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Plaintiffs Motion to Remand

Morris v. Alza Corporation
Description: In this case, the plaintiff, represented by Hey good, Orr & Pearson, sued sev eral drug companies that manufacture and distribute a fentany l 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 serv e Alza with the complaint, the defendants remov ed the case to federal court. Ordinarily , the presence of an in-state or forum defendant like Alza precludes such a remov al. But the defendants argued that their remov al was proper because Alza had not y et been serv ed with the complaint and the statute refers to defendants that are joined and serv ed. In the plaintiffs brief, we argued that the case should be remanded to state court because defendants interpretation of the joined and serv ed language was at odds with the intent of Congress in passing the remov al statute. The court agreed and remanded the case to the California state court. This brief was filed by Hey good, Orr & Pearson on behalf of their client. No. 2:09-cv -03450 UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF CALIFORNIA

JACOB MORRIS,Plaintiffv .



Plaintiffs Motion to Rem and 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. 1 447 (c). Because defendant ALZA Corporation has its principal place of business in California, remov al is improper under 28 U.S.C. 1 441 (b). Prelim inary Statem ent This is an action for the wrongful death of Michael Morris. Michael died on January 1 3, 2004 as a result of using a prescribed, defectiv e 50 mcg/hr Duragesic fentany l patch. Although the patch is not intended to deliv er a fatal dose of fentany l, tox icological testing of Michaels blood rev ealed that he had a lethal blood concentration of

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fentany l 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., (collectiv ely , 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 Pennsy lv ania Corporation with its principal place of business in New Jersey . Two day s after Jacob filed his complaint, Ortho-McNeil remov ed this case to federal court based on div ersity jurisdiction. (Dkt. 2.) Ortho-McNeil alleges that the remov al was proper despite the fact that ALZAs principal place of business is in California. Under the forum-defendant rule in 28 U.S.C. 1 441 (b), a case cannot be remov ed if an in-state defendant has

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2 3 3 1 W . Nor t h w est Hig h w a y been joined and serv ed ev en if complete div ersity otherwise ex ists. Ortho-McNeil remov ed this case before 2 n d Floor Jacob had time to serv e his complaint, and presumably Ortho-McNeil will argue that it is entitled to remov e any Da lla s, T X 7 5 2 2 0 V iew Ma p time before ALZAthe forum defendanthas been serv ed. But, as numerous courts hav e made clear, the (h t t p://m a ps.g oog /m a ps? purpose of the and serv ed language is to prev ent a plaintiff from defeating div ersity jurisdiction by suingbut q=2 3 3 1 +W .+Nor t h w est +Hig h w a y +2 n d+Floor +Da lla s,+T X +7 5 2 2 0 &oe=u t fnot serv ingan in-state defendant that the plaintiff does not intend to pursue. Here, it is undisputed that Jacob 8 &clien t =fir efox a &ie=UT F8 &h q=&h n ea r =2 3 3 1 +W +Nor tserv h w est +Hw y ,+Da lla s,+T ex a s+7 5 2 2 0 &g l=u s&t =h &z=1on 6 ) January 4 and intends to pursue his claims against all ed Ortho-McNeil on December 31 and ALZA T oll Fr ee: (8 7 7 ) 4 4 6 -9 0 0 1 Loca l: (2 1 4 ) 2 3 7 -9 0 0 1 Fa x : (2 1 4 ) 2 3 7 -9 0 0 2

defendants. Accordingly , Ortho-McNeils swift remov al was an unmistakable act of forum manipulation that contrav enes the logic and policy underly ing the federal remov al statutes and the forum-defendant rule. Jacobs case should be remanded to state court. Background

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Michael was a patient of Sharon Weinstein, M.D. and Oliv ia Walton, PA. Michael was prescribed a 50 mcg/hr Duragesic fentany l patch for his pain. (Compl. 9, 1 1 (Attachment 1 to Decl. of R. Biernat, Dkt. 1 ).) The patch deliv ers the drug fentany l through the patients skin. Fentany l is an ex tremely dangerous drug that is at least 80 times stronger than morphine. (Compl. 1 1 -1 2.) If a patch functions as intended and is properly used by the patient, the patient should not receiv e a harmful dose of fentany l. (Compl. 1 2.) Michael filled his prescription in December 2003. He died on January 1 3, 2004. Tox icological testing on his blood found that he had a lethal blood concentration of fentany l when he died. (Compl. 1 9.) The autopsy report notes that a single Duragesic 50 mcg/hour fentany l patch was found on Decedents body and that Decedents fentany l blood concentration was three times higher than ex pected from a 50 mcg patch. (Compl. 1 9.) Michael did not abuse the patch or otherwise use it inappropriately . (Compl. 1 2.) 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 Pennsy lv ania corporation with its principal place of business in New Jersey , it does business in California. (Compl. 6.) The Drug Companies hav e 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 ALZAs manufacturing and quality -control/assurance policies were deficient. (Compl. 1 7 .) ALZA again recalled patches in 2008. (Compl. 1 7 .) On December 9, 2009, Jacob filed suit against the Drug Companies. Two day s later, before Jacob had serv ed the defendants, Ortho-McNeilwho was apparently monitoring the state-court docketfiled a notice of remov al. (Dkt. 1 .) Both parties hav e since been serv ed. Jacob now files this motion to remand under 28 U.S.C. 1 447 (c). Argum ent and Authorities 1 . A. Because rem ov al is disfav ored, any am biguities are resolv ed against rem ov al.

