely removal, subsequently served defendants cannot remove ... due to the rule of unanimity among defendants which is required for removal.") (internal quotations and punctuation omitted); Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir.1988) ("In cases involving multiple defendants, the thirty-day period begins to run as soon as the first defendant is served (provided the case is then removable)."); McKinney v. Bd. of Trustees of Md. Comm. Coll., 955 F.2d 924, 926 & n. 3 (4th Cir.1992).⁶ The most recent of these decisions, the Fourth Circuit's decision in McKinney, is now more than fifteen years old. Conversely, the two courts among the circuit courts to have adopted the last-served defendant rule have done so far more recently: the Eighth Circuit in 2001, and the Sixth Circuit in 1999. Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 755 (8th Cir.2001); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir.1999).

Second, we are convinced that both common sense and considerations of equity favor the last-served defendant rule. The first-served rule has been criticized by other courts as being inequitable to later-served defendants who, through no fault of their own,⁷ might, by virtue of the first-served rule, lose their statutory right to seek removal. Both the Eighth and Sixth Circuits endorsed the last-served defendant rule, at least in part, for equitable reasons. See Marano, 254 F.3d at 755 ("[The Fifth Circuit] did not consider, however, the `hardships' to a...