Cheung v. Bristol-Myers Squibb Company et al

Filing 15

MEMORANDUM OPINION AND ORDER....This Opinion is issued in connection with products liability MDL litigation concerning the brand name pharmaceutical Eliquis, a blood thinner used to treat nonvalvular atrial fibrillation and to reduce the risk of stro ke and systemic embolism. At issue here are four related Eliquis lawsuits filed by the law firm Salim-Beasley in Delaware state court, which were removed by the defendants to federal court and recently transferred to this district pursuant to the MD L process. The plaintiffs have moved to remand their lawsuits to Delaware state court....The plaintiffs August 3 and 9, 2017 motions for remand are denied. The plaintiffs complaints are dismissed with prejudice. (Signed by Judge Denise L. Cote on 10/12/2017) Filed In Associated Cases: 1:17-md-02754-DLC, 1:17-cv-06223-DLC, 1:17-cv-06239-DLC, 1:17-cv-06243-DLC, 1:17-cv-06245-DLC(gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ELISA CHEUNG,
:
Plaintiff,
:
:
-v:
:
BRISTOL-MYERS SQUIBB COMPANY and PFIZER :
INC.,
:
Defendants.
:
:
--------------------------------------- :
:
LILLIS WAYLETT,
:
Plaintiff,
:
:
-v:
:
BRISTOL-MYERS SQUIBB COMPANY and PFIZER :
INC.,
:
Defendants.
:
:
--------------------------------------- :
:
RALPH FARINELLA,
:
Plaintiff,
:
:
-v:
:
BRISTOL-MYERS SQUIBB COMPANY and PFIZER :
INC.,
:
Defendants.
:
:
--------------------------------------- :
:
RUTH MINGLE,
:
Plaintiff,
:
:
-v:
:
BRISTOL-MYERS SQUIBB COMPANY and PFIZER :
INC.,
:
Defendants.
:
:
--------------------------------------- X

MEMORANDUM OPINION
AND ORDER

17cv6223(DLC)

17cv6239(DLC)

17cv6243(DLC)

17cv6245(DLC)

APPEARANCES
For the Plaintiffs:
Lisa Causey-Streete
Robert L. Salim
Salim-Beasley, LLC
1901 Texas Street
Natchitoches, LA 71457
For the Defendants:
Loren H. Brown
Cara D. Edwards
Lucas P. Przymusinski
DLA PIPER LLP
1251 Avenue of the Americas
New York, New York 10020
DENISE COTE, District Judge:
This Opinion is issued in connection with products
liability MDL litigation concerning the brand name
pharmaceutical Eliquis, a blood thinner used to treat
nonvalvular atrial fibrillation and to reduce the risk of stroke
and systemic embolism.

At issue here are four related Eliquis

lawsuits filed by the law firm Salim-Beasley in Delaware state
court, which were removed by the defendants to federal court and
recently transferred to this district pursuant to the MDL
process.

The plaintiffs have moved to remand their lawsuits to

Delaware state court.

Before addressing the motion for remand,

some procedural history is in order.

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BACKGROUND
The first decision in the Eliquis MDL on a motion to
dismiss was issued in Utts v. Bristol-Myers Squibb Co. et al.,
16cv5668 (DLC) (“Utts”).

On March 21, 2017, as that motion to

dismiss was being addressed, a scheduling Order provided that
“any action presently assigned to this Court . . . may file an
amended complaint fourteen (14) days after the Court decides the
motion to dismiss” in Utts.

The March 21 Order further provided

that “any action transferred or reassigned to this Court after
the Utts motion to dismiss has been decided shall have fourteen
(14) days following arrival on this Court’s docket to file an
amended complaint.”
On May 8, this Court issued its opinion in Utts.

See Utts

v. Bristol-Myers Squibb Co. et al., 16cv5668 (DLC), 2017 WL
1906875 (S.D.N.Y. May 8, 2017).

The decision dismissed the

action, primarily on the ground of preemption.

In accordance

with the March 21 Order, a scheduling Order on May 9 (“May 9
Order”) provided that “any future action transferred or
reassigned to this Court shall have fourteen days following
arrival on this Court’s docket to file an amended complaint and
show cause in a memorandum no longer than 20 pages why the
amended complaint should not be dismissed based on the analysis
in the May 8 Utts Opinion.”

