THOMAS v. WYETH PHARMACEUTICALS, INC. et al

Filing 11

MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO. 8948 RE: PLAINTIFF'S MOTION TO REMAND IN C.A. 12-20006. SIGNED BY HONORABLE HARVEY BARTLE, III ON 10/5/2012; 10/5/2012 ENTERED AND COPIES MAILED AND E-MAILED TO LIAISON COUNSEL. (SEE PAPER # 109783 IN 11-MD-1203). (tjd)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: DIET DRUGS (PHENTERMINE/
FENFLURAMINE/DEXFENFLURAMINE) .
PRODUCTS LIABILITY LITIGATION

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MDL NO. 1203

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THIS DOCUMENT RELATES TO:

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JUANITA FAYE THOMAS

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v.
WYETH PHARMACEUTICALS, INC.,
et al.

CIVIL ACTION NO. 12-20006

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MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO.

October

Bartle, J.

S,

2012

Before the court is the motion of plaintiff Juanita
Faye Thomas ("Ms. Thomas") to remand this action to the Court of
Common Pleas of Philadelphia County.

According to the complaint,

plaintiff suffers from primary pulmonary hypertension as a result
of ingesting Wyeth's diet drugs known as Phen-fen.
Plaintiff initiated this action in the state court by
filing a praecipe for a writ of summons on June 18, 2012.

The

writ, which was issued by the Prothonotary the same day, simply
contained the names and addresses of the plaintiff and the nine
defendants and stated in bold letters "PPH Phen-Fen Mass Tort
Case" and "Jury Trial Demand."

Defendants filed a notice of

removal to this court three days later on June 21, 2012.
pending motion to remand followed.

The

Under the pennsylvania Rules of Civil Procedure, a
civil action may be commenced either by the filing of a complaint
or a praecipe for a writ of summons.
pennsylvania Rules of Civil Procedure.

See Rule 1007 of the
Under Rule 1351, the form

of the writ of summons must simply identify the name of the
parties and notify the defendants that the plaintiff(s)
(have) commenced an action against ll them.
by the prothonotary or a deputy.

IIhas

It is dated and signed

It is not required to contain

any information about the allegations or claims against the
defendants or the nature or amount of the relief sought.
On July 17, 1999, Judge Joseph O'Keefe in the Court of
Common Pleas had entered Case Management Order No. 1 ("CMO
No. I") which governs "all individual personal injury 'Phen-fen'
cases which are presently pending or hereafter filed in the
Philadelphia Court of Common Pleas.

II

The order recited that at

the court's direction a Master Long Form Complaint (IIMaster
Complaint") was filed on May 17, 1999.
afforded 45 days to file a response.

The defendants were
All Phen-fen cases

instituted in that court after July 17, 1999 must be initiated by
the filing of a writ of summons or a Short Form Complaint.

If a

case is instituted by a writ of summons, a Short Form Complaint
is to be filed within 30 days.

It must state the counts of the

Master Complaint which it is incorporating and any new counts not
pleaded in the Master Complaint.

In this case, defendant filed

its notice of removal before the Short Form Complaint had been
filed.
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In support of her motion to remand, plaintiff cites 28
U.S.C. § 1446{b} which provides:
Requirements; generally.--{l}
The notice of
removal of a civil action or proceeding shall
be filed within 30 days after the receipt by
the defendant, through service or otherwise,
of a copy of the initial pleading setting
forth the claim for relief upon which such
action or proceeding is based, or within 30
days after the service of summons upon the
defendant, if such initial pleading has been
filed in court and is not required to be
served on the defendant, whichever period is
shorter.

Plaintiff maintains that the writ of summons is not an
"initial pleading" and therefore removal fails as premature
because it occurred before and not after defendants' receipt of
the initial pleading.

Defendants counter that under the specific

circumstances of this case, the writ of summons is the initial
pleading and thus removal was within the time period allowed by
§

1446 {b} .
In Murphy Brothers, Inc. v. Michetti Pipe Stringing,

Inc., 526 U.S. 344, 352 (1990), the Supreme Court held that
informal receipt of a complaint does not start the running of the
30-day removal period under 28 U.S.C. § 1446(b}.

There, counsel

for the plaintiff had faxed a copy of the filed complaint to
defendant before the complaint had been served.

Defendant filed

a notice of removal more than 30 days after receiving the
courtesy copy of the complaint but less than 30 days after formal
service of the complaint.
timely.

The Supreme Court found removal to be

The Court explained that a defendant "must be officially

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summoned to appear in an action before the time to remove begins
to run."

