Plaintiff’s Motion to Remand

Morris v. Alza Corporation

Description: In this case, the plaintiff, represented by Heygood, Orr & Pearson, sued several drug companies that manufacture and distribute a fentanyl patch. One of the defendants, Alza Corporation, is located in California and manufactures the patch there. So, the plaintiff brought his lawsuit in the Superior Court of California. Shortly after the lawsuit was filed and before the plaintiff had time to serve Alza with the complaint, the defendants removed the case to federal court. Ordinarily, the presence of an in-state or forum defendant like Alza precludes such a removal. But the defendants argued that their removal was proper because Alza had not yet been served with the complaint and the statute refers to defendants that are “joined and served.” In the plaintiff’s brief, we argued that the case should be remanded to state court because defendants’ interpretation of the “joined and served” language was at odds with the intent of Congress in passing the removal statute. The court agreed and remanded the case to the California state court. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

No. 2:09-cv-03450
JACOB MORRIS,Plaintiffv.





Plaintiff’s Motion to Remand 

Plaintiff Jacob Morris respectfully asks this Court to remand this cause to the Superior Court of the State of California, County of Solano pursuant to 28 U.S.C. § 1447(c).  Because defendant ALZA Corporation has its principal place of business in California, removal is improper under 28 U.S.C. § 1441(b).

Preliminary Statement

This is an action for the wrongful death of Michael Morris.  Michael died on January 13, 2004 as a result of using a prescribed, defective 50 mcg/hr Duragesic fentanyl patch.  Although the patch is not intended to deliver a fatal dose of fentanyl, toxicological testing of Michael’s blood revealed that he had a lethal blood concentration of fentanyl at the time of his death.  The autopsy report noted that Michael was wearing a single Duragesic 50 mcg/hr patch.

Jacob filed suit on December 9, 2009 against Defendants ALZA Corporation, Janssen Pharmaceutica Products, L.P., Janssen L.P., Jansen Pharmaceutica, Inc., and Ortho-McNeil-Janssen Pharmaceuticals, Inc., (collectively, the “Drug Companies”), the companies that designed, manufactured, marketed, and distributed the patch.  Jacob alleges strict products liability, negligence, and breach of warranty.  All of the Drug Companies are wholly-owned subsidiaries of Johnson & Johnson Corporation.  Pertinent to this motion, ALZA is a Delaware corporation with its principal place of business in California, and Ortho-McNeil is a Pennsylvania Corporation with its principal place of business in New Jersey.  Two days after Jacob filed his complaint, Ortho-McNeil removed this case to federal court based on diversity jurisdiction.  (Dkt. 2.)  Ortho-McNeil alleges that the removal was proper despite the fact that ALZA’s principal place of business is in California.

Under the “forum-defendant rule” in 28 U.S.C. § 1441(b), a case cannot be removed if an in-state defendant has been “joined and served” even if complete diversity otherwise exists.  Ortho-McNeil removed this case before Jacob had time to serve his complaint, and presumably Ortho-McNeil will argue that it is entitled to remove any time before ALZA—the forum defendant—has been served.  But, as numerous courts have made clear, the purpose of the “and served” language is to prevent a plaintiff from defeating diversity jurisdiction by suing—but not serving—an in-state defendant that the plaintiff does not intend to pursue.  Here, it is undisputed that Jacob served Ortho-McNeil on December 31 and ALZA on January 4 and intends to pursue his claims against all defendants.  Accordingly, Ortho-McNeil’s swift removal was an unmistakable act of forum manipulation that contravenes the logic and policy underlying the federal removal statutes and the forum-defendant rule.  Jacob’s case should be remanded to state court.


Michael was a patient of Sharon Weinstein, M.D. and Olivia Walton, PA.  Michael was prescribed a 50 mcg/hr Duragesic fentanyl patch for his pain.  (Compl. ¶¶ 9, 11 (Attachment 1 to Decl. of R. Biernat, Dkt. 1).)  The patch delivers the drug fentanyl through the patient’s skin.  Fentanyl is an extremely dangerous drug that is at least 80 times stronger than morphine.  (Compl. ¶¶ 11-12.)  If a patch functions as intended and is properly used by the patient, the patient should not receive a harmful dose of fentanyl.  (Compl. ¶ 12.)  Michael filled his prescription in December 2003.  He died on January 13, 2004.  Toxicological testing on his blood found that he had a lethal blood concentration of fentanyl when he died.  (Compl. ¶ 19.)  The autopsy report notes that a single “Duragesic” 50 mcg/hour fentanyl patch was found on Decedent’s body and that Decedent’s fentanyl blood concentration was three times higher than expected from a 50 mcg patch.  (Compl. ¶ 19.)  Michael did not abuse the patch or otherwise use it inappropriately.  (Compl. ¶ 12.)            The patch that Michael used was designed, manufactured, and marketed by the Drug Companies.  (Compl. ¶ 9.)  ALZA, a Delaware corporation, has its principal place of business in California.  (Compl. ¶ 2.)  Although Ortho-McNeil is a Pennsylvania corporation with its principal place of business in New Jersey, it does business in California.  (Compl. ¶ 6.)  The Drug Companies have long known of the defects in their patches.  In 2004, for instance, ALZA recalled numerous lots of patches because of leaking defects, and the FDA found that ALZA’s manufacturing and quality-control/assurance policies were deficient.  (Compl. ¶ 17.)  ALZA again recalled patches in 2008.  (Compl. ¶ 17.)

