Howard et al v. Genentech, Inc. et al

Filing 34

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 10 Motion to Remand to State Court (Woodlock, Douglas) (Main Document 34 replaced on 2/21/2013) (Moore, Kellyann).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DALE HOWARD, as Personal
Representative of the Estate
of KIMBERLY NOVAK HOWARD,
Decedent, and DALE HOWARD,
Individually,
Plaintiff,
v.
GENENTECH, INC., GENENTECH
USA, INC., and BIOGEN IDEC,
INC.,
Defendants.

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CIVIL ACTION NO.
12-11153-DPW

MEMORANDUM AND ORDER
February 21, 2013
On June 22, 2012, Dale Howard, a Minnesota citizen, filed
suit in Massachusetts Superior Court claiming that Genentech,
Inc. and Genentech USA (“Genentech”), California citizens, and
Biogen IDEC, Inc. (“Biogen”), a citizen of Massachusetts, caused
the wrongful death of the decedent.

Genentech, asserting

diversity jurisdiction, removed the case to this court on June
27, 2012, before any defendant had been served.
For the reasons set forth more fully in the Memorandum and
Order issued today in Gentile v. Biogen IDEC, Inc., No. 11-11752
(D. Mass. Feb. 21, 2013) (slip op.), attached hereto as Exhibit
“A,” I have concluded 28 U.S.C. § 1441(b) did not permit removal

1

by Genentech prior to service on any defendant.

Remand is

therefore appropriate.
There is one additional wrinkle to this case not found in
Gentile.

Here, following removal of the action by Genentech,

plaintiff served non-forum defendant Genentech on July 17, 2012,
and then served forum defendant Biogen on July 24, 2012.
Plaintiff thereafter filed his motion to remand on July 27, 2012.
In Gentile, I concluded that 28 U.S.C. § 1441(b) permits
removal by a non-forum defendant despite the presence of a forum
defendant named in the complaint, as long as the non-forum
defendant has been served and removes the case prior to service
on the forum defendant.

In other words, to eliminate frustration

by removal of their initial choice of a state forum in a case
involving forum and non-forum defendants, plaintiffs “face the
modest burden of serving [the forum] defendant before any
others.”

Gentile, slip op. at 20.

Nonetheless, my opinion in Gentile makes clear that removal
by Genentech would only be proper in this case between July 17
(the date of service on a non-forum defendant, at which point
some defendant would have been served and removal would have been
proper) and July 27 (the date of service on the forum defendant,
at which point removal would have been improper based on the
forum defendant rule).

Having already filed a notice of removal

on June 27, weeks before any party defendant had been served,

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however, Genentech chose not to avail itself of the later window
plaintiff otherwise might have provided for removal.

This raises

the issue of abuse of the forum defendant rule by the non-forum
defendant, which a plain reading of section 1441(b) as described
in Gentile does not permit.

The service of forum defendant

Biogen before removal was challenged also assured that the
question whether plaintiff engaged in fraudulent joinder could be
addressed; but Genentech has not raised the issue of such abuse
in this case.
Howard’s motion to remand (Dkt. No. 10) is therefore
GRANTED.

This case shall be REMANDED to Middlesex Superior

Court, where it was originally filed.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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EXHIBIT “A”

Case 1:11-cv-11752-DPW Document 52 Filed 02/21/13 Page 1 of 21

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GERALD GENTILE, as
Administrator of the Estate
of DIANE GENTILE, Deceased,
Plaintiff,
v.
BIOGEN IDEC, INC., and ELAN
PHARMACEUTICALS, INC.,
Defendants.

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CIVIL ACTION NO.
11-11752-DPW

MEMORANDUM AND ORDER
February 21, 2013
In this diversity action, Gerald Gentile (“Gentile”), a New
York citizen, as Administrator of the Estate of Diane Gentile
(the “decedent”) filed suit in Massachusetts Superior Court
claiming that Biogen Idec, Inc. (“Biogen”), a Massachusetts
citizen, and Elan Pharmaceuticals, Inc. (“Elan”), a citizen of
neither New York nor Massachusetts, caused the wrongful death of
the decedent.

Before either defendant was served, Elan--the non-

forum defendant--removed the action to federal court pursuant to
28 U.S.C. § 1441(b).