Id. at 347.

In its opinion, the Court stated:

First, if the summons and complaint are
served together, the 30-day period for
removal runs at once. Second, if the
defendant is served with the summons but the
complaint is furnished to the defendant
sometime after, the period for removal runs
from the defendant's receipt of the
complaint. Third, if the defendant is served
with the summons and the complaint is filed
in court, but under local rules, service of
the complaint is not required, the removal
period runs from the date the complaint is
made available through filing.
Finally, if
the complaint is filed in court prior to any
service, the removal period runs from the
service of the summons.
Id. at 354.
After Murphy Brothers, our Court of Appeals in Sikirica
v. Nationwide Ins. Co., 416 F.3d 214 (3d Cir. 2005), had occasion
to decide a case involving the 30-day removal period.

The

plaintiff had served a writ of summons pursuant to the
Pennsylvania Rules of Civil Procedure.

The defendant filed a

notice of removal more than 30 days after service of the writ of
summons but within 30 days after the filing and service of the
complaint.

The court upheld the removal.
In doing so, it discussed but rejected the reasoning of

the Second Circuit in Whitaker v. American Telecasting, Inc., 261
F.3d 196, 200-05 (2d Cir. 2001).

Whitaker held that the time for

removal began to run from the service of the summons because the
summons, under New York law, must identify not only the name of
the parties but also the nature of the action and the relief

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sought.

The Sikirica court noted that the Supreme Court in

Murphy Brothers had emphasized that § 1446{a) was designed to
have uniform application throughout the nation and equated the
term "complaint" with the "initial pleading."

Since in

pennsylvania less information is required in the writ of summons
than in New York, and in any event the writ of summons was not a
complaint, the 30-day clock was not triggered in Sikirica until
the complaint was served.
Here, the plaintiff is not required to file its Phen­
fen Short Form Complaint until 30 days after the filing of the
writ of summons.

It is not until the Short Form Complaint is

filed that the defendant can know exactly what allegations are
being made by the plaintiff in a court of law.

We acknowledge,

as defendants point out, that they surely had a good idea about
the nature of the action at the outset from the writ of summons
because it contains the words "PPH Phen-Fen Mass Tort Case."
There is also the preexisting Master Complaint with which the
defendants are familiar and which sets forth the allegations
against the defendants concerning their liability for primary
pulmonary hypertension (IIPPH"), a fatal disease, caused by Phen­
fen.

However, neither the writ of summons nor the Master

Complaint is the plaintiff's pleading, initial or otherwise.
Only upon plaintiff's filing of her own Short Form Complaint
under CMO No. 1 is there an initial pleading in the case at hand.
Any rule starting the clock with the filing or service
of the writ of summons before the filing of the complaint, a rule
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espoused by defendants here, not only would be contrary to Murphy
Brothers but would cause significant mischief.

It would force a

defendant to make a decision about removal based on assumptions
rather than knowledge of exactly what was contained in the filed
complaint.

The defendant would have to determine whether the

writ of summons, generally a bare-bones document, provided it
with enough information about the action so as to make it
removable.

According to the defendants' argument, the court

would also need to evaluate defendant's knowledge beyond the four
corners of the writ of summons. We would be back in the preMurphy Brothers era.
Our Court of Appeals in Sikirica has rejected the
Whitaker approach and has adopted a bright line rule consistent
with its reading of the Supreme Court's opinion in Murphy
Brothers.

In sum, it is necessary that before removal takes

place the complaint at the very least must have been filed.
Valido-Shade v. Wyeth,

See

F. Supp. 2d ---, 2012 WL 2861113 (E.D.

Pa. July 11, 2012 1 ) .
Section 1446(b), as noted above, requires that "the
notice of removal ... 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
such action ... is based

"

(emphasis added).

First, the writ

of summons here, although more detailed than the ordinary writ of

1. While the order was signed on July 10, 2012, it was filed on
July 11, 2012.
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summons in Pennsylvania, is not the "initial pleading" because
"it does not set forth the claim for relief upon which such
action is based."

Moreover, the removal statute must be strictly

construed, with all doubts resolved in favor of remand.

See,

~I

Contrary

Brown v. Jevic, 575 F.3d 322, 326 (3d Cir. 2009).

to what

§

1446(b) provides, the notice of removal was filed

before rather than after receipt of the initial pleading, that
is, plaintiff's Short Form Complaint.
AccordinglYI we conclude that the notice of removal was
premature and thus improper under § 1446(b).

The action will be

remanded to the Court of Common Pleas of Philadelphia County.

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