On December 9, 2009, Jacob filed suit against the Drug Companies.  Two days later, before Jacob had served the defendants, Ortho-McNeil—who was apparently monitoring the state-court docket—filed a notice of removal.  (Dkt. 1.)  Both parties have since been served.  Jacob now files this motion to remand under 28 U.S.C. § 1447(c).

Argument and Authorities

  1. A.                Because removal is disfavored, any ambiguities are resolved against removal.

            A defendant may remove an action from state to federal court under 28 U.S.C. § 1441(a) only when the federal court has original jurisdiction.  Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).  Under 28 U.S.C. § 1332, federal district courts have original jurisdiction over all civil actions in which the amount in controversy exceeds $75,000 and the action is between citizens of different states.  Congress permitted diversity jurisdiction to prevent local prejudice against out-of-state defendants.  McSparran v. Weist, 402 F.2d 867, 876 (3d Cir. 1968); S. Rep. No. 1830, 85th Cong., 2d Sess., reprinted in 1958 U.S. Code Cong. & Admin. News 3099, 3102 (explaining the “purpose of diversity of citizenship legislation . . . is to provide a separate forum for out-of-state citizens against the prejudices of local courts and local juries by making available to them the benefits and safeguards of the federal courts”).

But because in-state defendants need no protection from local bias, Congress prohibited removal—even when diversity jurisdiction otherwise exists—when a defendant is a citizen of the forum state.  See, e.g., Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 939-40 (9th Cir. 2006); Dresser Indus., Inc. v. Underwriters at Lloyd’s of London, 106 F.3d 494, 499 (3d Cir. 1997).    Specifically, 28 U.S.C. § 1441(b) provides that removal is improper “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.”

The forum-defendant rule in § 1441(b) is merely one example indicating that Congress disfavors removal.  Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 10, (1951) (noting that an “important [Congressional] purpose [of the 1948 revision of the United State Court concerning removal] was to limit removal from state courts”).  Given removal’s disfavor, federal removal statutes are strictly construed against the exercise of removal jurisdiction.  Abrego v. Dow Chem. Co., 443 F.3d 676, 685 (9th Cir. 2006) (citing Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002)); California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004); Golden 1 Credit Union v. H & B Group, Inc., No. 1:06-cv-1717, 2007 U.S. Dist. LEXIS 31142, at *7 (E.D. Cal. Apr. 27, 2007) (“The removal statute must be strictly construed, with all doubts and ambiguities resolved against removal and in favor of remand.”) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)).  “The ‘strong presumption’ against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.”  Gasu v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-90 (1938)).  These principles favor remanding this case to state court.

  1. B.                 Remand is required because ALZA is a “forum defendant.”

As discussed below, the “joined and served” language was included in § 1441(b) to prevent plaintiffs from suing, but not serving or pursuing, an in-state defendant solely to prevent removal.  The Drug Companies seek to turn the purpose of § 1441(b) on its head by presumably arguing that they are entitled to the gamesmanship that plaintiffs are not:  they can monitor state-court dockets and remove an action as long as they do so before the forum defendant is served.  Yet, there is no sound justification for permitting the Drug Companies to do what Congress in 1948 (when it amended § 1441(b) to add the “joined and served” language”) could not have envisioned—the ability of sophisticated forum defendants to monitor computerized dockets.  This justification is especially absent when the nonforum defendant—such as Ortho-McNeil—removes before any party has been served because there can be no inference that plaintiff has attempted to engage in gamesmanship by not serving the forum defendant.  Accordingly, the court should remand this case to the state court.

  1. 1.                  The purpose of the “joined and served” language of § 1441(b) is to prevent gamesmanship.

