Thursday, November 29, 2007

More on Thomson v. Novartis

On Tuesday, we summarized and linked to Drug and Device Law's discussion of Thomson v. Novartis.  Apparently the forum-state-defendant issue discussed in Novartis is also the subject of other pending remand motions.  See the update here.  --RR

**Update:  Beck and Herrmann note that the New Jersey State Judge was apparently unamused and link to an order the judge issued earlier today.  Let's be candid, though, this practice is no more sinister than the other games that parties play.  Preservice removal to secure a federal forum doesn't offend sensibilities any more than a plaintiff serving a fringe, local defendant to secure a state forum against the primary out-of-state defendants.

| Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference More on Thomson v. Novartis :


Just for the sake of argument, I must disagree.

Pre-service removal offends my sensibilities more than strategic joinder of defendants to prevent removal. If the plaintiff joins entirely unassociated defendants, the joinder is improper and a doctrine exists to thwart his procedural horseplay. If he joins fringe in-state or non-diverse defendants to prevent removal, his action is arguably supported by a policy of deference to the plaintiff’s right (absent improper joinder) to structure his lawsuit.

Pre-service removal thwarts a number of well-established policies. It increases congestion in federal courts, negates the plaintiff’s right to first choice of forum, and could be judicially inefficient if the plaintiff was planning to join one or more non-diverse defendants against whom he has a valid joint claim.

While neither tactic gives me “warm fuzzy feelings,” I find pre-service removal more objectionable.

Nevertheless, those attorneys were damn clever. I wish I’d thought of it.

Posted by: Jeff | Dec 1, 2007 6:47:16 PM

I have to disagree with Jeff. I do not find it offensive for a defendant to remove the case before service in order to keep it in state court. I have absolutely no problem with smart defense attorneys taking advantage of a procedural option that has been left open to them by the plain language of the statute. If plaintiff's attorneys do not like this then they can lobby to have it changed.

For the most part we have given plaintiff's numerous procedural devices to assure that they get the court that they want. Lets not take away the device that smart defense attorneys have come up with to maintain a little control.

Posted by: Brooke | Dec 1, 2007 10:33:00 PM

I agree that the "plain language of the statute" does seem to permit pre-service removal. It prohibits removal when those "properly joined and served" as defendants are forum-state citizens. If a defendant knows that a lawsuit exists and the plaintiff has not yet served him, subsection (b) appears not to bar removal.

However, that language has been around since Congress enacted the statute in 1948. The Information Age has since arrived. I contend that, at that time, joinder and service were synonymous with initiation of a lawsuit. A defendant would generally not know of the suit until the plaintiff served him. The legislative intent was most likely to allow room for the fraudulent joinder doctrine, which had been developing through the 1900s, not permit proper (albeit clever) defendants to remove before the lawsuit had really “begun.”

It is Congress’s responsibility to express its intent clearly in its statutes. I think that, in this situation, Congress’s intent is clear when viewed in light of the date of enactment. Should the courts should be bound by “plain language” that plainly meant something different when it was used?

The legislature should amend the statute to clarify whether it finds this tactic acceptable, but I cannot support the argument that they impliedly approved of it when it was not yet foreseeable.

Posted by: Jeff | Dec 2, 2007 7:30:45 AM

When I first heard this issue, I thought there had to be some kind of waiver argument based on equitable principles. Honestly, I cannot say I have thoroughly researched this idea, but a quick search on Lexis produced a case that I think will support my argument.

Brooks v. Dun, 51 F. 138, 140 (W.D. Tenn. 1892), states concerning service of summons in a removal situation, "'It is only when [the defendant] pleads to the merits in the first instance, without insisting upon the illegality [of service], that the objection is deemed to be waived.'" If I were presented with this situation as a plaintiff, I would argue that the defendant, by removing and invoking the jurisdiction of the federal court, essentially pleads to the merits and waives service. The problem here would be that waiver and removal would occur simultaneously once the defendant files a notice of removal. Would the defendant then be considered to be "served", or waived service, at the time the action is removed?

Also, Brooks says that a defendant does not waive an objection to service by removing if the defendant objects to the service at the time of filing the notice of removal. Id. Therefore, could a defendant object to service when he removes such that he could maintain that he has not waived a complaint to proper service and was able to remove the action? In the situation we discussed in class, I would hope not because the objection would be improper until service became defective for whatever reason. But, if service has occurred and there was a defect in service, or if the time to serve a defendant had run without service, I think removal while maintaining an objection would be proper (as the equities of the parties have shifted due to the plaintiffs failure to properly serve the defendant).

But this is just my gut-reaction supported by about 15 minutes of research.

Posted by: Adam | Dec 4, 2007 5:21:35 PM

Post a comment