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In response to the decision dismissing the Utts action,
Salim-Beasley voluntarily dismissed thirty-three product
liability actions concerning Eliquis brought on behalf of
various plaintiffs that were pending in federal court and
refiled them in Delaware state court.1

The defendants removed

them to Delaware federal court, and on June 27, the Honorable
Leonard P. Stark of the United States District Court for the
District of Delaware denied motions to remand the thirty-three
cases.

Young v. Bristol-Myers Squibb Co., 2017 WL 2774735 (D.

Del. June 27, 2017).

Judge Stark held that the removal to

federal court was properly based on diversity jurisdiction
despite the defendants’ citizenship in Delaware.

Id. at *3.

Salim-Beasley has filed additional actions concerning
Eliquis for other plaintiffs in Delaware state court, including
the four at issue here.

One of the four actions was filed in

Delaware state court on July 5, 2017; the other three were filed
on July 7, 2017.

They were removed by the defendants to federal

court no later than four days after they were filed and before

Salim-Beasley had originally filed the thirty-three cases in
California state court. The cases had been removed to federal
court and stayed pending a decision by the Judicial Panel on
Multidistrict Litigation on whether to transfer them to the MDL
pending before this Court. The plaintiffs in the thirty-three
actions voluntarily dismissed the stayed cases on May 23, 2017,
and promptly refiled them in Delaware state court.
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the plaintiffs could serve the defendants.2

As Judge Stark

noted, under the Rules of Civil Procedure for the Superior Court
of the State of Delaware, a plaintiff cannot immediately serve a
defendant after commencing an action.

See Young, 2017 WL

2774735, at *1; Del. Sup. Ct. R. Civ. P. 4 (requiring plaintiffs
to coordinate with the sheriff of the county for service).
After the four actions were removed, they were “tagged” for
transfer to the MDL on or before July 13.3

The Judicial Panel on

Multidistrict Litigation (“JPML”) transferred the four actions
to this Court on July 31, in the case of the first-filed action,
and on August 7, in the case of the remaining three actions.
Understanding that a motion for remand may expire within 30 days
of removal, see 28 U.S.C. § 1447(c), Salim-Beasley filed motions
for remand in each of the four actions after the actions were
transferred to the MDL.4

The motions were filed on August 3 and

9.5

One was removed the day after filing; three were removed four
days after filing.
2

One was tagged for transfer on July 6; three were tagged for
transfer on July 13.
3

Although Salim-Beasley had filed a notice of opposition to the
proposed transfer, it did not file the required motion and brief
to vacate the conditional transfer order. As a result, the
final transfer of the actions was not further delayed.
4

The remand motion for the first-filed action was filed on
August 3; the remaining remand motions were filed on August 9.
5

5

On August 11, Salim-Beasley notified this Court that it had
filed the remand motions before the actions had officially
arrived on this Court’s docket because of the deadline that
governs a remand motion.

It asked for an extension of the

deadlines set forth in the Court’s May 9 Order, as well as a
conference for scheduling purposes.

An August 17 Order

acknowledged Judge Stark’s June 27 decision denying the remand
motions in the thirty-three related cases, denied the request
for an extension of the deadlines set forth in the May 9 Order,
and required any plaintiff seeking remand to “also address in
its show cause memorandum why the motion for remand should not
be denied for reasons given in Judge Stark’s June 27 Opinion.”
Although permitted to file amended complaints in response
to the guidance given in Utts, none of the plaintiffs in these
four actions opted to do so.

In its August 30 omnibus response

to the order to show cause, Salim-Beasley addressed Judge
Stark’s June 27 Opinion and argued for remand.

The defendants

filed a response on September 13.

DISCUSSION
Federal law permits defendants to remove to federal court
an action originally filed in state court if it could have been
brought in federal court:
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Except as otherwise expressly provided by Act of Congress,
any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
28 U.S.C. § 1441(a).

