Drug and Device Blog
www.druganddevicelaw.blogspot.com
Dechert LLP
www.dechert.com
What’s Up With Removal Before Service?
Thursday, May 26, 2011
It was one of our biggest issues in the blog’s first couple of years – whether a defendant’s
removal of a case before service on: ( 1) the forum defendant where an out-of-state defendant
is sued in its own state’s court, or (2) anybody (including the removing defendant), would result
in the unserved forum defendant not counting for removal/remand purposes. Application of
plain statutory language meant that, in products cases where defendants had the bad fortune
of residing in a jurisdiction considered pro-plaintiff, out-of-state plaintiffs could not keep sharp-
eyed defendants from defeating the forum defendant rule by removing as soon as they learned
of an action.
We played a role in popularizing the tactic, blogging about it here, here, here, here, here, here,
here, here, here, here, and here. Trying to organize our multiple posts, we put up a
comprehensive post that tried to round up every removal-before-service decision we could find
(at least the ones taking the position we liked) back in October, 2009.
But since then – over a year and a half – we’ve said nothing about removal before service. It’s
not like we haven’t covered other removal issues…. Heck we discussed two removal issues
just this past week, but we hadn’t gone back to the well of pre-service removal.
Well, a reader recently emailed us and asked why.
We didn’t have a good reason, except maybe indolence (or Herrmann retiring). So we thought
we’d take a stroll down Memory Lane and see what, if anything, has happened on that front
since our last big post back in late 2009.
What we’ve found is that the dispute still simmers. Our side says, follow the “plain language”
of 28 U.S.C. §1441(b), which states that only defendants “properly joined and served” at the
time of removal count as forum defendants. The other side urges that the statutory language
should be ignored in favor or either some version of “intent” or the assertion that removal
before service is some sort of high-tech game that the courts don’t have to put up with
because it produces an “absurd” result.
There’s law going both ways – the dispute itself certainly hasn’t gone away. In fact, the most
recent case we’ve seen, Hawkins v. Cottrell, Inc., ___ F. Supp.2d ___, 2011 WL 1898867
(N.D. Ga. May 19, 2011), observed that “the federal district courts have been inundated with a
flood of cases addressing this issue.” Id. at *3. We'd like to think we contributed to that in
some small way.
