Gorman v. Abbott Laboratories

• Decision Date: 17 March 1986
• Docket Number: Civ. A. No. 86-0035-S.
• Parties: Nancy GORMAN, Plaintiff, v. ABBOTT LABORATORIES, Eli Lilly & Co., The Upjohn Co., E.R. Squibb & Sons, Inc., Merck Sharpe & Dohme Co., Inc., and Burroughs-Wellcome Co., Defendants.
• Court: U.S. District Court — District of Rhode Island

629 F. Supp. 1196

Nancy GORMAN, Plaintiff, v. ABBOTT LABORATORIES, Eli Lilly & Co., The Upjohn Co., E.R. Squibb & Sons, Inc., Merck Sharpe & Dohme Co., Inc., and Burroughs-Wellcome Co., Defendants.

Civ. A. No. 86-0035-S.

United States District Court, D. Rhode Island.

March 17, 1986.

McBurney & McBurney, Cristine L. McBurney, John F. McBurney, Jr., Pawtucket, R.I., for plaintiff.

Haight, Dickson, Brown & Bonesteel, Robert L. Dickson, Santa Monica, Cal., and Hanson, Curran & Parks, William A. Curran, Dennis McCarten, Providence, R.I., for defendant Squibb.

Gunning LaFazia & Gnys, Edward L. Gnys, Jr., Providence, R.I., for defendant Abbott.

Roberts, Carroll, Feldstein & Tucker, Bruce G. Tucker, Dennis J. Roberts, II, Providence, R.I., for defendant Upjohn.

Rice, Dolan & Kershaw, John F. Dolan, Judith Crowell, Providence, R.I., for defendant Burroughs.

Gidley, Lovegreen & Sarli, Thomas D. Gidley, Providence, R.I., for defendant Merck.

Goodwin, Procter & Hoar, Marshall Simonds, Anthony M. Feeherry, Timothy J. Langella, Boston, Mass., and Edwards & Angell, Richard M. Borod, Providence, R.I., for defendant Lilly.

OPINION AND ORDER

SELYA, District Judge.

Rights of removal of various types have often been freighted with controversy.¹ This case falls in that mode and presents a question as to the propriety vel non of the transfer of this action from the Rhode Island Superior Court to this tribunal under the aegis of 28 U.S.C. § 1446(b). The tale follows.

I. TRAVEL

This case was commenced on May 24, 1985 in the state superior court. The plaintiff, Nancy Gorman, a citizen and resident of Rhode Island, complained of a single party defendant, Abbott Laboratories (Abbott). The gravamen of Gorman's action, then as now, sounded in negligence and strict product liability regarding the manufacture, distribution, and sale of diethylstilbestrol (DES). Gorman claimed that her mother, during pregnancy, ingested a form of DES which had been brought to market by Abbott, thereby causing the injuries later manifested by the plaintiff. She sought damages in the sum of $1,000,000.

Inasmuch as Abbott was and is an Illinois corporation with its principal place of business in that state, diversity jurisdiction existed under 28 U.S.C. § 1332(a), and the case was removable ab initio under 28 U.S.C. § 1441(a), Abbott apparently preferred the view from the state court, however, and neglected to petition for removal within the statutory period provided by 28 U.S.C. § 1446(b).² Abbott answered and the parties began to engage in substantial discovery. Along the way, the plaintiff decided to broaden her litigation horizons and did so by moving to amend her complaint to add additional party defendants. The motion to amend was granted in the state court on January 2, 1986. On the same date, the plaintiff filed her amended complaint.

The amended complaint did not materially alter the basic shape of Gorman's claim, but extended its reach to encompass a quintet of defendants not originally named under a theory of market share liability. See, e.g., McElhaney v. Eli Lilly & Co., 564 F.Supp. 265, 269-71 (D.S.D.1983); Hardy v. Johns-Manville Sales Corp., 509 F.Supp. 1353, 1357-60 (E.D.Tex.1981). See generally, Note, Market Share Liability: An Answer to the DES Causation Problem, 94 Harv.L.Rev. 668 (1984). The five neoteric defendants were each served no later than January 6, 1986.

As was true of the original defendant Abbott, each and all of the five afterthought defendants were entirely diverse vis-a-vis the plaintiff. The defendants in question are Eli Lilly & Co. (Lilly), the Upjohn Co. (Upjohn), E.R. Squibb & Sons, Inc. (Squibb), Merck Sharpe & Dohme Co., Inc. (Merck), and Burroughs-Wellcome Co. (BW). Lilly is an Indiana corporation with its principal place of business in that state. Upjohn is a Delaware corporation headquartered in Michigan. Squibb is also a Delaware corporation, having its principal place of business in New Jersey. Merck is a division of Merck & Co., Inc., a New Jersey corporation; its main place of business is in that state. And, BW is a North Carolina corporation bivouacked there.

Merck, acting alone and to its own behoof, promptly sought greener pastures. On January 17, 1986, well within the thirty day window provided by 28 U.S.C. § 1446(b), it removed the action to this court. The plaintiff seasonably moved to remand. Following a chambers conference held on February 5, 1986 in this court (at which a briefing schedule was established anent the motion to remand), all of the other defendants (including Abbott) joined in Merck's petition for removal. All interested parties have briefed the issue. Oral arguments were heard on March 11, 1984. This rescript, therefore, comprises the court's findings and conclusions in respect to the question presented.

