Spillman

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MASSACHUSETTS

)

IN RE: PHILIPS RECALLED CPAP, )

BI-LEVEL PAP, AND MECHANICAL )

VENTILATOR PRODUCTS ) Master Docket: Misc. No. 21-1230

LITIGATION )

)

) MDL No. 3014

This Document Relates to: )

)

Spillman v. Philips, et al., #22-1803 )

)

MEMORANDUM OPINION

I. Introduction

This case implicates the procedures governing “snap removals” and the “forum defendant

rule.” Pending before the court is a motion to remand this case to the Superior Court of

Middlesex County, Massachusetts (the “state court”) (Civ. No. 22-1803, ECF No. 4), with

numerous attached exhibits, filed on behalf of plaintiff Gary Spillman (“Spillman”). Philips RS

North America LLC, Philips North America LLC, Philips Holding USA, Inc. and Philips RS

North America Holding Corporation (collectively, “Philips”), filed a brief in opposition to the

motion (ECF No. 15). Spillman filed a reply brief (ECF No. 19). The motion is ripe for

disposition.

II. Procedural History

Spillman is a citizen of Alabama. Complaint ¶ 15. Spillman alleges that each of the

Philips defendants is a citizen of Massachusetts (i.e., each of the Philips entities is a “forum

defendant”). Complaint ¶¶ 17-21. The parties agree there is complete diversity of citizenship

and the amount in controversy exceeds $75,000.

Spillman provided a detailed timeline of events (ECF No. 4 at 3-10). Philips does not

dispute the facts of what occurred, but does contest when service was properly completed on two

of the Philips entities.1 The court concludes it need not resolve that issue.

To summarize the pertinent chronology:

1. Spillman filed his complaint in the state court on August 4, 2022;

2. Philips filed a notice of removal in the United States District Court for the District of

Massachusetts at 12:27 a.m. on August 5, 2022;

3. At 8:40 a.m. on August 5, 2022, Spillman effectuated service of the complaint (by

way of the Sheriff’s Department, see ECF Nos. 4 at 5-6 and 4-2), on Philips North

America LLC and Philips RS North America LLC;2

4. At 10:55 a.m. on August 5, 2022, plaintiff’s counsel received notice of the removal;

5. At 12:29 p.m. on August 5, 2022, Philips filed its notice of removal in the state court.

The Judicial Panel on Multidistrict Litigation transferred the case to this court for pretrial

proceedings as part of the Philips MDL. The case was assigned Civil Action No. 22-1803 in this

court.

1 Philips contends that the attempted service on Philips Holding USA, Inc. and Philips RS North America

Holding Corporation on August 4, 2022, was not valid because Spillman used a private process server

(ECF No. 4-1), which did not comply with Mass. R. Civ. P. 4(c) (requiring service by the sheriff, other

person duly authorized by law, or person specially appointed by the court) (ECF No. 15 at 3-4).

2 Philips appears to concede that this service by the sheriff complied with Mass. R. Civ. P. 4(c). In

contrast to its challenge that the service on August 4, 2022 was invalid (see Note 1), Philips raised no

challenge to the service on August 5, 2022, and argues only that it filed its notice of removal before this

service was effectuated.

III. Discussion

Spillman argues the federal courts lack removal jurisdiction over this case because

Philips did not “effect the removal” by completing all the requirements under 28 U.S.C. §

1446(d) until after an in-state defendant was served. Philips argues that it timely performed a

snap removal of this case because its midnight notice of removal in the federal district court

occurred prior to proper service on any forum defendant.3

A. Legal standard

1. General

This court will apply Third Circuit law with respect to the issues involving remand. As

explained in In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability

Litigation, 294 F. Supp.2d 667 (E.D. Pa. 2003):

As an MDL court sitting within the Third Circuit, defendant Wyeth is correct that

we must apply the fraudulent joinder standard of our Court of Appeals, not that of

the Eleventh Circuit. See In re Korean Air Lines Disaster, 829 F.2d 1171, 1174

(D.C.Cir.1987); In re Ikon Office Solutions, Inc. Secs. Litig., 86 F.Supp.2d 481, 485

(E.D.Pa.2000).

Id. at 672; accord Nelson v. A.W. Chesterton Co., No. 10-00065, 2012 WL 7761243, at *1 (E.D.