“The purpose of the ‘joined and served’ requirement is to prevent a plaintiff from blocking removal by joining as a defendant a resident party against whom it does not intend to proceed, and whom 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); accord Mohammed v. Watson Pharms., Inc., No. SA CV09-79, 2009 U.S. Dist. LEXIS 31094, at *10-11 (C.D. Cal. Mar. 26, 2009); Sullivan v. Novartis Pharms. Corp., 575 F. Supp. 2d 640, 644-45 (D.N.J. 2008); Ethington v. Gen. Elec. Co., 575 F. Supp. 2d 855, 861-62 (N.D. Ohio 2008); Holmstrom v. Harad, No. 05 C 2714, 2005 U.S. Dist. LEXIS 16694, at *6 (N.D. Ill. Aug. 11, 2005).  In this case, the Drug Companies are attempting to capitalize on the plain language of the “and served” requirement by employing their own form of gamesmanship—monitoring the state-court docket and then removing cases before plaintiffs can serve them.  Some cases have held that the plain language allows sophisticated defendants to attempt to remove a case before they can be served.[1]  But the better reasoned line of authority prohibits such procedural gamesmanship because it flouts congressional intent and runs counter to the logic and policy underlying federal diversity jurisdiction and the forum-defendant rule. [2]

  1. 2.                  A literal reading of § 1441(b) to allow removal prior to service on the forum defendants—contrary to congressional intent—permits gamesmanship.

The goal of judicial statutory interpretation is to actualize legislative intent.  U.S. v. Am. Trucking Ass’ns, 310 U.S. 534, 542 (1940) (the “function of the courts” in interpreting statutes “is to construe the language so as to give effect to the intent of Congress”).  Usually, the best indication of the drafters’ intent is the statute’s plain language.  But, at times, the plain-language approach should be jettisoned because it leads to a result that is plainly contrary to the intent of the drafters.  Id.  In such instances, it becomes the duty of the court to interpret the statute in a manner congruent with the legislative intent:

There is . . . no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.  Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning.  When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act.  Frequently, even when the plain meaning did not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the legislation as a whole” this Court has followed that purpose, rather than the literal words.

Id. (footnotes omitted); see also Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982) (where “literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters . . . those intentions must be controlling.”); Sullivan, 575 F. Supp. 2d at 643 (“[An] equally important principle of statutory construction . . . holds that when the literal application of statutory language would either produce an outcome demonstrably at odds with the statute’s purpose or would result in an absurd outcome, a court must look beyond the plain meaning of the statutory language.”).

Numerous courts have refused to apply the plain-language interpretation of the “joined and served” provision because it leads to “untenable,” “absurd,” and “unreasonable” results.  See, e.g., DeAngelo-Shuayto, 2007 U.S. Dist. LEXIS 92557, at *12; Brown, 2008 U.S. Dist. LEXIS 55490, at *14-15 (consolidated cases for purposes of motions to remand); Fields v. Organon USA Inc., No. 07-2922, 2007 U.S. Dist. LEXIS 92555, at *10-11 (D.N.J. Dec. 12, 2007).  Specifically, blind application of the literal “properly joined and served” language of § 1441(b) creates a procedural anomaly whereby defendants can always avoid the imposition of the forum-defendant rule if they monitor the state docket, avoid service, and remove the action to federal court before the plaintiff serves the forum defendant (no matter how diligently the plaintiff attempts to effectuate service).  DeAngelo-Shuayto, 2007 U.S. Dist. LEXIS 92557, at *12.  In addition to eviscerating the forum-defendant rule, such interpretation likewise eliminates a plaintiff’s well-established right to choice of forum, by essentially precluding a plaintiff from being able to litigate in the defendant’s own home state courts if the defendant is a sophisticated litigant.  Ethington, 575 F. Supp. 2d at 862; Mohammed, 2009 U.S. Dist. LEXIS 31094, at *11-12.  Given that Congress intended the “properly joined and served” language to prevent litigant gamesmanship, “it would be especially absurd to interpret the same ‘joined and served’ requirement to actually condone a similar kind of gamesmanship from defendants” as in this case.  Allen v. GlaxoSmithKline PLC, No. 07-5045, 2008 U.S. Dist. LEXIS 42491 at *12 (E.D. Pa. 2008); Mohammed, 2009 U.S. Dist. LEXIS 31094, at *14 (noting that Congress in the 1940s could not have had electronic monitoring of dockets in mind when adding the “joined and served” language).[3]

This rationale is true even when the nonforum defendant­­—such as Ortho-McNeil—removes the case before any defendants have been served.  See, e.g., Holmstrom, 2005 U.S. Dist. LEXIS 16694, at *6 (“The ‘joined and served’ requirement makes sense . . . when one defendant has been served but the named forum defendant has not. . . . When no defendant has been served, however, the non-forum defendant stands on equal footing as the forum defendant.  Neither defendant in that scenario is obligated to appear in court. [Therefore], the protection afforded by the “joined and served” requirement is wholly unnecessary for an un-served non-forum defendant.”); accord Mohammed, 2009 U.S. Dist. LEXIS 31094, at *15 (“[T]he court finds that removal under Section 1441(b) by a nonforum defendant where no defendants have yet been served is improper because it promotes gamesmanship by defendants and likely deprives plaintiffs of a meaningful opportunity to effectuate serve.”).  After all, the 30-day period for either defendant has not even begun to run for either defendant.  See Holmstrom, 2005 U.S. Dist. LEXIS 16694, at *6.