A defendant may remov e an action from state to federal court under 28 U.S.C. 1 441 (a) only when the federal court has original jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1 987 ). Under 28 U.S.C. 1 332, federal district courts hav e original jurisdiction ov er all civ il actions in which the amount in controv ersy ex ceeds $7 5,000 and the action is between citizens of different states. Congress permitted div ersity jurisdiction to prev ent local prejudice against out-of-state defendants. McSparran v. Weist, 402 F.2d 867 , 87 6 (3d Cir. 1 968); S. Rep. No. 1 830, 85th Cong., 2d Sess., reprinted in 1 958 U.S. Code Cong. & Admin. News 3099, 31 02 (ex plaining the purpose of div ersity of citizenship legislation . . . is to prov ide a separate forum for out-of-state citizens against the prejudices of local courts and local juries by making av ailable to them the benefits and safeguards of the federal courts). But because in-state defendants need no protection from local bias, Congress prohibited remov alev en when div ersity jurisdiction otherwise ex istswhen 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. Underw riters at Lloyds of London, 1 06 F.3d 494, 499 (3d Cir. 1 997 ). Specifically , 28 U.S.C. 1 441 (b) prov ides that remov al is improper if none of the parties in interest properly joined and serv ed as defendants is a citizen of the State in which such action is brought. The forum-defendant rule in 1 441 (b) is merely one ex ample indicating that Congress disfav ors remov al. Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 1 0, (1 951 ) (noting that an important [Congressional] purpose [of the 1 948 rev ision of the United State Court concerning remov al] was to limit remov al from state courts). Giv en remov als disfav or, federal remov al statutes are strictly construed against the ex ercise of remov al jurisdiction. Abrego v. Dow Chem. Co. , 443 F.3d 67 6, 685 (9th Cir. 2006) (citing Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002)); California ex rel. Lockyer v. Dynegy, Inc. , 37 5 F.3d 831 , 838 (9th Cir. 2004); Golden 1 Credit Union

v. H & B Group, Inc. , No. 1 :06-cv -1 7 1 7 , 2007 U.S. Dist. LEXIS 31 1 42, at *7 (E.D. Cal. Apr. 27 , 2007 ) (The remov al statute must be strictly construed, with all doubts and ambiguities resolv ed against remov al and in fav or of remand.) (citing Shamrock Oil & Gas Corp. v. Sheets , 31 3 U.S. 1 00, 1 08 (1 941 )). The strong presumption against remov al jurisdiction means that the defendant alway s has the burden of establishing that remov al is proper. Gasu v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1 992) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co. , 303 U.S. 283, 288-90 (1 938)). These principles fav or remanding this case to state court. 1 . B. Rem and is required because ALZA is a forum defendant.