When the sole basis for removal is §

1441(a), “all defendants who have been properly joined and
served must join in or consent to the removal of the action.”
28 U.S.C. § 1446(b)(2)(A).
statute narrowly.
213 (2d Cir. 2013).
promptly.

Federal courts construe the removal

Purdue Pharma L.P. v. Kentucky, 704 F.3d 208,
To effect removal, a defendant must act

“The notice of removal of a civil action or

proceeding shall be filed within 30 days after receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which
the action or proceeding is based.”

28 U.S.C. § 1446(b)(1).

Moreover, when diversity jurisdiction is the sole ground
for federal court jurisdiction, the action is 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)(emphasis supplied).

This

restriction on removal when there are in-state defendants is
known as the forum defendant rule.

But, as highlighted, the

statute prohibits removal when there are in-state defendants
only when those defendants have been “properly joined and
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served.”

Id.

The specific purpose of the “joined and served”

requirement has been read to “prevent a plaintiff from blocking
removal by joining as a defendant a resident party against whom
it does not intend to proceed, and who it does not even serve.”
Stan Winston Creatures, Inc. v. Toys “R” Us, Inc., 314 F. Supp.
2d 177, 181 (S.D.N.Y. 2003).

“Defendants are entitled to act to

remove a case based on the circumstances at the time they are
sued, and are not required to guess whether a named resident
defendant will ever be served.”

Id.

Finally, on a “motion to

remand, the removing defendant bears the burden of demonstrating
the propriety of removal.”

Yakin v. Tyler Hill Corp., 566 F.3d

72, 75 (2d Cir. 2009).
Here, it is undisputed that the defendants removed the
cases before they were properly served.

A plain reading of the

forum defendant rule, then, permitted that removal.
The plaintiffs make principally two arguments in support of
their motion for remand.

First, they argue that this Court

should ignore Judge Stark’s decision and take its guidance from
decisions by district judges in the Second Circuit.

In

construing a federal statute, however, the “[f]ederal courts
comprise a single system applying a single body of law, and no
litigant has a right to have the interpretation of one federal
court rather than that of another determine his case.”

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Menowitz

v. Brown, 991 F.2d 36, 40 (2d Cir. 1993)(citation omitted).
Neither the Supreme Court nor the Courts of Appeals have
directly addressed the forum defendant question at issue here,
although the Courts of Appeals have acknowledged that the issue
is unsettled among the District Courts, see, e.g., Novak v. Bank
of New York Mellon Trust Co., 783 F.3d 910, 911 n.1 (1st Cir.
2015); Goodwin v. Reynolds, 757 F.3d 1216, 1221, 1221 n.13 (11th
Cir. 2014).
divided.

The district court decisions in this Circuit are

Compare, e.g., Deveer v. Gov't Emp. Ins. Co., 2008 WL

4443260, at *5 (E.D.N.Y. Sept. 26, 2008) (denying motion to
remand because plain language of § 1441(b) was satisfied by
removal); Stan Winston Creatures, Inc. v. Toys “R” Us, Inc., 314
F. Supp. 2d 177, 180 (S.D.N.Y. 2003) (same), with, e.g., In re:
Propecia (Finasteride) Products Liability Litigation, 2016 WL
5921070, at *2 (E.D.N.Y Oct. 11, 2016)

(remanding case even

though defendants removed before being served); Torchlight Loan
Servs., LLC v. Column Fin., Inc., 2013 WL 3863887, at *3
(S.D.N.Y. July 24, 2013) (same).

There is, therefore, no

controlling authority that restricts this Court’s authority to
follow the statute’s terms as written by Congress.
The plaintiffs next urge the Court to ignore the plain
reading of the statute to discourage what they term as
“gamesmanship” by the defendants.

They urge that the statute

should only be enforced when a removal occurs after a plaintiff
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has had “a meaningful chance” to serve the defendant.

The

plaintiffs argue that to uphold removal here, which they contend
was strategically done in order to evade the forum defendant
rule, would be to frustrate the purpose of both diversity
jurisdiction and the forum defendant rule.
As an initial matter, the plain meaning of the statute is
controlling absent ambiguity.

A court should look to the

legislative history of a statute only if the statute is
ambiguous or if a literal application would “lead to an absurd
result.”