When ruling on a motion to remand, a district court must resolve all contested issues of substantive fact and any uncertainties as to the current state of controlling law in favor of the plaintiff.  See Brown v. Francis, 75 F.3d 860, 865 (9th Cir. 1995) (“If there is any doubt as to the propriety of removal, that case should not be removed to federal court.”); see also Mohammed, 2009 U.S. Dist. LEXIS 31094, at *15.  In the instant case, the Drug Companies monitored the California state-court docket, and Ortho-McNeil removed the case before either of the Drug Companies could be served.  Jacob served both defendants after the complaint was filed and intends to pursue all defendants—including forum defendant ALZA—in this case.  Therefore, the policies underlying § 1441(b)’s “joined and served” provision are inapplicable, and the removal was simply forum manipulation by sophisticated litigants.  Allowing removal under such circumstances would reward the Drug Companies for using the very kind of litigation gamesmanship that the forum-defendant rule was crafted to avoid.

Conclusion and Prayer

            For these reasons, Jacob respectfully requests that the Court grant his motion to remand, remand the case to the Superior Court of the State of California for the County of Solano, and grant him such other relief to which he is justly entitled.


DATED:  January 8, 2009

Respectfully submitted,


By:      _________________________________


Attorneys for Plaintiff



[1] See, e.g., Waldon v. Novartis Pharms., Corp., No. C07-1988, 2007 U.S. Dist. LEXIS 45809 (N.D. Cal. June 18, 2007); City of Ann Arbor Employees’ Ret. Sys. v. Gecht, No. C-06-7453, 2007 U.S. Dist. LEXIS 21928 (N.D. Cal. Mar. 9, 2007); Massey v. Cassens & Sons, Inc., No. 05-CV-598-DRH, 2006 U.S. Dist. LEXIS 9675, at *10 (S.D. Ill. Feb. 16, 2006) (“While an argument can be made that the likely policy underlying the ‘joined-and-served’ requirement is not implicated by the current facts, the Court is constrained by the language of 28 U.S.C. § 1441.”).


[2]See, e.g., NFC Acquisition, LLC v. Comerica Bank, 640 F. Supp. 2d 964 (N.D. Ohio 2009); Mohammed, 2009 U.S. Dist. LEXIS 31094; Standing v. Watson Pharms, Inc., No. 30829 (C.D. Cal. Mar. 26, 2009); Brown v. Organon Int’l, Inc., Nos. 07-3092, 07-3456, 08-2021, 2008 U.S. Dist. LEXIS 55490 (D.N.J. July 21, 2008); Allen v. GlaxoSmithKline PLC, No. 07-5045, 2008 U.S. Dist. LEXIS 42491 (E.D. Pa. May 30, 2008); Sullivan, 575 F. Supp. 2d at 647; Ethington, 575 F. Supp. 2d at 864; Grizzly Mt. Aviation, Inc. v. McTurbine, Inc., No. C-08-87, 2008 U.S. Dist. LEXIS 27814, at *10 n.5 at (S.D. Tex. Apr. 4, 2008); DeAngelo-Shuayto v. Organon USA Inc., No. 07-2923, 2007 U.S. Dist. LEXIS 92557 (D.N.J. Dec. 12, 2007); Fields v. Organon USA Inc., No. 07-2922, 2007 U.S. Dist. LEXIS 92555 (D.N.J. Dec. 12, 2007).

[3]Accord Brown, 2008 U.S. Dist. LEXIS 55490, at *14 (“To apply the ‘properly joined and served’ language literally where an in-state defendant removes, would promote the same type of litigant gamesmanship that the rule seeks to limit, and thus violate the clear purpose of the legislative provision.”); Sullivan, 575 F. Supp. 2d at 645-46 (“Congress could not possibly have anticipated the tremendous loophole that would one day manifest from technology enabling forum defendants to circumvent the forum-defendant rule by, inter alia, electronically monitoring state court dockets. . . . [A]s a matter of common sense . . . the ‘properly joined and served’ language [was not added] to reward defendants for conducting and winning a race, which serves no conceivable public policy goal, to file a notice of removal before the plaintiffs can serve process.”).