Elan then moved to transfer venue to the

Western District of New York, while Gentile moved to remand the
case to the Massachusetts state court, contending that Elan’s
removal was improper.
In an electronic order on September 30, 2012, I denied
Gentile’s motion to remand as well as Elan’s motion to transfer.

Case 1:11-cv-11752-DPW Document 52 Filed 02/21/13 Page 2 of 21

On closer examination and after sua sponte reconsideration,
however, I have concluded that section 1441(b), by its plain
language, does not permit removal of this non-federal question
case before any defendant has actually been served.

Under the

interpretation I now adopt, removal is improper until at least
one defendant has been served.

A plaintiff thus may preserve its

choice of state forum by serving the forum defendant before any
others.

In this context, I find Elan’s race to an alternative

courthouse from that properly chosen by the plaintiff to be in
derogation of historic principles of federal court diversity
jurisdiction.

I will therefore order remand to the state court.
I.

A.

BACKGROUND

Facts
The decedent, a New York citizen, was diagnosed with

multiple sclerosis in 1981.

In October 2006, the decedent’s

doctors prescribed her Tysabri, a drug treatment for MS
manufactured by Biogen in cooperation with Elan.

Biogen is a

Delaware corporation with a principal place of business in
Massachusetts.

Elan is a Delaware corporation with a principal

place of business in California.
While on Tysabri, the decedent contracted Progressive
Multifocal Leukoencephalopathy (“PML”), a typically fatal brain
disease thought to be caused by immunosuppressant drugs like
Tysabri.

She passed away on December 15, 2009, with PML as the

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listed cause of death.

Gentile, the decedent’s spouse, was named

Administrator of the decedent’s estate.
B.

Procedural History
On Friday, September 30, 2011, Gentile filed suit in

Middlesex Superior Court against Biogen and Elan for the wrongful
death of the decedent.

On Tuesday, October 4, 2011, before

either defendant had been served, Elan removed the suit to
federal court pursuant to 28 U.S.C. § 1441(a).

Gentile served

Biogen the next day, on October 5, and Elan the following day, on
October 6.
On October 31, 2011, Gentile moved to remand the case to the
Middlesex Superior Court under 28 U.S.C. §§ 1441(b) and 1447(c).
On November 30, 2011, Elan for its part moved to transfer the
case to the Western District of New York.

After a hearing on the

two motions, the parties filed supplemental briefs directed to
issues raised at the hearing.

I denied both motions by

electronic order on September 30, 2012.

When I informed counsel

at a hearing on February 12, 2013 of my intention to remand, the
parties filed further supplemental briefing, which I have
considered before issuing this Memorandum and Order.
Meanwhile, discovery proceeded after remand was initially
denied on September 30, 2012, and plaintiff sought leave to file
an amended complaint, Dkt. No. 36, to clarify that he brings both
failure to warn and design defect claims against the defendants.

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At the hearing on February 12, 2013, I allowed the amendment and
approved the parties’ joint revised scheduling plan, Dkt. No. 40.
I also received assurance from counsel that they would adhere to
the agreed-upon schedule even in light of the amended complaint.
My decision now to remand need have no effect on that schedule in
the state court to which this case is remanded, unless, of
course, the presiding judicial officer there should, despite the
parties’ agreement, choose to modify it.
II.

RAPID REMOVAL PRECLUDES CONSIDERED REMAND

The question presented by Gentile’s motion to remand may be
summarized as follows: in multi-defendant litigation, may a nonforum defendant remove a case filed in state court--before any
defendant has been served--when a properly joined co-defendant is
a citizen of the forum state?

The question has deeply divided

district courts across the country and appears to be a matter of
first impression in this district.
A.

Legal Background
When a civil lawsuit is brought in state court a defendant

may remove the case to the United States District Court for the
district where the state case was filed, as long as the case
falls within the “original jurisdiction”1 of the federal court.

1

Although there are a number of ways a case may fall within the
original jurisdiction of the federal courts, this case only
implicates one of them, diversity jurisdiction under 28 U.S.C.
§ 1332.
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28 U.S.C. § 1441(a).