Pa. Oct. 19, 2012) (“the MDL transferee court applies the federal law of the circuit where it sits”).

This court will apply Third Circuit law with respect to snap removals and when removal is

effectuated.

3 Unlike many of the remand motions in this MDL, the issues of fraudulent joinder, fraudulent misjoinder

and severance under Rule 21 are not implicated in this case. The parties recognize that there is complete

diversity of citizenship and the dispute involves the mechanics and timing of the removal.

2. Removal

The court in Doe v. Valley Forge Military Academy & College, No. CV 19-1693, 2019

WL 3208178 (E.D. Pa. July 15, 2019), discussed the difficult burden for Philips to demonstrate

that removal is proper:

The Third Circuit has held that “the party asserting federal jurisdiction in a removal

case bears the burden of showing, at all stages of litigation, that the case is properly

before the federal court.” Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir.

2007); see also Corbitt v. City of Phila. Police Officer Thomas Horner, No. 16-

5450, 2016 WL 6825917, at *1 (E.D. Pa. Nov. 16, 2016) (Baylson, J.) (“The

removing defendant bears the heavy burden of persuading the [c]ourt to which the

state action was removed that it has jurisdiction under the removal statutes.”). “The

removal statutes ‘are to be strictly construed against removal and all doubts should

be resolved in favor of remand.’” Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111

(3d Cir. 1990) (quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d

1006, 1010 (3d Cir. 1987)); see also Johnson v. SmithKline Beecham Corp., 724

F.3d 337, 346 (3d Cir. 2013).

Id. at *4.

3. Snap Removals

The statute that governs removal on the basis of diversity of citizenship contains a “forum

defendant rule” which provides:

(2) 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.

28 U.S.C. § 1441(b)(2) (emphasis added).

Snap removals are entirely permissible. In Encompass Insurance Co. v. Stone Mansion

Restaurant, Inc., 902 F.3d 147 (3d Cir. 2018), the court held that the language of the “forum

defendant rule” was plain and unambiguous and precludes removal “only when the [in state]

defendant has been properly joined and served.” Id. at 152. The court commented that “this

result may be peculiar in that it allows [a defendant] to use pre-service machinations to remove a

case that it otherwise could not; however, the outcome is not so outlandish as to constitute an

absurd or bizarre result.” Id. at 153–54; accord Huskic v. AD Express Trucking LLC, No. CV

25-2343, 2025 WL 1933714, at *4 (E.D. Pa. July 14, 2025) (recognizing the Third Circuit Court

of Apppeals’ conclusion that the forum defendant rule gives defendants an advantage in a race-

to-the-courthouse removal scenario, but observing that a plaintiff’s unilateral right to voluntarily

dismiss a case under Federal Rule of Civil Procedure 41 “provides plaintiffs with a procedural

counterpunch in response to a snap removal”).4

The mere fact that Philips executed a midnight snap removal, therefore, does not justify

remand. To the contrary, a snap removal is a recognized tactic under the removal statute. The

dispositive question is whether any of the Philips entities was “properly joined and served”

before Philips’ removal in this case was completed.

4. Whether the requirements in § 1446(d) were met

A plaintiff may move to remand the case back to state court due to either: (1) lack of

subject matter jurisdiction or (2) “a defect in the removal procedure.” Doe, 2019 WL 3208178 at

*3 (quoting PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993)). In this case, Spillman

asserts a defect in the removal procedure. Spillman’s remand motion was made within 30 days

of the notice of removal. See 28 U.S.C. § 1447(c).

The procedures governing removal of a civil case are set forth in 28 U.S.C. § 1446, which

provides, in relevant part:

(a) Generally.--A defendant or defendants desiring to remove any civil action from

a State court shall file in the district court of the United States for the district

and division within which such action is pending a notice of removal signed

4 Spillman has not sought dismissal of this case under Rule 41.

pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a

short and plain statement of the grounds for removal, together with a copy of

all process, pleadings, and orders served upon such defendant or defendants in

such action.

(b) Requirements; generally.--(1) 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 then been filed

in court and is not required to be served on the defendant, whichever period is

shorter.

(2)(A) When a civil action is removed solely under section 1441(a), all

defendants who have been properly joined and served must join in or consent to

the removal of the action.

(B) Each defendant shall have 30 days after receipt by or service on that

defendant of the initial pleading or summons described in paragraph (1) to file

the notice of removal.

