Traslavina v. MDS Pharma Services Incorporated et al

Filing 12

ORDER granting Plaintiff's 6 Motion to Remand to State Court. Signed by Judge Frederick J Martone on 5/26/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anna Laura Traslavina, surviving mother)
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of deceased minor L.V.T.,
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Plaintiff,
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vs.
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MDS Pharma Services Inc.; Tocagen, Inc.;)
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Scott Sharples,
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Defendants.
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No. CV-11-0742-PHX-FJM
ORDER

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The court has before it plaintiff’s motion to remand to state court (doc. 6), defendants’
response (doc. 10), and plaintiff’s reply (doc. 11).

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Plaintiff filed this action in the Superior Court of Arizona in Maricopa County against

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MDS Pharma Services, Inc. (“MDS”), a Nebraska corporation, Tocagen, Inc., a California

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corporation, and Scott Sharples, an Arizona resident. The action was then removed to federal

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court. Plaintiff contends that removal is not proper under the forum defendant rule in 28

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U.S.C. § 1441(b) because Scott Sharples is an Arizona resident.

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Section 1441(b) provides that an action is “removable only if none of the parties in

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interest properly joined and served as defendants is a citizen of the State in which such action

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is brought.” Defendants concede that Scott Sharples is an Arizona resident, but argue that

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because he was not served at the time MDS removed this action, removal is proper.

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Defendants point to the general principle that challenges to removal require an inquiry into

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the circumstances at the time the notice of removal is filed. Spencer v. United States Dist.

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Court, 393 F.3d 867, 871 (9th Cir. 2004).

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Plaintiff filed her complaint in state court on April 12, 2011. MDS filed its notice of

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removal just two days later, on April 14, 2011, before any defendant had been served.

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Defendant Sharples was served six days after plaintiff filed her complaint.

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The “properly joined and served” language of 28 U.S.C. § 1441(b) is widely

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interpreted, not as an effort to expand removal jurisdiction, but as reflecting a Congressional

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intent to prevent the fraudulent joinder of forum defendants in order to avoid removal.

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Sullivan v. Novartis Pharm. Corp., 575 F. Supp. 2d 640, 644 (D.N.J. 2008). Courts have

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refused to apply § 1441(b) literally where doing so “would produce a result demonstrably at

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odds with Congressional intent underpinning the forum defendant rule,” Ethington v. General

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Elec. Co., 575 F. Supp. 2d 855, 864 (N.D. Ohio 2008), and instead would “promote[ ]

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gamesmanship on the part of removing defendants.” Standing v. Watson Pharm., Inc., 2009

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WL 842211, at *3 (C.D. Cal. March 26, 2009); see also Sullivan, 575 F. Supp. 2d at 645

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(“Indeed, it is inconceivable that Congress, in adding the ‘properly joined and served’

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language, intended to create an arbitrary means for a forum defendant to avoid the forum

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defendant rule simply by filing a notice of removal before the plaintiff is able to effect

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process.”).

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Here, MDS removed this action a mere two days after the complaint was filed. Thus,

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plaintiffs did not have a meaningful opportunity to effectuate service before defendants filed

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their notice of removal. Sharples was effectively served only 6 days after the complaint was

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filed. It appears from the complaint that Sharples is integral to plaintiff’s claims and was not

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joined solely for the purpose of defeating removal. Because “service is not the key factor in

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determining diversity,” Preaseau v. Prudential Ins. Co., 591 F.2d 74, 78 (9th Cir. 1979), we

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conclude that, under the circumstances of this case, the purpose of § 1441(b) is not served

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by ignoring the Arizona defendant. Therefore, we conclude that removal was improper under

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§ 1441(b) and accordingly we remand this case to the Superior Court of Arizona in Maricopa
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County.

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IT IS ORDERED GRANTING plaintiff’s motion to remand (doc. 6).

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DATED this 26th day of May, 2011.

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