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We Never Get Bored: More On Pre-Service Removals

By James M. Beck and Mark Herrmann

Some blogs are all over Hurricane Gustav.

Some are investigating Sarah Palin.

Some analyze critical issues of the day.

And you've come here, where it's wall-to-wall coverage of whether defendants can remove an action in which a non-resident defendant has been named in a complaint, but not yet served with process.

(We're not sure whether that reflects more poorly on you or on us, but we welcome your company in our little world.)

(Not only that -- just think of the traffic we'll get on our blog today, with those mentions of Hurricane Gustav and Sarah Palin just waiting to be Googled.)

But we digress.

Add Vitatoe v. Mylan Pharmaceuticals, No. 1:08cv85, slip op. (N.D.W. Va. Aug. 13, 2008) (link here), to the cases allowing a non-resident defendant to remove a state court case before any defendant (including the one that resides in the state in which the complaint was filed) has been served. (For a smattering of our earlier, inexplicable fascination with this issue, click here, or here, or here, or just about anywhere.)

We won't explain the background again. Look at one of the earlier posts if you're not yet familiar with the issue.

In Vitatoe, the injured plaintiff allegedly suffered Stevens Johnson Syndrome as a result of having ingested Phenytoin Sodium, the therapeutic equivalent of Dilantin. Plaintiffs are citizens of Louisiana, and they named both Mylan Pharmaceuticals (a citizen of West Virginia) and Mylan, Inc. (a citizen of Pennsylvania) in the complaint that they filed in West Virginia state court. Diversity jurisdiction thus existed, but 28 U.S.C. Sec. 1441(b) would preclude removal if a party "properly joined and served as [a] defendant[]" were in the case. Defendants removed before anyone -- either Mylan Pharmaceuticals or Mylan -- had been served, thus avoiding the statutory bar on removal.

Judge Irene Keeley noted the lack of Supreme Court or Fourth Circuit authority on point, trotted through a bunch of district court decisions from courts within the Fourth Circuit (largely distinguishing those cases), and cited the many recent cases in the District of New Jersey struggling with this issue.

Ultimately, Judge Keeley was convinced that, "because Sec. 1441(b)'s language is unambiguous, the Court must apply its plain meaning." Id. at 15. "Vitatoe's construction of Sec. 1441(b) would require this Court to ignore the 'and served' language of the statute." Id. at 17.

The court thus denied plaintiffs' motion to remand.

(By the way, Hurricane Gustav has passed, seemingly largely without incident. Sarah Palin is . . . oh, heck! We always annoy half our readers if we ever say anything even remotely political. We'll just speculate that Governor Palin, or others in her family, have at some point ingested prescription drugs or been treated with medical devices.)

Full post as published by Drug and Device Law on September 03, 2008 (boomark / email).