An important exception to this general rule

exists when the removal is based on a federal court’s diversity
jurisdiction under 28 U.S.C. § 1332(a): such actions “shall be
removable only if none of the parties in interest properly joined
and served as defendants is a citizen of the State in which such
action is brought.”

28 U.S.C. § 1441(b).2

This is commonly

referred to as the “forum defendant” rule.

See Lively v. Wild

Oats Mkts., Inc., 456 F.3d 933, 939 (9th Cir. 2006).
There are, therefore, two ways by which a plaintiff can
challenge a notice of removal.

First, he can assert that the

federal court lacks subject matter jurisdiction over the case
because it does not come within the “original jurisdiction” of
the federal court.

28 U.S.C. § 1441(a).

It is undisputed here,

however, that there is complete diversity among the parties such

2

After this lawsuit was filed, Congress amended section 1441 in
the Federal Courts Jurisdiction and Venue Clarification Act of
2011, Pub. L. No. 112-63, 125 Stat. 758 (2011). The amended
version applies to actions commenced on or after January 5, 2012.
See 28 U.S.C. § 1332 note. This action having been commenced in
September 2011 and removed in October 2011, the amended statute
does not apply here. In any event, the amendments did not
materially change the relevant language of the statute, as I
discuss in Part II.B.2, infra. Compare 28 U.S.C. § 1441(b)
(2006) (noting that an action founded on diversity of citizenship
“shall be removable only if none of the parties in interest
properly joined and served as defendants is a citizen of the
State in which such action is brought”), with 28 U.S.C. §
1441(b)(2) (2011) (“A civil action otherwise removable solely on
the basis of the jurisdiction under section 1332(a) of this title
may not be removed if any of the parties in interest properly
joined and served as defendants is a citizen of the State in
which such action is brought.”).
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that this case falls within the diversity subject matter
jurisdiction of this court.

28 U.S.C. § 1332.

Second, a

plaintiff can claim that there was a procedural defect in the
removal.

The forum defendant rule has been held to implicate the

latter type of challenge.

Farm Constr. Servs., Inc. v. Fudge,

831 F.2d 18, 22 (1st Cir. 1987).
B.

Analysis
Gentile contended that removal was improper under the forum

defendant rule because Biogen is a citizen of Massachusetts, the
forum state.

Elan countered that because Biogen had not been

“properly joined and served” at the time of removal, the forum
defendant rule was inapplicable.
I have come to agree with Gentile that removal was improper,
but arrive at that conclusion by a different road.

I conclude

that the plain language of section 1441(b) requires at least one
defendant to have been served before removal can be effected.
This reading is consistent with the purposes of section 1441(b).
Congress almost certainly did not intend to sponsor the sort of
race to the courthouse conducted here to make an end run around
the forum defendant rule.

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Case 1:11-cv-11752-DPW Document 52 Filed 02/21/13 Page 7 of 21

1.

Treatment by Other District Courts

District courts are in disarray on the question presented by
this case.3

Many district courts have found that the “properly

joined and served” language in section 1441(b) plainly allows a
non-forum defendant to remove a case before service upon a forum
defendant.

Those courts disagree, however, as to whether that

plain meaning must be followed or whether the result is so
obviously contrary to congressional purpose that the bar to
removal should nevertheless apply.
Some courts have concluded that the plain meaning of
section 1441(b) allows removal by a non-forum defendant prior to
service on a forum defendant.

See e.g., In re Diet Drugs Prods.

Liab. Litig., 875 F. Supp. 2d 474, 477-78 (E.D. Pa. 2012); Carrs
v. AVCO Corp., No. 3:11-CV-3423-L, 2012 WL 1945629, at *3 (N.D.
Tex. May 30, 2012); Regal Stone Ltd. v. Longs Drug Stores
California, L.L.C., 881 F. Supp. 2d 1123, 1126 (N.D. Cal. 2012);
Watanabe v. Lankford, 684 F. Supp. 2d 1210, 1219 (D. Haw. 2010);
Ripley v. Eon Labs, Inc., 622 F. Supp. 2d 137, 141-42 (D.N.J.
3

Likely because remands in this area are not subject to
appellate review, there is no circuit court authority directly on
point to guide district courts. Under 28 U.S.C. § 1447(d), “[a]n
order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise.” See, e.g.,
Holmstrom v. Peterson, 492 F.3d 833, 834 (7th Cir. 2007) (circuit
court lacked appellate jurisdiction over district court remand
order based on forum defendant rule even though forum defendant
not yet served). And after final judgment in a removed case that
is not remanded, only the most disappointed and dogged of parties
would have sufficient incentive to pursue this threshold issue.
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2007).