Louis Vuitton v. Malletier S.A. v. Ly USA, Inc., 676,

F.3d. 83, 108 (2d Cir. 2012) (citation omitted).

The plaintiffs

do not suggest that there is any ambiguity in the statute.
is the result here absurd.

Nor

Nor have the plaintiffs pointed to

any legislative history to support their position.

Whatever the

merit to the argument that it runs counter to the policies
undergirding diversity jurisdiction to allow a defendant to
petition for removal immediately after a case opening and before
it is possible to serve the defendant, that argument is
insufficient to overcome the abundantly clear language of the
statute.

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The plaintiffs would have the Court ignore statutory
language -- which was revisited by Congress as recently as 20116
-- in order to advance its policy arguments.

This approach

belies standard and accepted tools of statutory construction.
It is well and long established that courts apply the plain
meaning of unambiguous statutory language.

See United States v.

Am. Trucking Ass’ns, 310 U.S. 534, 542–43 (1940).

In

determining the proper interpretation of a statute, a court will
“look first to the plain language of a statute and interpret it
by its ordinary, common meaning.”

Tyler v. Douglas, 280 F.3d

116, 122 (2d Cir. 2001) (citation omitted).

“If the statutory

terms are unambiguous, our review generally ends and the statute
is construed according to the plain meaning of its words.”
(citation omitted).

Id.

The merits of following plain statutory

language are many, including predictability, fairness, and
efficiency.

The plain language of Section 1441(b) makes clear

that “its prohibition on removal applies only where a defendant
who has been ‘properly joined and served’ is a resident of the
forum state.”

Stan Winston Creatures, 314 F. Supp. 2d at 180.

Ignoring the plain terms of the statute to determine in an
individual case when a plaintiff had a meaningful opportunity to
Section 1441(b) was revised in 2011 by the Federal Courts
Jurisdiction and Venue Clarification Act of 2011 (“FCJVCA”).
While much of the section was rearranged or otherwise edited,
the “joined and served” language was untouched.
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serve each defendant and to investigate the parties’ motives,
such as the plaintiff’s motives in filing in a particular venue
and the defendant’s reasons for removing the action to federal
court, would add expense, delay, and uncertainty to the
litigation.

In cases like the ones at issue here, the

investigation is complicated and points in several directions.
While the defendants no doubt removed the actions swiftly to
combine the four cases with the Eliquis MDL litigation and sweep
them under the Utts umbrella, a ruling in favor of the
plaintiffs on the issue of removal would reward a different kind
of gamesmanship altogether.

After this Court issued Utts,

Salim-Beasley voluntarily dismissed without prejudice the
thirty-three “tagged” cases before the MDL and refiled those
cases in Delaware state court.

The defendants removed those

cases to federal court in Delaware.

After Judge Stark denied

the plaintiffs’ remand motion in the thirty-three cases then
removed, Young, 2017 WL 2774735 (D. Del. June 27, 2017), SalimBeasley changed strategy a second time.

Instead of promptly

moving before Judge Stark for remand of the four cases at issue
here, as had previously been its practice, or perfecting its
opposition to the transfer of the four cases to the MDL, it
waited until the JPML had ordered the transfer to move for their
remand.

It would appear that, although the issue to be decided

is the same decided by Judge Stark -- whether the forum
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defendant rule applies -- the plaintiffs represented by SalimBeasley hope for a different result.

If the plaintiffs, then,

urge an interpretation of the removal statute that takes the
litigants’ strategies into account, theirs may not be ignored.
Because removal to federal court is proper, the only
remaining issue is whether to dismiss the complaints.

Salim-

Beasley does not present any developed argument against
dismissal.

For the reasons stated in Utts and in Fortner v.

Bristol-Meyers Squibb Co., 17cv1562(DLC), 2017 WL 3193928
(S.D.N.Y. July 26, 2017), the complaints must be dismissed.

CONCLUSION
The plaintiffs’ August 3 and 9, 2017 motions for remand are
denied.

The plaintiffs’ complaints are dismissed with

prejudice.
Dated:

New York, New York
October 12, 2017
_________________________________
DENISE COTE
United States District Judge

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