The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HEATHER BROWN : CIVIL ACTION
:
v. :
:
TEVA PHARMACEUTICALS, INC., :
et al. : NO. 19-3700
MEMORANDUM
Bartle, J. October 23, 2019
The plaintiff has before this court a motion to remand
this action to the Court of Common Pleas of Philadelphia County
under 28 U.S.C. § 1447(c).
Plaintiff has sued the defendants under state law for
injuries suffered from the insertion and removal of a Paraguard
Intrauterine Device. The plaintiff is a citizen of Florida
while several of the defendants are citizens of Pennsylvania.
The events relevant to the pending motion all took
place on the same day. The complaint was filed in the state
court on August 16, 2019 at 10:06 a.m. The defendants, before
they were served, filed a notice of removal in this court at
1:55 p.m. on the basis of diversity of citizenship. All
defendants were served with a copy of the complaint at 2:15 p.m.
At 4:11 p.m., the defendants filed their notice of removal on
the docket of the state court.
Under 28 U.S.C. § 1441(a), a defendant may remove an
action to the federal court where the court has original
jurisdiction under 28 U.S.C. § 1332(a), that is where all
plaintiffs have diverse citizenship from all defendants and the
amount in controversy is in excess of $75,000, exclusive of
interest and costs. See Exxon Mobil Corp. v. Allapattah
Services, Inc., 545 U.S. 546, 553 (2005). The defendant must
file its notice of removal within thirty days after receipt,
through service or otherwise, of the complaint or summons.
See § 1446(b). However, an exception precluding removal of a
diversity case exists under the forum defendant rule in
§ 1441(b)(2) which provides:
a civil action otherwise removable solely on
the basis of [diversity jurisdiction] 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.
28 U.S.C. § 1441(b)(2). Plaintiff argues that removal was
improper because several defendants are citizens of
Pennsylvania, the forum state.
The Court of Appeals in Encompass Ins. Co. v. Stone
Mansion Restaurant, Inc., 902 F.3d 147 (3d Cir. 2018) has held
that removal by a forum defendant is allowed under § 1441(b)(2)
if removal to the federal court occurs before the defendant has
been served with the complaint. The Court concluded that “[i]ts
plain meaning precludes removal on the basis of in-state
citizenships only when the defendant has been properly joined
and served.” Id. at 152. Defendants maintain that they removed
the action before they were served as permitted in Encompass.1
Defendant must also meet several other requirements
for removal under § 1446(d) including the filing of a copy of
the notice of removal with the state court. It provides:
Promptly after the filing of such notice of
removal of a civil action the defendant or
defendants shall give written notice thereof
to all adverse parties and shall file a copy
of the notice with the clerk of such State
court, which shall effect the removal and
the State court shall proceed no further
unless and until the case is remanded.
28 U.S.C. § 1446(d).
Plaintiff counters that Encompass does not apply and
that remand to the state court is required because the
defendants were served with the complaint before a copy of the
notice of removal was filed in the state court. According to
plaintiff, the removal by a defendant is not effective under
§ 1446(d) until the state court has a copy of the removal notice
on its docket. It is undisputed that the defendants were served
before this event occurred.
1. The removal bar under § 1446(d) is procedural, not
jurisdictional under the circumstances presented here.
Encompass, 902 F.3d at 152.
Under Encompass, as noted, an in-state defendant may
remove a diversity action to the federal court if it does so
prior to the time it is served with the complaint. While the
Court of Appeals in passing referenced the notice of removal, it
discussed removal generally without considering all of its
requirements. It did not have before it any issue about the
filing of a copy of the removal notice in the state court and
did not mention § 1446(d).
Under § 1446(d), the defendant must notify all adverse
parties in writing, must file a copy of the removal notice in
the state court, and must do so promptly after the filing of the
notice in the federal court. It is only after the filing of the
removal notice in the state court that “the State Court shall
proceed no further unless and until the case is remanded.”
28 U.S.C. § 1446(d).
Significantly, § 1446(d) further provides that the
written notification of all adverse parties and the filing of a
copy of the removal notice with the state court clerk “shall
effect the removal.” Id. Plaintiff argues that until that
notice is filed removal is not complete. As noted above, she
contends that since the defendants were served before the
removal was complete, the holding in Encompass allowing removal
by an in-state defendant does not apply.
In Resolution Trust Corp. v. Nernberg, 3 F.3d 62 (3d
Cir. 1993), our Court of Appeals had before it an action which
was removed to the federal court by the substituted plaintiff, a
federal agency, under a removal statute not relevant here. It
did not file its notice of removal with the state court for
thirty-four days. Resolution Trust, 3 F.3d at 69. In
chastising the plaintiff for its dilatoriness but not deciding
the case on this issue, the Court stated that state court
jurisdiction continues until the notice of removal is filed with
that court under § 1446(d). It explained, “[t]he requirement of
notice to the state court is an important part of the removal
process and has been held necessary to terminate the state
court’s jurisdiction.” Id. The Court was silent on the issue
of federal jurisdiction during the thirty-four day period.
Our Court of Appeals in In Re Diet Drugs, 282 F.3d
220, 231 n.6 (3d Cir. 2002), citing § 1446(a) and (d), has now
determined that no federal jurisdiction vests during this
interim timeframe. It has instructed that “[r]emoval is
effective upon filing a notice of removal in both the relevant
federal and state courts.”
The conclusion of our Court of Appeals in Diet Drugs
fits with the unambiguous text of § 1446(d) which provides that
defendant give written notice to all adverse parties and file a
copy of the removal notice with the state court “which shall
effect removal.” These words “which shall effect removal” can
only mean that removal has not been accomplished and the federal
court is not vested with jurisdiction until these requirements
of § 1446(d) have been met. Otherwise the court would be
reading out of the statute a key provision that Congress has
included. See 14C Charles A. Wright and Arthur R. Miller, et
al. Federal Practice and Procedure § 3736 (4th ed. 2018).
While defendants filed the notice of removal in the
federal court before being served with the complaint, they filed
a copy of the notice of removal in the state court after they
were served. Removal was not completed when defendants were
served. Diet Drugs, 282 F.3d at 231 n. 6. Consequently,
defendants’ reliance on Encompass is unavailing. Timing was
everything, and plaintiff has won the race. The forum defendant
rule under § 1446(d) bars the defendants here, which had been
“properly joined and served,” from effecting removal. My
colleague Judge Michael M. Baylson has reached the same result
under similar facts in another case, Doe v. Valley Forge
Military Acad., 2019 WL 3208178 (E.D. Pa. July 15, 2019).
Accordingly, the motion of plaintiff to remand this
action to the Court of Common Pleas of Philadelphia County will
be granted.