Some have allowed removal even by a forum defendant prior

to service.

E.g., Munchel v. Wyeth LLC, No. 12-906-LPS, 2012 WL

4050072, at *4 (D. Del. Sept. 11, 2012); Thomson v. Novartis
Pharms. Corp., No. 06-6280 (JBS), 2007 WL 1521138, at *4 (D.N.J.
May 22, 2007).
Other courts have looked past such a perceived plain meaning
to decline removal by a non-forum defendant prior to service on
any defendant generally, e.g., Snider v. Sterling Airways, Inc.,
No. 12-CV-3054, 2013 WL 159813, at *1 (E.D. Pa. Jan. 15, 2013);
Perez v. Forest Labs., Inc., No. 4:12CV01064, 2012 WL 4811123, at
*6 (E.D. Mo. Oct. 10, 2012), and specifically prior to service on
a forum defendant, e.g., Swindell-Filiaggi v. CSX Corp., No.
12-6962, 2013 WL 489015, at *1 (E.D. Pa. Feb. 8, 2013).

Many

courts have refused to honor removal in the particularly
egregious case of removal by a forum defendant prior to service.
E.g., Mass. Mut. Life Ins. Co. v. Mozilo, 2012 U.S. Dist. LEXIS
91478 (C.D. Cal. June 28, 2012); Ethington v. Gen. Elec. Co., 575
F. Supp. 2d 855, 862 (N.D. Ohio 2008); Sullivan v. Novartis
Pharms. Corp., 575 F. Supp. 2d 640, 647 (D.N.J. 2008); Holmstrom
v. Harad, No. 05 C 2714, 2005 WL 1950672, at *1-2 (N.D. Ill. Aug.
11, 2005).

But although these courts have apparently assumed

that the plain language of section 1441(b) permits removal in all
of the circumstances just described, they nevertheless have

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arrived at different outcomes due to policy considerations or an
effort to prevent “absurd” results.
At least one district court, by contrast, concluded that the
text and purpose of section 1441(b) are not necessarily in
tension.

See Hawkins v. Cottrell, Inc., 785 F. Supp. 2d 1361

(N.D. Ga. 2011).

Where other district courts had focused

narrowly on the “properly joined and served” language of
section 1441(b) in isolation, in Hawkins Judge O’Kelley read that
language in context with the rest of the sentence.
Section 1441(b) allows removal “only if none of the parties in
interest properly joined and served as defendants” were forum
defendants.

Judge O’Kelley observed that the use of “none”

implies that there is at least one defendant that is a party in
interest that has been properly joined and served.

Without this

precondition for removal, the use of “none” would be superfluous.
Hawkins, 785 F. Supp. 2d at 1369.
Other courts have approached the issue of pre-service
removal in a manner consistent with the approach Judge O’Kelley
outlined in Hawkins.

Cf., e.g., May v. Haas, No. 12-01791-MCE,

2012 WL 4961235, at *2-3 (E.D. Cal. Oct. 16, 2012) (permitting
removal by non-forum defendant who had been served and removed
action prior to service on forum defendant, but implying that
remand would have been appropriate if removal attempted prior to
service on any defendant); Banks v. Kmart Corp., No. 12-607, 2012

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WL 707025, at *2 (E.D. Pa. Mar. 6, 2012) (“plaintiffs’ litigation
strategy facilitated removal to [federal court] because the
plaintiffs served the non-forum defendant several weeks prior to
serving the forum defendant in this case”).
2.

Plain Language

I agree with Judge O’Kelley’s careful reading of all the
words in section 1441(b), as it read before the 2011 amendment
and as applicable here.

Section 1441(b) provided that a

“[diversity] action shall be removable only if none of the
parties in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.”

When

functioning as a pronoun, which “none” does in section 1441(b),
it means “not any.”
(3d ed. 1986).