As discussed below, the joined and serv ed language was included in 1 441 (b) to prev ent plaintiffs from suing, but not serv ing or pursuing, an in-state defendant solely to prev ent remov al. The Drug Companies seek to turn the purpose of 1 441 (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 remov e an action as long as they do so before the forum defendant is serv ed. Y et, there is no sound justification for permitting the Drug Companies to do what Congress in 1 948 (when it amended 1 441 (b) to add the joined and serv ed language) could not hav e env isionedthe ability of sophisticated forum defendants to monitor computerized dockets. This justification is especially absent when the nonforum defendantsuch as Ortho-McNeilremov es before any party has been serv ed because there can be no inference that plaintiff has attempted to engage in gamesmanship by not serv ing the forum defendant. Accordingly , the court should remand this case to the state court. 1 . 1. T he purpose of the joined and serv ed language of 1441(b) is to prev ent gam esm anship. The purpose of the joined and serv ed requirement is to prev ent a plaintiff from blocking remov al by joining as a defendant a resident party against whom it does not intend to proceed, and whom it does not ev en serv e. Stan Winston Creatures, Inc. v. Toys R Us, Inc., 31 4 F. Supp. 2d 1 7 7 , 1 81 (S.D.N.Y . 2003); accord Mohammed v. Watson Pharms., Inc. , No. SA CV 09-7 9, 2009 U.S. Dist. LEXIS 31 094, at *1 0-1 1 (C.D. Cal. Mar. 26, 2009); Sullivan v. Novartis Pharms. Corp. , 57 5 F. Supp. 2d 640, 644-45 (D.N.J. 2008); Ethington v. Gen. Elec. Co. , 57 5 F. Supp. 2d 855, 861 -62 (N.D. Ohio 2008); Holmstrom v. Harad , No. 05 C 27 1 4, 2005 U.S. Dist. LEXIS 1 6694, at *6 (N.D. Ill. Aug. 1 1 , 2005). In this case, the Drug Companies are attempting to capitalize on the plain language of the and served requirement by employ ing their own form of gamesmanshipmonitoring the state-court docket and then remov ing cases before plaintiffs can serv e them. Some cases hav e held that the plain language [1] allows sophisticated defendants to attempt to remov e a case before they can be serv ed. (file:///C:/Users/Becky /Downloads/Motion%20to%20Remand%20--Morris.doc#_ftn1 ) But the better reasoned line of authority prohibits such procedural gamesmanship because it flouts congressional intent and runs [2] counter to the logic and policy underly ing federal div ersity jurisdiction and the forum-defendant rule.
(fi l e:///C:/Users/Becky /Down l oads/Moti on %20to%20Rem an d%20--Morri s.doc#_ftn 2)

1 . 2. A literal reading of 1441(b) to allow rem ov al prior to serv ice on the forum defendantscontrary to congressional intentperm its gam esm anship. The goal of judicial statutory interpretation is to actualize legislativ e intent. U.S. v. Am. Trucking Assns, 31 0 U.S. 534, 542 (1 940) (the function of the courts in interpreting statutes is to construe the language so as to giv e effect to the intent of Congress). Usually , the best indication of the drafters intent is the statutes 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 legislativ e intent: There is . . . no more persuasiv e ev idence of the purpose of a statute than the words by which the legislature undertook to giv e ex pression to its wishes. Often these words are sufficient in and of themselv es to determine the purpose of the legislation. In such cases we hav e followed their plain meaning. When that meaning has led to absurd or futile results, howev er, this Court has looked bey ond the words to the purpose of the act. Frequently , ev en when the plain meaning did not produce absurd results but merely an unreasonable one plainly at v ariance 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, 57 1 (1 982) (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, 57 5 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 statutes purpose or would result in an absurd outcome, a court must look bey ond the plain meaning of the statutory language.). Numerous courts hav e refused to apply the plain-language interpretation of the joined and serv ed prov ision because it leads to untenable, absurd, and unreasonable results. See, e.g. , DeAngelo-Shuayto , 2007 U.S. Dist. LEXIS 92557 , at *1 2; Brow n, 2008 U.S. Dist. LEXIS 55490, at *1 4-1 5 (consolidated cases for purposes of motions to remand); Fields v. Organon USA Inc. , No. 07 -2922, 2007 U.S. Dist. LEXIS 92555, at *1 0-1 1 (D.N.J. Dec. 1 2, 2007 ). Specifically , blind application of the literal properly joined and serv ed language of 1 441 (b) creates a procedural anomaly whereby defendants can alway s av oid the imposition of the forum-defendant rule if they monitor the state docket, av oid serv ice, and remov e the action to federal court before the plaintiff serv es the forum defendant (no matter how diligently the plaintiff attempts to effectuate serv ice). DeAngelo-Shuayto, 2007 U.S. Dist. LEXIS 92557 , at *1 2. In addition to ev iscerating the forum-defendant rule, such interpretation likewise eliminates a plaintiffs well-established right to choice of forum, by essentially precluding a plaintiff from being able to litigate in the defendants own home state courts if the defendant is a sophisticated litigant. Ethington, 57 5 F. Supp. 2d at 862; Mohammed , 2009 U.S. Dist. LEXIS 31 094, at *1 1 -1 2. Giv en that Congress

