We really shouldn't complain about the burden after we voluntarily assume a duty.
After all, we created the Drug Preemption Scorecard, the Device Preemption Scorecard, the No Injury Scorecard, and the Cross-Jurisdictional Class Action Tolling Scorecard, and we know that, having created those resources, we're duty-bound to keep 'em current. (But we're not your lawyers! We're not giving legal advice here! And if we inadvertently overlook a case that belongs in one of those scorecards, you can't sue us for negligence!)
We wonder, however, why we feel duty-bound to alert you to the new "pre-service removal" cases as they come down.
Probably because no one else is paying attention to those cases, but they make an awful lot of difference to folks who toil in our field.
Anyway, add Sullivan v. Novartis Pharmaceuticals Corp., __ F. Supp. 2d __, 2008 WL 4148730 (D.N.J. Sept. 10, 2008), to the list of cases wrestling with the "pre-service removal" issue. (We're not going to repeat the entire list of those cases here. Instead, we'll link back to this one earlier post that, in turn, links back to our many other posts collecting cases on this topic.)
By now, you know the drill: 28 U.S.C. Sec. 1441 permits removal of diversity cases only if no defendant "properly joined and served" is a resident of the state in which the case was filed. In Sullivan, as in the earlier cases presenting this issue, defendants removed the action before plaintiff served the resident defendant. Plaintiff then moved to remand.
Judge Debevoise framed the issue squarely: Courts that allow removal in this situation rely on the plain statutory language -- "the principle of statutory construction which holds that courts should apply the plain meaning of a statute when the statutory language is clear and unambiguous." Id. at *2.
Judge Debevoise then noted "a less often cited, but equally important, principle of statutory construction which 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." Id.
Judge Debevoise "conducted a thorough examination of the published legislative history regarding the 1948 changes to Title 28" and found nothing explaining why Congress added the "properly joined and served" language to the statute. Id. at *3.
The judge could not "imagine what Congressional policy goal -- and Novartis, here, has offered no example -- which would be furthered by rewarding defendants for" the "gamemanship" of removing an action before the resident defendant was served. Id. at *5.
The court thus rejected removal based on diversity jurisdiction. It also rejected Novartis' arguments in favor of finding federal question jurisdiction, and the court remanded the case. Id. at *13.
We see the competing arguments in this situation, and we understand why courts are wrestling with them. But we (and others like us, and the courts) surely deserve a clear answer to the question whether pre-service removal is a permissible way to obtain federal jurisdiction in a case in which diversity would otherwise be lacking.
Orders remanding cases to state court are not appealable, which is a procedural obstacle to obtaining appellate guidance on this issue.
And orders denying motions to remand are interlocutory, so they typically cannot be reviewed until a final judgment is entered in the case, often years after the jurisdictional question is first raised.
We urge some court to deny a motion to remand and then certify the jurisdictional question for interlocutory appeal, which would let an appellate court weigh in on the question and give trial judges (and litigants) some much-needed guidance. How many hundreds of thousands of dollars of legal fees, and how much court time, must society spend before it learns the answer to what should be a simple threshold jurisdictional question that decides only the court in which a case will be heard?