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1536

“Any,” in turn, means “one or more

indiscriminately from all those of a kind.”

Id. at 97.4

Inherent in the definition is some number of the “kind” from
which the “one or more” can be drawn.

4

Accordingly, the use of

Similarly, WEBSTER’S NEW INTERNATIONAL DICTIONARY (2d ed. 1959)
(“WEBSTER’S SECOND”) defined “any,” when used as a pronoun, to mean
“[a]ny or one indiscriminately from all those of a kind implied
in the context or expressed with a partitive of.” Id. at 121.
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1196 (4th ed.
2000) (“AMERICAN HERITAGE DICTIONARY”) and the OXFORD AMERICAN DICTIONARY
(1980) do not specify that “any” when used as a pronoun means
drawing from some quantity of a kind, but in contrast to both
editions of WEBSTER’S, they also do not specifically consider the
use of “any” followed by the partitive “of.”
The use of “any” as an adjective is discussed in footnote 7,
infra.
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“none” and definite article “the” when referring to “parties”
assumes that there is one or more party in interest that has been
properly joined and served already at the time of removal, among
which may or may not be a forum-state defendant.

Thus,

section 1441(b) conditioned removal on some defendant having been
served.
The amendments to section 1441(b) do not change the
statute’s plain meaning in this respect.

In its current form,

section 1441(b)(2) precludes removal “if any of the parties in
interest properly joined and served as defendants” is a forum
defendant.

True, the statute as amended places this language in

an exception to removal, rather than a requirement for removal.
But that does not change the fact that the statute assumes at
least one party has been served; ignoring that assumption would
render a court’s analysis under the exception nonsensical and the
statute’s use of “any” superfluous.

This would be contrary to

the cardinal rule of statutory construction that “[a]ll words and
provisions of statutes are intended to have meaning and are to be
given effect, and no construction should be adopted which would
render statutory words or phrases meaningless, redundant or
superfluous.”

United States v. Ven-Fuel, Inc., 758 F.2d 741,

751-52 (1st Cir. 1985).

Thus the lack of a party properly joined

and served does not mean an “exception” to removal is
inapplicable, but rather means that an even more basic assumption

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embedded in the statute--that a party in interest had been served
prior to removal--has not been met.
I might stop here, given my obligation to apply the plain
meaning of the language of the statute, Dep’t of Hous. & Urban
Dev. v. Rucker, 535 U.S. 125, 132 (2002), absent absurd results,
which are not present here, Gen. Motors Corp. v. Darling’s, 444
F.3d 98, 108 (1st Cir. 2006).

Nevertheless, for completeness of

explanation, I will detail the history and purpose of removal-including section 1441(b) specifically--which I find provide
further support for my reading of the text of the statute.
3.

History and Purpose of Removal

The removal doctrine has been incorporated in federal court
jurisprudence since the Judiciary Act of 1789.
of 1789 § 12, 1 Stat. 72, 79-80 (1789).

See Judiciary Act

The removal power, and

by extension the forum defendant rule, is founded on the basic
premise behind diversity jurisdiction itself, the roots of which
were described in the Federalist Papers.
(Alexander Hamilton).

See THE FEDERALIST NO. 80

Diversity jurisdiction was designed to

protect non-forum litigants from possible state court bias in
favor of forum-state litigants.

See Guar. Trust Co. v. York, 326

U.S. 99, 111 (1945); see also Henry J. Friendly, The Historic
Basis of Diversity Jurisdiction, 41 HARV. L. REV. 483 n.4 (1928)
(“It is true, of course, that [Hamilton’s] explanation of

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diversity jurisdiction on the basis of local prejudice has been
written into the Constitution by judicial decision.”).
The removal power serves this purpose by giving a non-forum
defendant the ability to seek the protection of the federal court
against any perceived local bias in the state court chosen by the
plaintiff.

But the protection-from-bias rationale behind the

removal power evaporates when the defendant seeking removal is a
citizen of the forum state.

Thus, the forum defendant rule

provides some measure of protection for a plaintiff’s choice of
forum, when the overarching concerns about local bias against the
defendant underlying the removal power are not present, by
allowing a plaintiff to move for a remand of the case to the
state court if he chooses.5

Lively, 456 F.3d at 940.