intended the properly joined and serv ed language to prev ent litigant gamesmanship, it would be especially absurd to interpret the same joined and serv ed 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 *1 2 (E.D. Pa. 2008); Mohammed , 2009 U.S. Dist. LEXIS 31 094, at *1 4 (noting that Congress in the 1 940s could not [3] hav e had electronic monitoring of dockets in mind when adding the joined and serv ed language). (file:///C:/Users/Becky /Downloads/Motion%20to%20Remand%20--Morris.doc#_ftn3) This rationale is true ev en when the nonforum defendant such as Ortho-McNeilremov es the case before any defendants hav e been serv ed. See, e.g. , Holmstrom , 2005 U.S. Dist. LEXIS 1 6694, at *6 (The joined and serv ed requirement makes sense . . . when one defendant has been serv ed but the named forum defendant has not. . . . When no defendant has been serv ed, howev er, 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 serv ed requirement is wholly unnecessary for an un-serv ed non-forum defendant.); accord Mohammed , 2009 U.S. Dist. LEXIS 31 094, at *1 5 ([T]he court finds that remov al under Section 1 441 (b) by a nonforum defendant where no defendants hav e y et been serv ed is improper because it promotes gamesmanship by defendants and likely depriv es plaintiffs of a meaningful opportunity to effectuate serv e.). After all, the 30-day period for either defendant has not ev en begun to run for either defendant. See Holmstrom , 2005 U.S. Dist. LEXIS 1 6694, at *6. When ruling on a motion to remand, a district court must resolv e all contested issues of substantiv e fact and any uncertainties as to the current state of controlling law in fav or of the plaintiff. See Brow n v. Francis , 7 5 F.3d 860, 865 (9th Cir. 1 995) (If there is any doubt as to the propriety of remov al, that case should not be remov ed to federal court.); see also Mohammed , 2009 U.S. Dist. LEXIS 31 094, at *1 5. In the instant case, the Drug Companies monitored the California state-court docket, and Ortho-McNeil remov ed the case before either of the Drug Companies could be serv ed. Jacob serv ed both defendants after the complaint was filed and intends to pursue all defendantsincluding forum defendant ALZAin this case. Therefore, the policies underly ing 1 441 (b)s joined and serv ed prov ision are inapplicable, and the remov al was simply forum manipulation by sophisticated litigants. Allowing remov al under such circumstances would reward the Drug Companies for using the v ery kind of litigation gamesmanship that the forum-defendant rule was crafted to av oid. Conclusion and Pray er 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, DREY ER, BABICH, BUCCOLA, CALLAHAM & WOOD, LLP By : _________________________________

CRAIG C. SHEFFER, ESQ./ SBN: 1 31 243 Attorney s for Plaintiff


(file:///C:/Users/Becky /Downloads/Motion%20to%20Remand%20--Morris.doc#_ftnref1 ) See, e.g. , Waldon v. Novartis Pharms., Corp. , No. C07 -1 988, 2007 U.S. Dist. LEXIS 45809 (N.D. Cal. June 1 8, 2007 ); City of Ann Arbor Employees Ret. Sys. v. Gecht , No. C-06-7 453, 2007 U.S. Dist. LEXIS 21 928 (N.D. Cal. Mar. 9, 2007 ); Massey v. Cassens & Sons, Inc. , No. 05-CV -598-DRH, 2006 U.S. Dist. LEXIS 967 5, at *1 0 (S.D. Ill. Feb. 1 6, 2006) (While an argument can be made that the likely policy underly ing the joined-and-serv ed requirement is not implicated by the current facts, the Court is constrained by the language of 28 U.S.C. 1 441 .).


(file:///C:/Users/Becky /Downloads/Motion%20to%20Remand%20--Morris.doc#_ftnref2)See, e.g. , NFC Acquisition, LLC v. Comerica Bank, 640 F. Supp. 2d 964 (N.D. Ohio 2009); Mohammed , 2009 U.S. Dist. LEXIS 31 094; Standing v. Watson Pharms, Inc. , No. 30829 (C.D. Cal. Mar. 26, 2009); Brow n v. Organon Intl, 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, 57 5 F. Supp. 2d at 647 ; Ethington, 57 5 F. Supp. 2d at 864; Grizzly Mt. Aviation, Inc. v. McTurbine, Inc ., No. C-08-87 , 2008 U.S. Dist. LEXIS 27 81 4, at *1 0 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. 1 2, 2007 ); Fields v. Organon USA Inc. , No. 07 -2922, 2007 U.S. Dist. LEXIS 92555 (D.N.J. Dec. 1 2, 2007 ).



(file:///C:/Users/Becky /Downloads/Motion%20to%20Remand%20--Morris.doc#_ftnref3)Accord Brow n, 2008 U.S. Dist. LEXIS 55490, at *1 4 (To apply the properly joined and serv ed language literally where an instate defendant remov es, would promote the same ty pe of litigant gamesmanship that the rule seeks to limit, and thus v iolate the clear purpose of the legislativ e prov ision.); Sullivan, 57 5 F. Supp. 2d at 645-46 (Congress could not possibly hav e anticipated the tremendous loophole that would one day manifest from technology enabling forum defendants to circumv ent the forum-defendant rule by , inter alia, electronically monitoring state court dockets. . . . [A]s a matter of common sense . . . the properly joined and serv ed language [was not added] to reward defendants for conducting and winning a race, which serv es no conceiv able public policy goal, to file a notice of remov al before the plaintiffs can serv e process.). Share this


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