(C) If defendants are served at different times, and a later-served defendant files

a notice of removal, any earlier-served defendant may consent to the removal

even though that earlier-served defendant did not previously initiate or consent

to removal.

(3) Except as provided in subsection (c), if the case stated by the initial pleading

is not removable, a notice of removal may be filed within 30 days after receipt

by the defendant, through service or otherwise, of a copy of an amended

pleading, motion, order or other paper from which it may first be ascertained

that the case is one which is or has become removable.

(c) Requirements; removal based on diversity of citizenship.--(1) A case may not

be removed under subsection (b)(3) on the basis of jurisdiction conferred by section

1332 more than 1 year after commencement of the action, unless the district court

finds that the plaintiff has acted in bad faith in order to prevent a defendant from

removing the action.

(2) If removal of a civil action is sought on the basis of the jurisdiction conferred

by section 1332(a), the sum demanded in good faith in the initial pleading shall

be deemed to be the amount in controversy, except that--

(A) the notice of removal may assert the amount in controversy if the initial

pleading seeks--

(i) nonmonetary relief; or

(ii) a money judgment, but the State practice either does not permit demand

for a specific sum or permits recovery of damages in excess of the amount

demanded; and

(B) removal of the action is proper on the basis of an amount in controversy

asserted under subparagraph (A) if the district court finds, by the preponderance

of the evidence, that the amount in controversy exceeds the amount specified in

section 1332(a).

(3)(A) If the case stated by the initial pleading is not removable solely because

the amount in controversy does not exceed the amount specified in section

1332(a), information relating to the amount in controversy in the record of the

State proceeding, or in responses to discovery, shall be treated as an “other

paper” under subsection (b)(3).

(B) If the notice of removal is filed more than 1 year after commencement of the

action and the district court finds that the plaintiff deliberately failed to disclose

the actual amount in controversy to prevent removal, that finding shall be

deemed bad faith under paragraph (1).

(d) Notice to adverse parties and State court.--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 (emphasis added).

Spillman relies on § 1446(d) and contends that Philips did not “effect the removal” before

an in-state defendant was properly served, and therefore, the “forum defendant rule” bars

removal. It appears undisputed that two Philips entities were properly served on August 5, 2022

at 8:30 a.m.; notice to the adverse party (i.e., Spillman’s counsel) occurred at 10:55 a.m.; and the

notice to the state court occurred at 12:29 p.m.

Spillman cites Hardman v. Bristol-Myers Squibb Co., No. 18-CV-11223, 2019 WL

1714600 (S.D.N.Y. Apr. 17, 2019), which held that all three of the “distinct procedural

requirements” in § 1446(d)5 must be satisfied before the state court is divested of jurisdiction. Id.

at *3. The court explained:

More specifically “until all three steps are completed, the action is not removed and

the federal court does not have jurisdiction.” Id. These courts have suggested that

because all three requirements appear prior to the statement “shall effect the

removal,” removal is not effective until complete compliance with the statute. Id.

Further, while the “promptness” of notice and the filing of notice with the state

court may be a factor to be considered, “prompt” compliance is not sufficient to

override complete compliance with the three requirements outlined in 28 U.S.C. §

5 The plain language of the statute requires: “(1) the filing of a notice of removal with the federal court;

(2) notice to the adverse parties; and (3) the filing of a copy of the notice of removal with the appropriate

state court.” Id.

1446(d). Stern v. Mylan Bertek Pharms., Inc., No. 07-5677, 552 U.S. 956, 128 S.Ct.

383, 169 L.Ed.2d 273 [sic], 2008 U.S. Dist. LEXIS, *13-14 (D.N.J. July 29, 2008)

(“This Court also recognizes that Mylan's notification of the removal was indeed

“prompt” under any interpretation of § 1446. Yet the fact remains that during the

interim between when the petition was filed with this Court and when the Superior

Court was notified of the removal, the forum Defendant received service of

process).

Id.

Philips contends that its removal became effective on August 5, 2022 at 12:27 a.m., when

it filed its notice of removal in the federal court. Philips argues that Hardman is an “outlier”

under First and Second Circuit law, citing Almonte v. Target Corp., 462 F. Supp. 3d 360, 365 n.2

(S.D.N.Y. 2020) (ECF No. 15 at 7).