The “properly joined and served” limitation in § 1441(b) is
a more recent development, added to the removal statute by
Congress in 1948.

28 U.S.C. § 1441(b) (1948).

Courts have

generally recognized that the legislative history of the 1948
revision provides no explanation for the inclusion of the
“properly joined and served” language.
F. Supp. 2d at 644.6

See, e.g., Sullivan, 575

A review of the Supreme Court jurisprudence

5

Because the forum defendant rule is procedural, it may be
waived by the plaintiff. See 28 U.S.C. § 1447(c) (providing that
a motion to remand based on the forum defendant rule “must be
made within 30 days after the filing of the notice of removal”).
6

Judge Debevoise was unable to find any explanation in three
Circuit libraries after an exhaustive search:
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at the time of the 1948 revision, however, suggests the purpose
of the “properly joined and served” language was to prevent
plaintiffs from defeating removal through improper joinder of a
forum defendant; incomplete service appears to have been included
as a means of identifying and policing such abuse by proxy.
In Pullman Co. v. Jenkins, 305 U.S. 534 (1939), the Supreme
Court affirmed the then-established rule that in a multidefendant case, a non-forum defendant could not remove the action
to federal court if one of the other defendants was a citizen of
the forum.

Id. at 540-41.

The Court noted in dicta that “the

fact that the resident defendant has not been served with process
does not justify removal by the non-resident defendant,” but

The court has conducted a thorough examination of the
published legislative history regarding the 1948
changes to Title 28, including review of all
legislative materials available in the Third Circuit
libraries in Newark and Philadelphia and the DC Circuit
library in Washington. The court has been able to
locate neither a specific statement from Congress nor
from the advisory Committee on Revision of the Judicial
Code (the “Committee”), regarding the addition of the
“properly joined and served” language. See 28 U.S.C.
§ 1441 (1948) reviser’s notes; H.R. Rep. No. 80-308
(1947), as reprinted in 1948 U.S.C.C.S., Special
Pamphlet: Title 28 at 1692; S. Rep. No. 80-1559 (1948),
as reprinted in 1948 U.S.C.C.S. Special Pamphlet: Title
28, 1675; Letter from Hon. Albert B. Maris, Circuit
Judge, United States Court of Appeals for the Third
Circuit, and Chair of the Committee, to Mildrim
Thompson, Jr., Esq. (May 10, 1946).
Sullivan v. Novartis Pharms. Corp., 575 F. Supp. 2d 640, 644
(D.N.J. 2008).
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recognized that this created an incentive for gamesmanship by
plaintiffs.

Id. at 541 (“It may be said that the non-resident

defendant may be prejudiced because his co-defendant may not be
served.”).

To solve that problem, the Supreme Court noted, “[i]t

is always open to the non-resident defendant to show that the
resident defendant has not been joined in good faith and for that
reason should not be considered in determining the right to
remove.”

Id.

Pullman suggests that a problem courts had identified with
the removal power was gamesmanship by plaintiffs in the joinder
of forum defendants whom plaintiffs ultimately did not intend to
pursue.

That the Supreme Court was discussing the problem of

improper or fraudulent joinder before the 1948 legislation
further suggests that improper joinder was the focus of Congress
when it added the “properly joined and served” language to the
removal statute.

See Sullivan, 575 F. Supp. 2d at 645 (“Congress

appears to have added the language only to prevent the thenconcrete and pervasive problem of improper joinder.”); see also
Stan Winston Creatures, Inc. v. Toys “‘R” Us, Inc., 314 F. Supp.
2d 177, 181 (S.D.N.Y. 2003) (“The purpose of the ‘joined and
served’ requirement is to prevent a plaintiff from blocking
removal by joining as a defendant a resident party against whom
it does not intend to proceed, and whom it does not even
serve.”).

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The relevant text of § 1441 has remained largely consistent
since 1948.

As noted above, see note 2, supra, Congress recently

amended section 1441 in the Federal Courts Jurisdiction and Venue
Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758
(2011).

However, no mention of the “properly joined and served”

language was made in the available legislative history of the
2011 Act, nor was the substantial disarray among the district
courts discussed.

