In Gentile v. Biogen Idec Inc., 2013 WL 1189497 (D. Mass. Feb. 21, 2013), a New York citizen who suffered from multiple sclerosis was prescribed Tysabri, a drug manufactured by defendants. While on the drug, she died of progressive multifocal leukoencephalopathy, a brain disease thought to be caused by immunosuppressant drugs such as Tysabri. Plaintiff, the administrator of decedent’s estate, sued the drug manufacturers -- Delaware corporations with their principal places of business in Massachusetts and California, respectively -- in Massachusetts Superior Court alleging the drug was defectively designed and defendants negligently failed to warn of its dangers.

Four days after plaintiff sued, and before either defendant had been served, the California-based defendant removed the suit to the United States District Court for the District of Massachusetts pursuant to 28 U.S.C. § 1441(a), on the ground that the suit was within the federal court’s jurisdiction to hear suits involving parties of diverse citizenship. Plaintiff served the Massachusetts-based defendant the next day and the California defendant the day after. Thereafter, plaintiff moved to remand the case to state court, pursuant to § 1441(b), which provides that a case may not be removed “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” (emphasis added). The court initially denied remand, but then on sua sponte reconsideration asked for supplemental briefing regarding whether § 1441(b) permits a non-resident defendant in multi-defendant litigation to remove a case filed in state court before any defendant has been served, in particular when a co-defendant is a citizen of the forum state and has been properly joined. On reconsideration, the court held that the plain language of the statute does not permit removal under such circumstances and ordered remand.

The court began its analysis by noting that federal district courts around the country have generally agreed that § 1441(b)’s plain language permits removal before service on any defendant, at least when done by a non-forum defendant prior to service upon a forum defendant; nevertheless, some courts have looked past this perceived plain meaning to reject pre-service removal for public policy reasons, particularly when attempted by the forum defendant. The court disagreed with these cases, however, holding that there is no tension between the text of and policy behind § 1441(b) when the statute is interpreted as requiring service on some defendant prior to removal. The court held that § 1441(b) assumes that at least one defendant already has been properly joined and served before removal is appropriate, as any contrary interpretation would render the statute’s use of the word “any” superfluous. Thus the lack of any party being properly joined and served does not mean that § 1441(b)’s “exception” to removal is inapplicable, but rather means that “a more basic assumption embedded in the statute -- that a party in interest had been served prior to removal -- has not been met.”

Moreover, the court held this interpretation is consistent with removal’s history and purpose, which was to afford non-forum defendants the ability to seek the protection of federal court against any perceived local bias in the state court chosen by plaintiff. The “properly joined and served” limitation in § 1441(b) was added in 1948 to prevent plaintiffs from engaging in the gamesmanship of defeating removal by improperly joining forum defendants whom they did not intend to pursue. If the court were to allow a non-forum defendant to remove the case from state court before service even has been effected on any party, however, it would be rewarding a different kind of gamesmanship. With modern technology, defendants with resources to monitor dockets throughout the country can obtain notice of litigation against them before service can be effected, which is precisely what occurred here. Thus, the court held, “[p]recluding removal until at least one defendant has been served protects against docket trolls with a quick finger on the trigger of removal.” Under the court’s interpretation of § 1441(b), a plaintiff seeking to legitimately join a forum defendant and avoid removal must serve that defendant before any others, and if he serves any non-forum defendant first, either that party or any other is free to remove the case to federal court before service on the forum defendant has been completed. This interpretation, the court held, both preserves the congressional purpose of § 1441(b) -- namely, preventing abuse by plaintiffs in forum selection -- and closes an unintended loophole allowing abuse by defendants seeking to escape a plaintiff’s legitimately chosen forum, all without doing violence to the statute’s plain language.