Santiago v. Barre Nat., Inc., Civ. A. No. 92-10227-WD.

• Decision Date: 08 June 1992
• Docket Number: Civ. A. No. 92-10227-WD.
• Citation: 795 F. Supp. 508
• Parties: Rosa SANTIAGO, Individually, and as the Next Friend of Jose Santos, a Minor, Plaintiffs, v. BARRE NATIONAL, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

795 F. Supp. 508

Rosa SANTIAGO, Individually, and as the Next Friend of Jose Santos, a Minor, Plaintiffs, v. BARRE NATIONAL, INC., Defendant.

Civ. A. No. 92-10227-WD.

United States District Court, D. Massachusetts.

June 8, 1992.

Thomas M. Kiley, Thomas M. Kiley, P.C. Associates, Boston, Mass., for plaintiffs.

Stephen D. Menard, Badger, Dolan, Parker & Cohen, Boston, Mass., for defendant.

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

I. Introduction

The plaintiff asserted negligence and breach of warranty claims against a pharmacy and two drug companies arising out of the use of a drug which she alleges left her minor son with serious permanent brain damage. The case was originally filed in Suffolk Superior Court in June 1990. After the nondiverse party settled out of court, defendant Barre National, Inc. removed the case to federal court in February 1992. The plaintiff, asserting the removal was not timely, then moved to remand the case to state court.

For reasons discussed below, I will allow the plaintiff's motion, and remand the case to state court.

II. Factual History

In November 1986 the plaintiff's 14-month-old son, Jose Santos, was diagnosed as having scabies, for which his doctor prescribed Kwell. Ms. Santiago filled the prescription at Penn's Pharmacy in Lawrence, MA and used the lotion on Jose numerous times during late November and early December 1986. Jose was subsequently diagnosed as having permanent neurological damage, including serious developmental delays, a seizure disorder, and cerebral palsy. Experts retained by the plaintiff are of the belief that Jose's physical injuries and limitations were caused by the use of the drug dispensed by Penn's Pharmacy, and that as a result of those injuries Jose will be permanently and totally disabled from all gainful employment.

In June 1990, Ms. Santiago filed this action in state court on behalf of her son Jose against Penn's Pharmacy and Block Drug Inc., the manufacturer of Kwell.¹ In her complaint, Ms. Santiago stated claims for negligence, breach of warranty, and violations of Mass.Gen.L. ch. 93A. Ms. Santiago claimed that Block marketed and dispensed Kwell despite the fact that it was unsafe, not of merchantable quality, and not fit for its intended purposes. She also claimed that Penn's Pharmacy had negligently failed to provide adequate dispensing information to her.

During the discovery which took place during the following months, the plaintiff learned that Penn's Pharmacy had dispensed to her not Kwell, but a generic version of Kwell.² Consequently, on January 29, 1991 Ms. Santiago filed an amended complaint to add Barre National, Inc., a manufacturer of the generic Kwell lotion (called Lindane lotion), as a defendant. Barre National is a foreign corporation, one of approximately twenty manufacturers of Lindane lotion, and allegedly the distributor of the drug which was dispensed by Penn's Pharmacy to Ms. Santiago.

The subsequent discovery process has included five other depositions as well as additional document production and interrogatories propounded by the plaintiff.

On April 11, 1991 the parties entered into a stipulation dismissing all claims against Block Drug, apparently out of agreement that there was insufficient evidence to identify Block's product, Kwell, as the product dispensed to Ms. Santiago. The stipulation left Penn's Pharmacy and Barre National as the remaining defendants in this suit.

In October 1991, Judge Hiller Zobel, to whom this case was assigned, held a scheduling conference at which he set a trial date of December 3, 1991. On November 8, 1991, Barre National moved to continue the trial. After a November 11th hearing on Barre National's motion, Judge Zobel took the case off the trial list and did not set a new trial date.

On January 28, 1992, the plaintiff settled her claim against Penn's Pharmacy for $700,000. That same day, Barre National filed its petition for removal pursuant to 28 U.S.C. § 1446(b), based upon diversity of the remaining parties (Santiago and Barre National). On February 24, 1992 the plaintiff moved pursuant to 28 U.S.C. § 1447(c) for remand of this case to Suffolk Superior Court, plus costs, expenses and attorney fees.

III. Discussion

A. The Removal Statute — The plaintiff has moved to remand this case to state court on grounds that the clear language of 28 U.S.C. § 1446(b) prohibits removal because Barre National's notice of removal was filed more than a year after this suit's commencement. I agree.

In November 1988 Congress enacted the Judicial Improvements and Access to Justice Act, Pub.L. No. 100-702, § 1016, 102 Stat. 4642, 4669-70 (1988) (the "Act"). Among other things, the Act amended the removal statute, 28 U.S.C. § 1446.