See H.R. Rep. No. 112-10, at 11-16 (2011),

reprinted in 2011 U.S.C.C.A.N. 576, 580.7

7

The American Law Institute’s FEDERAL JUDICIAL CODE REVISION
PROJECT (“ALI PROJECT”) (2004), from which the 2011 Act was
derived, recognizes that the difference in approach, “whereby
unserved defendants are disregarded for purposes of the bar on
removal by a forum-state citizen, but not for purposes of the
rule of complete diversity, has been criticized as unfortunate.”
Id. at 366 (citing 14B WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE
§ 3723, at 563-68 (1984) and MOORE’S FEDERAL PRACTICE
§ 107.14[2][c][ii], at 107-53 (3d ed. 1998) (“The better view is
that an unserved defendant’s citizenship be considered when the
defendant’s citizenship is clear.”)).
Despite that criticism, the ALI endorsed disregarding
unserved forum-state defendants for purposes of the bar on
removal. The ALI viewed this practice as consistent with the
“rule of unanimity,” whereby “all the defendants must join in the
application” for removal. Chicago, Rock Island & Pacific Railway
Co. v. Martin, 178 U.S. 245, 248 (1900). Unserved defendants are
excluded from the rule of unanimity because “[i]t would be
impractical, if not impossible, to require unserved defendants to
join in the notice of removal.” ALI PROJECT at 366 n.28.
That said, the ALI proposed “broader language” than was
eventually adopted in the 2011 Act, preventing removal “if any
party properly joined or aligned as a defendant, who has been
served with process or otherwise brought within the personal
jurisdiction of the State court,” is a citizen of the forum. ALI
PROJECT at 333 (emphasis added). The additional language was
designed “make[] it clear that the bar of removal is applicable”
not just when a forum defendant is served, but also “when the
relevant defending party is a defendant that has voluntarily
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Congress’ further silence when amending the statute in 2011,
despite its presumed knowledge of the disparate interpretations
of the district courts, also indicates that it intended no
substantive change.

Even courts reading section 1441(b)

differently than I have agree on this point.

See, e.g., Munchel

v. Wyeth LLC, No. 12-906-LPS, 2012 WL 4050072, at *4 (D. Del.
Sept. 11, 2012).
The reading of the plain language of section 1441(b) I have
come to embrace is far more consistent with congressional purpose
in 1948 and 2011, than the reading proposed by Elan.

Elan’s

reading of the “properly joined and served” language rewards a

appeared without being served with process . . . .” Id. at 367.
Even if that language had been adopted, it would not be relevant
here because it was the non-forum defendant, Elan, that appeared
to remove the case without first being served.
Although the ALI did not explicitly take a position on
whether removal could be effected before service on any
defendant, the proposed text might be read to allow such a
practice. Limiting removal based on “any [defendant] properly
joined . . . who has been served,” where “any” functions as an
adjective, lends itself to the definition of “any” as “one, some,
or all indiscriminately of whatever quantity.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 97(3d ed. 1986) (emphasis added); accord
WEBSTER’S SECOND at 121; AMERICAN HERITAGE DICTIONARY at 81; OXFORD
AMERICAN DICTIONARY at 35. As discussed above, see note 4 supra and
accompanying text, the use of “none” and “any” as pronouns in
1441(b) and 1441(b)(2), respectively, assumes some number of
served defendants among which may or may not be a forum
defendant. The adjectival use of “any” in the ALI’s proposed
language, by contrast, does not build in the same assumption of
drawing from some existing pool of served defendants, but rather
makes an exception to removal based on forum defendants who have
been served, among served defendants of whatever quantity-including none. Thus the conditional “if any [defendant] . . .
has been served” leaves open the possibility that there is no
defendant that has been served at the time of removal.
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variation on the kind of gamesmanship the Supreme Court suggested
in Pullman should be discouraged.

305 U.S. at 541.

After all,

the game at issue--the determination of forum--is ordinarily
decided by a sole entity “race” to the courthouse by plaintiffs.
But here, the non-forum defendant has contrived and engaged in a
different race--that of removing the case from the state court
before service is effected.
That the legislative history of the statute is silent about
the meaning of the “properly joined and served” language suggests
Congress did not put it into the statute in order to incentivize
defendants to race to a federal forum.

