Gentile v. Biogen Idec, Inc.

• Decision Date: 21 February 2013
• Docket Number: Civil Action No. 11–11752–DPW.
• Citation: 934 F.Supp.2d 313
• Parties: Gerald GENTILE, as Administrator of the Estate of Diane Gentile, Deceased, Plaintiff, v. BIOGEN IDEC, INC., and Elan Pharmaceuticals, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

934 F.Supp.2d 313

Gerald GENTILE, as Administrator of the Estate of Diane Gentile, Deceased, Plaintiff,

v.BIOGEN IDEC, INC., and Elan Pharmaceuticals, Inc., Defendants.

Civil Action No. 11–11752–DPW.

United States District Court,

D. Massachusetts.

Feb. 21, 2013.

Kimberly A. Dougherty, Janet Jenner & Suggs, LLC, John B. Koss, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Boston, MA, Edward Blizzard, Sofia Bruera, Blizzard, McCarthy & Nabers, LLP, Houston, TX, for Plaintiff.

John B. Koss, Joseph G. Blute, Yalonda T. Howze, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Michael D. Riseberg, William F. Burke, Adler Pollock & Sheehan P.C., Boston, MA, Shira Yoshor, Baker Botts L.L.P., Stephen E. Scheve, Reed Smith LLP, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

In this diversity action, Gerald Gentile (“Gentile”), a New York citizen, as Administrator of the Estate of Diane Gentile (the “decedent”) filed suit in Massachusetts Superior Court claiming that Biogen Idec, Inc. (“Biogen”), a Massachusetts citizen, and Elan Pharmaceuticals, Inc. (“Elan”), a citizen of neither New York nor Massachusetts, caused the wrongful death of the decedent. Before either defendant was served, Elan—the non-forum defendant—removed the action to federal court pursuant to 28 U.S.C. § 1441(b). Elan then moved to transfer venue to the Western District of New York, while Gentile moved to remand the case to the Massachusetts state court, contending that Elan's removal was improper.

In an electronic order on September 30, 2012, I denied Gentile's motion to remand as well as Elan's motion to transfer. On closer examination and after sua sponte reconsideration, however, I have concluded that section 1441(b), by its plain language, does not permit removal of this non-federal question case before any defendant has actually been served. Under the interpretation I now adopt, removal is improper until at least one defendant has been served. A plaintiff thus may preserve its choice of state forum by serving the forum defendant before any others. In this context, I find Elan's race to an alternative courthouse from that properly chosen by the plaintiff to be in derogation of historic principles of federal court diversity jurisdiction. I will therefore order remand to the state court.

I. BACKGROUND

A. Facts

The decedent, a New York citizen, was diagnosed with multiple sclerosis in 1981. In October 2006, the decedent's doctors prescribed her Tysabri, a drug treatment for MS manufactured by Biogen in cooperation with Elan. Biogen is a Delaware corporation with a principal place of business in Massachusetts. Elan is a Delaware corporation with a principal place of business in California.

While on Tysabri, the decedent contracted Progressive Multifocal Leukoencephalopathy (“PML”), a typically fatal brain disease thought to be caused by immunosuppressant drugs like Tysabri. She passed away on December 15, 2009, with PML as the listed cause of death. Gentile, the decedent's spouse, was named Administrator of the decedent's estate.

B. Procedural History

On Friday, September 30, 2011, Gentile filed suit in Middlesex Superior Court against Biogen and Elan for the wrongful death of the decedent. On Tuesday, October 4, 2011, before either defendant had been served, Elan removed the suit to federal court pursuant to 28 U.S.C. § 1441(a). Gentile served Biogen the next day, on October 5, and Elan the following day, on October 6.

On October 31, 2011, Gentile moved to remand the case to the Middlesex Superior Court under 28 U.S.C. §§ 1441(b) and 1447(c). On November 30, 2011, Elan for its part moved to transfer the case to the Western District of New York. After a hearing on the two motions, the parties filed supplemental briefs directed to issues raised at the hearing. I denied both motions by electronic order on September 30, 2012. When I informed counsel at a hearing on February 12, 2013 of my intention to remand, the parties filed further supplemental briefing, which I have considered before issuing this Memorandum and Order.

Meanwhile, discovery proceeded after remand was initially denied on September 30, 2012, and plaintiff sought leave to file an amended complaint, Dkt. No. 36, to clarify that he brings both failure to warn and design defect claims against the defendants. At the hearing on February 12, 2013, I allowed the amendment and approved the parties' joint revised scheduling plan, Dkt. No. 40. I also received assurance from counsel that they would adhere to the agreed-upon schedule even in light of the amended complaint. My decision now to remand need have no effect on that schedule in the state court to which this case is remanded, unless, of course, the presiding judicial officer there should, despite the parties' agreement, choose to modify it.