II. THE STATUTORY FRAMEWORK

The right of removal is entirely statutory in nature, and the procedures for removal are cut from the same cloth. See 28 U.S.C. § 1441 et seq. It is well settled that the removal statutes must be strictly construed; a federal court may encroach upon a state court's right to hear and determine cases properly brought in a state forum only in fidelity to the express authority granted by Congress. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Bradley v. Maryland Casualty Co., 382 F.2d 415, 419 (8th Cir.1967); Perrin v. Walker, 385 F.Supp. 945, 947 (E.D.Ill.1974).

28 U.S.C. § 1446(b), quoted ante n. 2, is a salient integer within the procedural equation. The statute provides in substance that, if a (removal-eligible) case is commenced in a state tribunal and is not removed by petition filed within thirty days of a respondent's initial receipt of the complaint, it may not be removed thereafter. In regard to removal as in other contexts, "time is the thief you cannot banish." P. McGinley, Ballade of Lost Objects (1954). The thirty day limitation mandated by § 1446(b) has a dual purpose. On the one hand, it forecloses a defendant from adopting a "wait and see" approach in the state court; specifically, it prevents a second bite at the jurisdictional apple if a defendant (belatedly) perceives that the case is proceeding other than to his liking. See Wilson v. Intercollegiate (Big Ten) Conference Athletic Association, 668 F.2d 962, 965 (7th Cir.1982). On the second hand, the statutory requirement minimizes the delay and waste of resources involved in starting a case over in federal court after substantial proceedings have taken place in the state court. Id.

To be sure, several courts have held that compliance with the thirty day time limitation for removal is not a jurisdictional prerequisite in the literal sense, so that, in special circumstances, a federal court may hear a late-removed case when the plaintiff waives the right to have the action remanded to state court. E.g., Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir.1983); Adams v. Western Steel Buildings, Inc., 296 F.Supp. 759, 761 (D.Colo.1969); Meyers-Arnold Company v. Maryland Casualty Company, 248 F.Supp. 140, 145 (D.S. C.1965). But, although noncompliance with the time restraints does not, in itself, oust the federal court of jurisdiction, § 1446(b) is not a toothless dragon. The great weight of authority holds that, even if the statute is seen as modal rather than jurisdictional, "the time limitation is mandatory and must be strictly applied and where a party fails to file a petition within the applicable time limits he is thereafter precluded from doing so." Perrin v. Walker, 385 F.Supp. at 948. See also Percell's Inc. v. Central Telephone Co., 493 F.Supp. 156, 157 (D.Minn.1980); Friedrich v. Whittaker Corp., 467 F.Supp. 1012, 1014 (S.D.Tex. 1979); Vendetti v. Schuster, 242 F.Supp. 746, 754 (W.D.Pa.1965); Seigler v. American Surety Company, 151 F.Supp. 556, 559 (N.D.Cal.1957). To hold otherwise would, it seems, run athwart the fundamental purposes underlying congressional fashioning of the thirty day limitation period.

Thus, under the prevailing view, neither a stipulation of the parties nor an order of the state court may extend the time within which a removal petition may be docketed. See, e.g., Sunbeam Corp. v. Brazin, 138 F.Supp. 723, 725 (E.D.Ky. 1956); Burns v. Standard Life Insurance Co. of Indiana, 135 F.Supp. 904, 906-07 (D.Del.1955). In addition, the federal district court does not have authority to elongate this time span pursuant to either Fed. R.Civ.P. 6(b), Hamilton v. Hayes Freight Lines, 102 F.Supp. 594, 597 (E.D.Ky.1952), or Fed.R.Civ.P. 6(e). E.g., Ross v. Barrett Centrifugals, 580 F.Supp. 1510, 1512 (D.Me.1984); Youngson v. Lusk, 96 F.Supp. 285, 289 (D.Neb.1951).³

As a corollary proposition, it is established beyond peradventure that, by virtue of a fair reading of 28 U.S.C. § 1446(a), all defendants who have been served and who are eligible to join the removal petition must so join. Chicago, Rock Island and Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900); Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants Local 349, 427 F.2d 325, 326-27 (5th Cir. 1970); Bradford v. Harding, 284 F.2d 307, 309 (2nd Cir.1960); Friedrich, 467 F.Supp. at 1013. "In other words, unanimity among all defendants substantively entitled to remove is required for removal." Id.

There are three basic exceptions to this rule in a diversity case: (i) nominal or formal parties are not required to join in the removal petition, Albonetti v. GAF Corp.-Chemical Group, 520 F.Supp. 825, 827 (S.D.Tex.1981), (ii) defendants who have not yet been served with process at the time of the petition for removal are not required to conjoin, Pullman v. Jenkins, 305 U.S. 534, 540-41, 59 S.Ct. 347, 350, 85 L.Ed. 334 (1939), and (iii) distinct and independent claims or causes of action may be separately removable pursuant to 28 U.S.C. § 1441(c). Perrin, 385 F.Supp. at 947. The instant defend...