Section 1446(b) contains two time limitations with respect to civil cases such as this, i.e., those in which removal was initially unavailable.³ First, a defendant must remove the case within thirty days of receiving a pleading or other paper from which the defendant may ascertain that the case is or has become removable. In addition, as a result of the 1988 amendment, § 1446(b) contains a second time limitation for such defendants:

a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

28 U.S.C. § 1446(b).

Thus, the plain language of the statute forbids removal on diversity grounds of cases which commenced in state court more than one year previously. The statute contains no exceptions to its prohibitory language.

The question of when an action "commences" is to be determined by the applicable state law. See Kite v. Richard Wolf Medical Instruments Corp., 761 F.Supp. 597, 599 (S.D.Ind.1989); Greer v. Skilcraft, 704 F.Supp. 1570, 1582-83 (N.D.Ala.1989). Under Massachusetts Rule of Civil Procedure 3,

a civil statute is commenced by (1) mailing to the clerk of the proper court ... a complaint and an entry fee prescribed by law or (2) filing such complaint and an entry fee with such clerk.

Mass.R.Civ.P. 3. See also Finkel v. Natale Rota, Inc., 19 Mass.App.Ct. 55, 56 n. 2, 471 N.E.2d 396 (1984), rev. denied, 393 Mass. 1106, 474 N.E.2d 182 (1985). Therefore, this action commenced on June 5, 1990, when it was filed in Suffolk Superior Court and it is clear that defendant Barre National removed this case more than a year after it commenced, i.e., in January 1992. That is precisely what § 1446(b) was designed to prevent.

The language of § 1446(b) is clear and unambiguous. Moreover, the Act's legislative history reinforces the interpretation that the one-year bar is absolute. The impetus for the one-year limitation came from a congressional attempt to limit the diversity jurisdiction of the federal courts. When total elimination of diversity jurisdiction proved too controversial, Congress took the intermediate step of imposing, inter alia, the one year limit. See Greer v. Skilcraft, 704 F.Supp. 1570, 1575 n. 5 (N.D.Ala.1989) (en banc).⁴

The congressional history of the one-year limitation consists of the section-by-section analysis of Section 1016 contained in H.R.Rep. No. 889, 100th Cong., 2d Sess. 71-73 (1988), U.S.Code Cong. & Admin.News 1988, pp. 5982, 6031-34, which was subsequently presented to the Senate, 134 Cong.Rec. S16308-09 (1988). The pertinent analysis reads as follows:

Section (b)(2) amends 28 U.S.C. 1446(b) to establish a one-year limit on removal based on diversity jurisdiction as a means of reducing the opportunity for removal after substantial progress has been made in state court. The result is a modest curtailment in access to diversity jurisdiction. The amendment addresses problems that arise from a change of parties as an action progresses toward trial in state court. The elimination of parties may create for the first time a party alignment that supports diversity jurisdiction. Under the current section 1446(b), removal is possible whenever this event occurs, so long as the change of parties was voluntary as to the plaintiff. Settlement with a diversity-destroying defendant on the eve of trial, for example, may permit the remaining defendants to remove. Removal late in the proceedings may result in substantial delay and disruption.

This legislative history reflects congressional awareness that the proposed amendment to § 1446(b) would prohibit removal in exactly the kind of situation which this suit represents: a case in which 1) only state law causes of action are alleged; 2) diversity jurisdiction arises only because of the subsequent dismissal of one of the defendants; 3) substantial progress has already been made in the state court;⁵ and 4) the suit was removed more than a year after it was commenced. Section 1446(b) was designed to reach this situation with a per se prohibition.

Historically, "the creation of the right of removal in diversity cases was designed to secure a competent and impartial tribunal for one who has been brought unwillingly into state court, the supposition being that the state tribunal may not be impartial between its own clients and nonresidents." Saunders v. Wire Rope Corp., 777 F.Supp. 1281, 1284 (E.D.Va.1991). Removal statutes, however, are to be strictly construed in order to further principles of judicial economy and comity. See, e.g., American Home Assur. Co. v. Insular Underwriters Corp., 494 F.2d 317, 319 (1st Cir.1974).

Barre National urges flexibility, citing three cases in support of a relaxed view of the one-year time bar in § 1446(b). However, the cases cited by Barre National turn variously upon discrete interpretations of state law regarding when a case commences (a matter which is not at issue in this case), and involve circumstances giving rise to judicial concern that the plaintiff manipulated the judicial process in order to block removal by the defendant(s). Consequently, they are inapplicable to the case at bar.

For example, in Saunders v. Wire Rope Corp., 777 F.Supp. 1281 (E.D.Va....