Philips did not cite any Third Circuit precedent in support of its position and the court did

not find any such decisions in its independent research. To the contrary, as Philips recognizes

and concedes (ECF No. 15 at 7), district courts within the Third Circuit have found Hardman

“particularly persuasive.” See Doe, 2019 WL 3208178 at *3; Brown v. Teva Pharms., Inc., 414

F. Supp. 3d 738 (E.D. Pa. 2019). Hardman cited additional decisions from within the Third

Circuit in reaching its decision. See Hardman, 2019 WL 1714600 at *3 (citing Westfield Ins. Co.

v. Interline Brands, Inc., 2013 WL 1288194, *2 (D.N.J. March 25, 2013) and Stern v. Mylan

Bertek Pharms., Inc., No. 107CV5677JHRJS, 2008 WL 11509865, at *4 (D.N.J. July 29, 2008)

(rejecting argument “that the state court's jurisdiction is divested immediately upon the

defendant's filing of the petition for removal with the district court.”).

Doe and Brown involved the precise procedural timeline at issue here – in each case, the

defendant filed a notice of removal in federal court before being served, but filed the notice in

the state court after being served. The courts held that the cases must be remanded.

In Doe, the court noted that “the question of when removal is completed in the context of

the forum defendant rule has not yet been settled by the Third Circuit.” Doe, 2019 WL 3208178

at *5. After analysis, including consideration of the Third Circuit Court of Appeals’ instruction

that the removal statutes be strictly construed against removal, the court expressly rejected the

argument that Philips makes here, i.e., that filing the notice of removal in federal court effected

removal. Doe 2019 WL 3208178, at * 5-6. The court quoted In re Diet Drugs, 282 F.3d 220,

231 n.6 (3d Cir. 2002) for the proposition that: “Removal is effective upon filing a notice of

removal in both the relevant federal and state courts, and providing notice to the other parties.”

Id. at *3. The court concluded: “Because [the forum defendant] was ‘properly joined and

served’ before [the forum defendant] completed all three steps necessary to effect removal under

§ 1446(d), the Court concludes that the forum defendant rule precludes removal on the basis of

diversity jurisdiction.” Id. at *6.

In Brown, the court explained:

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.

Brown, 414 F. Supp.3d at 741; accord Anthony v. Runyon, 76 F.3d 210, 213 (8th Cir. 1996)

(“The only rule that logically follows from 28 U.S.C. 1446(d) is that removal is effected when

the notice of removal is filed with the state court and at no other time.”); Dutton v. Ethicon, Inc.,

423 F. Supp. 3d 81, 88 (D.N.J. 2019) (quoting Resolution Tr. Corp. v. Nernberg, 3 F.3d 62, 69

(3d Cir. 1993) (“28 U.S.C. § 1446(d) requires that a notice of removal be filed promptly with the

state court. The 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.”).

The court agrees with the consistent position taken in each of these decisions. In the

Third Circuit, a defendant must complete all three steps set forth in § 1446(d) to effectuate

removal. If a forum defendant is “properly joined and served” before all three steps are

completed, the forum defendant rule in § 1441(b)(2) is triggered and precludes removal.

5. Application to this case

Here, two Philips entities who were citizens of Massachusetts were properly joined and

served at 8:40 a.m. on August 5, 2022. Philips did not complete all three steps needed to

effectuate removal under § 1446(d) until 12:29 p.m. on August 5, 2022. Plaintiff won the race

by about four hours. Therefore, the “forum defendant rule” was triggered and prevents removal

of this case. This action will be remanded forthwith to the state court.

B. Counsel fees

Spillman did not seek counsel fees associated with the response to Philips’ notice

of removal and preparation of the motion for remand. Pursuant to 28 U.S.C. § 1447(c),

the court “may” require Philips to pay just costs and any “actual expenses, including

counsel fees, incurred as a result of the [improper] removal.” Because Spillman did not

seek costs and fees, none will be awarded.

IV. Conclusion

For the reasons set forth above, the court concludes that the removal was barred by

the forum defendant rule. The motion to remand this case to the state court (ECF No. 4)

will be granted. Civil Action No. 22-1803 shall be remanded FORTHWITH to the

Superior Court of Middlesex County, Massachusetts.

An appropriate order will be entered.

Dated: November 12, 2025

BY THE COURT:

/s/ Joy Flowers Conti

Joy Flowers Conti

Senior United States District Court Judge