Of course, under modern

procedural regimes and with modern technology, defendants-particularly repeat defendants with the resources to monitor
dockets throughout the country--now can win such a race because
they can obtain notice of litigation before service is executed.
See Ethington, 575 F. Supp. 2d at 857 (defendant corporation
filed notice of removal one business day after suit had been
filed, before it was possible for the plaintiffs to perfect
service under New Jersey state court rules).
happened here:

That is what

Gentile filed his suit on a Friday; by Tuesday,

Elan had filed a notice of removal, beating Gentile’s service
processor by one day.
It is, as a practical matter, essentially impossible for the
filing of a case and service of process to occur simultaneously

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because of the realities of case management and service in the
state courts.

In order to perfect service in Massachusetts, a

plaintiff must deliver a copy of the complaint and a summons to
one of a select number of people who are authorized under
Massachusetts rules to serve defendants.

Mass. R. Civ. P. 4(a).

The summons must be signed by the clerk, and then delivered
alongside a copy of the complaint to the defendant “by a sheriff,
by his deputy, or by a special sheriff; by any other person duly
authorized by law; [or] by some person specially appointed by the
court for that purpose.”

Id. 4(c).

The rules necessarily assume

that the filing of the suit will occur before service; it is also
inevitable that there is will be some delay between the filing
and service.
In some states, the state procedural rules themselves make
it impossible for simultaneous filing and service to occur.

New

Jersey Rule of Civil Procedure 4:5A-2, for example, requires that
a plaintiff obtain a “Track Assignment Notice” number from the
clerk’s office before serving process on a defendant.
Civ. P. 4:5A-2.

N.J. R.

The rule contemplates that the number will be

mailed to the plaintiff within ten days after the filing of the
complaint, id., thus mandating a delay between filing and
service.

See Ethington, 575 F. Supp. 2d at 857 (“Critically, it

would have been virtually impossible for the Ethingtons to
perfect service of process in less than one business day, due to

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the unique way New Jersey state courts process newly-filed
complaints.”).
Two other features of removal are worth noting briefly.
When interpreting the time limit for removal under 28 U.S.C.
§ 1446(b) in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344 (1999), the Supreme Court reaffirmed the “historic
function of service of process as the official trigger for
responsive action by an individual or entity named defendant.”
Id. at 353.

Similarly, unserved defendants are excepted from the

"rule of unanimity," as discussed in note 7, supra.

Although

neither feature dictates my reading, both reflect the
assumption--perhaps outdated--that notice and service of process
are co-extensive, and more importantly are consistent with my
reading of the plain language of section 1441(b), under which
removal is improper until some defendant is “brought under [the]
court’s authority, by formal process.”

Murphy Bros., 526 U.S. at

347.
4.

Summary

Precluding removal until at least one defendant has been
served protects against docket trolls with a quick finger on the
trigger of removal.

Under the reading I have given to section

1441(b) here, plaintiffs legitimately seeking to join a forum
defendant face the modest burden of serving that defendant before
any others.

If a plaintiff serves a non-forum defendant before

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serving a forum defendant, he has effectively chosen to waive an
objection to the removal by a nimble non-forum defendant who
thereafter removes the case before service upon a forum defendant
named in the complaint.8

And, even when a forum defendant is

served first, my reading anticipates a situation in which an
unserved non-forum defendant may remove following service on a
forum defendant, in hopes of arguing that joinder of the forum
defendant was fraudulent.

This reading of the statute thus

accommodates the clear congressional purpose animating
section 1441(b)--preventing abuse by plaintiffs in forum
selection--while also closing an unintended loophole
incentivizing parallel abuse by defendants seeking to escape a
state forum in which a co-defendant is a citizen, all without
doing violence to the plain language of the statute.
IV.

CONCLUSION

For the reasons set forth more fully above, Gentile’s motion
(Dkt. No. 10) and supplemental motion (Dkt. No. 26) to remand are
on reconsideration GRANTED.

This case shall be REMANDED to

Middlesex Superior Court, where it was originally filed.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

8

I note Gentile followed the order I have concluded would be
sufficient to prevent removal in this case, by first serving
forum defendant Biogen and then serving non-forum defendant Elan
the next day.
21