Stefan v. Bristol-Myers Squibb Company et al

Filing 19

MEMORANDUM OPINION re 11 MOTION to Remand to State Court. Signed by Judge Richard G. Andrews on 12/6/2013. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

Cheryl J. Stefan, individually,
Plaintiff,
v.
Civil Action No. 13-1662-RGA

Bristol-Myers Squibb Company, SanofiAventis U.S., L.L.C., Sanofi-Aventis, U.S.,
Inc., and Sanofi-Synthelabo, Inc.,
Defendants.
MEMORANDUM

Each of the Defendants is organized under the laws of Delaware, and is therefore a
citizen of Delaware for purposes of diversity, as well as being a citizen of its principal place of
business, either New York or New Jersey. The Plaintiff is not a citizen of Delaware, New York,
or New Jersey, and therefore complete diversity exists. Plaintiff brought suit in Delaware
Superior Court. Prior to service of process, Defendants removed to this Court. 1 Plaintiff moves
for remand based on the "forum defendant" rule.
The "forum defendant rule," 28 U.S.C. § 1441(b), provides that "[a] civil action
otherwise removable solely on the basis of [diversity] jurisdiction ... may not be removed if any
ofthe parties in interest properly joined and served as defendants is a citizen of the State in
which such action is brought." Because the Defendants were not served, they argue that this
statutory bar to removal does not apply and therefore the case was properly removed and should
not be remanded to state court.

1

Plaintiff filed the Complaint on October 3, 2013. The notice of removal was filed October 7, 2013.

As an initial matter, the Court notes that "removal statutes are to be strictly construed
against removal and all doubts should be resolved in favor of remand." Steel Valley Auth. v.

Union Switch & Signal Div., 809 F .2d 1006, 1010 (3d Cir. 1987). Additionally, if "there is any
doubt as to the propriety of removal, [the] case should not be removed to federal court." Brown

v. Francis, 75 F.3d 860, 865 (3d Cir. 1996). Clearly, the law favors remand when there is any
doubt as to whether the case should have been removed.
Diversity jurisdiction is intended to prevent the prejudice that an out of state defendant
might be subject to when sued in state court. See Erie RR. Co. v. Tompkins, 304 U.S. 64, 74
(1938) ("Diversity of citizenship jurisdiction was conferred in order to prevent apprehended
discrimination in state courts against those not citizens of the state."). Where defendants are
citizens of the forum state, no such prejudice is likely to exist, and so the forum defendant rule
bars removal. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84 (2005) ("Defendants may remove
an action on the basis of diversity of citizenship ifthere is complete diversity between all named
plaintiffs and all named defendants, and no defendant is a citizen of the forum State.").
The inclusion of the "properly joined and served" language in § 1441 (b) prevents
plaintiffs from defeating removal by joining a forum defendant whom they do not intend to
serve. See Sullivan v. Novartis Pharmaceuticals Corp., 575 F. Supp. 2d 640, 643 (D.N.J. 2008);

Stan Winston Creatures, Inc. v. Toys "R" Us, Inc., 314 F. Supp. 2d 177, 181 (S.D.N.Y. 2003).
Here, construing the language of the statute as defendants propose would eviscerate the forum
defendant rule and lead to the very gamesmanship the rule was intended to prevent.
In interpreting a statute, the court's function "is to construe the language so as to give
effect to the intent of Congress." US. v. Am. Trucking Ass 'ns, 310 U.S. 534, 542 (1940).
Congress cannot have intended to allow for circumvention of the forum defendant rule by

avoiding or delaying service of process. Indeed, it is unlikely that Congress even thought about
this issue when the statute was originally drafted. Prior to the days of electronic docketing, a
defendant would likely be unaware of a lawsuit prior to process. There would be no opportunity
to remove in order to circumvent the plaintiffs forum choice. This also accords with the general
rule that a plaintiffs forum choice is given deference. C. R. Bard, Inc. v. Guidant Corp., 997 F.
Supp. 556, 562 (D. Del. 1998); Cypress Semiconductor Corp. v. Integrated Circuit Sys., Inc.,
2001 WL 1617186, at *2 (D. Del. Nov. 28, 2001); Padcom, Inc. v. NetMotion Wireless, Inc.,
2004 WL 1192641, at *7 (D. Del. May 24, 2004).
Defendants point out that Congress in 2011 amended § 1441 (b) but retained the
"properly joined and served" language. They argue that the reenactment adopted the judicial
interpretation, which they contend is the plain meaning of the statute. Yet Defendants recognize
that courts are split on this issue. 2 When the cases send a mixed message, there is no way of
knowing which judicial interpretation of the statute Congress intended to adopt. Without more,
Congressional intent cannot be reliably divined from changing one part of a statute and leaving
another part intact.
Because the language of§ 1441 (b), interpreted as Defendants suggest, would bring about
a nonsensical result that, in my opinion, would indisputably be at odds with the Congressional
intent in enacting the forum defendant rule, the Court finds that removal under § 1441 (b) was
improper. This case is remanded to state court. An appropriate order will be entered. 3

2

Not only are courts across the nation split, but the District of Delaware is itself split on this issue. See Laugelle v.
Bell Helicopter Textron, Inc., 2012 WL 368220 (D. Del. Feb. 2, 2012) (remanding); Hutchins v. Bayer Corp., 2009
WL 192468 (D. Del. Jan. 23, 2009) (recommending that court deny remand); Munchel v. Wyeth LLC, 2012 WL
4050072 (D. Del. Sept. 11, 2012) (denying motion to remand).
3

Given the split in the case law, the Court will exercise its discretion to decline to award attorney's fees and costs to
Plaintiff.