Wednesday, May 2, 2012

Another Win For Removal Before Service

We’ve learned of another win for removal before service in our local federal court, the Eastern District of Pennsylvania. In Boyer v. Wyeth Pharmaceuticals, Inc., C.A. No. 12-739, slip op. (E.D. Pa. April 25, 2011), the case was removed “before any defendant had been served.”  Id. at 1. The plaintiff sued Pfizer, a non-Pennsylvania defendant, and Wyeth, a Pennsylvania “forum defendant.”  The non-forum defendant (Pfizer) was the removing party.  Id.

As usual, the argument in Boyer came down to a choice between the “plain meaning” of the removal statute (21 U.S.C. §1441(b)), and the plaintiff’s claim that removal before service was some sort of gimmick that courts simply should not allow, no matter what Congress provided.  The court (Judge Ludwig) came down on the side of plain meaning.  Slip op. at 2-6 (collecting cases – including some we haven’t cited before in the blog).

A couple of notes about Boyer:

First, the court drew a distinction between removal before service by the forum as opposed to the non-forum defendant, and suggested that remand is more appropriate “where the unserved removing party was the forum defendant.”  Boyer, slip op. at 4 n.2.  We don’t think that should matter, but to the extent that it does – a word to the wise is sufficient.  If the defendant has a choice (and in Boyer we think there was), then always have the non-forum defendant do the removing.  No use handing the other side an issue that can be avoided.

Second, the plaintiff in Boyer did something a little unusual – serving the forum defendant anyway after the case was removed, and claiming that made a difference.  One reason that argument’s unusual is probably that it’s quite meritless.  As the court observed, “[t]he propriety of removal is determined as of the date of removal.”  Slip op. at 4 (citing Wright & Miller).

So if you’re keeping track, Boyer is one more win for the good guys.  We’ll close the way the court did:

[T]he propriety of pre-service removal has been recognized. . . .  [T]he removal statutes expressly permit defendants to remove state court actions to federal court prior to service.  The pre-service removal of this action by a non-forum defendant where the forum defendant had not been served prior to removal was proper under the unambiguous language of §1441(b).

Boyer, slip op. at 4-5 (citations omitted).