United States District Court, D. Delaware
HONORABLE LEONARD P. STARK, UNITED STATES DISTRICT JUDGE
Wilmington this 27th day of June, 2017:
before the Court are motions to remand to state court
(see, e.g., C.A. No. 17-613-LPS D.I. 3), to stay
pending transfer by the Judicial Panel on Multidistrict
Litigation ("JPML") to the Eliquis Multidistrict
Litigation ("MDL") (D.I. 6), and to expedite
briefing and ruling on the motions (D.I. 5) in 33 products
liability actions related to the prescription drug Eliquis.
For the reasons stated below, in each case the Court will
deny the motion to remand, grant a stay, and deny the motion
to expedite as moot.
Plaintiffs originally filed cases in California state court
against Defendants, alleging injuries resulting from use of
Eliquis. (See D.I. 7-1 at ¶ 7) Those cases were
removed to federal court (see Id. at ¶ 8) and,
thereafter, some were transferred to the Eliquis MDL while
others were stayed pending a decision of the JPML on whether
to transfer them to the MDL. (See, e.g., D.I. 7 Ex.
H) Plaintiffs voluntarily dismissed the stayed cases on May
23, 2017 and re-filed in Delaware Superior Court on or around
that same day. (See, e.g., D.I. 4 at 1) Defendants
removed the cases from Superior Court to federal court on May
25 on the basis of diversity jurisdiction. (See D.I.
1 at ¶ 8) That was before Plaintiffs served (or, due to
Superior Court procedures, could have served) their
complaints on Defendants. (See Id. at ¶¶
16-17) On May 26, the day after Defendants removed the cases
to federal court, Defendants filed a tag-along notice to
transfer the cases to the Eliquis MDL. (See D.I. 7
at 5) The JPML filed a conditional transfer order for all
cases on June 5, 2017, to which Plaintiffs filed a notice of
opposition. (See D.I. 11 at 3) Plaintiffs represent
that they will be moving to vacate the conditional transfer
order. (SeeDl. 11 at 3)
Plaintiffs contend that Defendants' removal to federal
court is improper under 28 U.S.C. § 1441(b), due to
Defendants' status as citizens of Delaware, and they
request that the Court remand the cases back to state court.
According to Plaintiffs, Defendants' undisputed Delaware
citizenship means that Defendants cannot remove to federal
court under the "forum defendant rule." Codified at
§ 1441(b)(2), the forum defendant rule provides:
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.
(Emphasis added) Defendants contend that because there was no
service of process before they removed to federal court,
there is no forum defendant who was "properly joined and
served, " so § 1441(b)(2) does not bar removal.
(See D.I. 1 at ¶¶ 16-21)
same dispute - whether a defendant may remove a state court
action to federal court before a plaintiff has served any
defendant, when one of the properly-joined but non-served
defendants is an in-State forum defendant - has received much
judicial attention, but no uniformity of conclusions.
Instead, district courts - including this one - have answered
the question in directly conflicting ways. See, e.g.,
Stefan v. Bristol-Myers Squibb Co., 2013 WL 6354588 (D.
Del. Dec. 6, 2013) (remanding); Munchel v. Wyeth
LLC, 2012 WL 4050072 (D. Del. Sept. 11, 2012) (denying
motion to remand); Laugelle v. Bell Helicopter Textron,
Inc., 2012 WL 368220 (D. Del. Feb. 2, 2012) (remanding);
Hutchins v. Bayer Corp., 2009 WL 192468 (D. Del.
Jan. 23, 2009) (recommending denial of remand). Plainly, this
is a matter on which reasonable minds can differ, and have
undersigned judge has had several occasions to consider this
issue. Having done so again, the Court sees no reason here to
depart from its previously-adopted reasoning. See
Munchel, 2012 WL 4050072; Hutchins, 2009 WL
192468. As in Munchel and Hutchins, the
Court views the plain and unambiguous language of §
1441(b) as controlling. Section 1441(b)(2) provides that a
case in which there is 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." Here, there is diversity
jurisdiction, but because there was no service on any
defendant before removal, none "of the parties in
interest properly joined and served as defendants is
a citizen" of "the State in which [this]
action" was brought, i.e., Delaware. 28 U.S.C. §
1441(b)(2) (emphasis added).
Additionally, given the history of these cases - including
that Plaintiffs voluntarily dismissed cases originally filed
in California state court, seemingly (at least in part) to
avoid transfer to the MDL - removal is not a nonsensical result.
To the contrary, the totality of circumstances strongly
supports exercising discretion to deny Plaintiffs'
motions to remand. As Defendants accurately explain:
Plaintiffs dismissed their cases pending in California
district court (or in some cases, already in the Eliquis MDL)
and re-filed in Delaware on the same day -just two days
before the JPML hearing on the transfer of Plaintiffs'
cases to the MDL, and the same day as Plaintiffs in the
Eliquis MDL were required to submit memoranda to show cause
why their cases should not be dismissed with prejudice.
(D.I. 7 at 3) "The order to show cause process [was] the
end result of months of litigation, numerous rounds of
briefing, and extensive analysis and effort on the part of
the MDL Court. That includes the issuance of an 85-page Order
on May 8, 2017, dismissing" a case with allegations
similar (if not identical) to Plaintiffs' allegations in
material respects. (D.I. 8 at page 12 of 13) While the Court
recognizes that not all of the circumstances disfavor remand,
overwhelming majority of them do, providing further support
(in addition to the statutory analysis) for denying
Defendants move to stay these cases pending a decision by the
JPML on whether to transfer the cases to the Eliquis MDL.
Plaintiffs contend that the Court should "decide the
jurisdictional and procedural defect issues presented in the
motions to remand before considering the motions to
stay." (D.L 11 at 7) The Court has done so. Now,
however, having resolved the motion to remand against
Plaintiffs, the Court agrees with Defendants that a stay is
appropriate at this point. A stay will simplify, or
eliminate, the pretrial issues before this Court; will allow
for the possibility of efficient resolution of pretrial
issues before the MDL court, should the cases be transferred;
will not affect discovery or any other deadlines, as none
have been set; and will not unduly prejudice Plaintiffs, who
remain free to raise arguments before the JPML and, if there
is a transfer, to fully and fairly litigate their cases
before the MDL court. See St. Clair Intellectual Prop. v.
Sony Corp., 2003 WL 25283239, at *1 (D. Del. Jan. 30,
Finally, given that the Court has ruled on the pending
motions, Plaintiffs' request that the Court expedite