II. RAPID REMOVAL PRECLUDES CONSIDERED REMAND

The question presented by Gentile's motion to remand may be summarized as follows: in multi-defendant litigation, may a non-forum defendant remove a case filed in state court—before any defendant has been served—when a properly joined co-defendant is a citizen of the forum state? The question has deeply divided district courts across the country and appears to be a matter of first impression in this district.

A. Legal Background

When a civil lawsuit is brought in state court a defendant may remove the case to the United States District Court for the district where the state case was filed, as long as the case falls within the “original jurisdiction” ¹ of the federal court. 28 U.S.C. § 1441(a). An important exception to this general rule exists when the removal is based on a federal court's diversity jurisdiction under 28 U.S.C. § 1332(a): such actions “shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b).² This is commonly referred to as the “forum defendant” rule. See Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 939 (9th Cir.2006).

There are, therefore, two ways by which a plaintiff can challenge a notice of removal. First, he can assert that the federal court lacks subject matter jurisdiction over the case because it does not come within the “original jurisdiction” of the federal court. 28 U.S.C. § 1441(a). It is undisputed here, however, that there is complete diversity among the parties such that this case falls within the diversity subject matter jurisdiction of this court. 28 U.S.C. § 1332. Second, a plaintiff can claim that there was a procedural defect in the removal. The forum defendant rule has been held to implicate the latter type of challenge. Farm Constr. Servs., Inc. v. Fudge, 831 F.2d 18, 22 (1st Cir.1987).

B. Analysis

Gentile contended that removal was improper under the forum defendant rule because Biogen is a citizen of Massachusetts, the forum state. Elan countered that because Biogen had not been “properly joined and served” at the time of removal, the forum defendant rule was inapplicable.

I have come to agree with Gentile that removal was improper, but arrive at that conclusion by a different road. I conclude that the plain language of section 1441(b) requires at least one defendant to have been served before removal can be effected. This reading is consistent with the purposes of section 1441(b). Congress almost certainly did not intend to sponsor the sort of race to the courthouse conducted here to make an end run around the forum defendant rule.

1. Treatment by Other District Courts

District courts are in disarray on the question presented by this case. ³ Many district courts have found that the “properly joined and served” language in section 1441(b) plainly allows a non-forum defendant to remove a case before service upon a forum defendant. Those courts disagree, however, as to whether that plain meaning must be followed or whether the result is so obviously contrary to congressional purpose that the bar to removal should nevertheless apply.

Some courts have concluded that the plain meaning of section 1441(b) allows removal by a non-forum defendant prior to service on a forum defendant. See e.g., In re Diet Drugs Prods. Liab. Litig., 875 F.Supp.2d 474, 477–78 (E.D.Pa.2012); Carrs v. AVCO Corp., No. 3:11–CV–3423–L, 2012 WL 1945629, at *3 (N.D.Tex. May 30, 2012); Regal Stone Ltd. v. Longs Drug Stores California, L.L.C., 881 F.Supp.2d 1123, 1126 (N.D.Cal.2012); Watanabe v. Lankford, 684 F.Supp.2d 1210, 1219 (D.Haw.2010); Ripley v. Eon Labs, Inc., 622 F.Supp.2d 137, 141–42 (D.N.J.2007). Some have allowed removal even by a forum defendant prior to service. E.g., Munchel v. Wyeth LLC, No. 12–906–LPS, 2012 WL 4050072, at *4 (D.Del. Sept. 11, 2012); Thomson v. Novartis Pharms. Corp., No. 06–6280(JBS), 2007 WL 1521138, at *4 (D.N.J. May 22, 2007).

Other courts have looked past such a perceived plain meaning to decline removal by a non-forum defendant prior to service on any defendant generally, e.g., Snider v. Sterling Airways, Inc., No. 12–CV–3054, 2013 WL 159813, at *1 (E.D.Pa. Jan. 15, 2013); Perez v. Forest Labs., Inc., 902 F.Supp.2d 1238, 1246 (E.D.Mo.2012), and specifically prior to service on a forum defendant, e.g., Swindell–Filiaggi v. CSX Corp., No. 12–6962, 922 F.Supp.2d 514, 516–17, 2013 WL 489015, at *1 (E.D.Pa. Feb. 8, 2013). Many courts have refused to honor removal in the particularly egregious case of removal by a forum defendant prior to service. E.g., Mass. Mut. Life Ins. Co. v. Mozilo, 2012 U.S. Dist. LEXIS 91478 (C.D. Cal. June 28, 2012); Ethington v. Gen. Elec. Co., 575 F.Supp.2d 855, 862 (N.D.Ohio 2008); Sullivan v. Novartis Pharms. Corp., 575 F.Supp.2d 640, 647 (D.N.J.2008); Holmstrom v. Harad, No. 05 C 2714, 2005 WL 1950672, at *1–2 (N.D.Ill. Aug. 11, 2005). But although these courts have apparently assumed that the plain language of section 1441(b) permits removal in all of the circumstances just described, they nevertheless have...