Today’s case of the day, Gentile v. Biogen IDEC (D. Mass. 2013), is outside of Letters Blogatory’s scope of coverage, but I am writing about it anyway because it involves one of my favorite subjects in civil procedure, removal of cases from a state court to a federal court. In my first year of practice, one of the partners in my former firm (the late lamented Hill & Barlow) circulated a memorandum on removal to the young associates. I wish I still had a copy. At the top, it said something like: “The only proper attitude towards removal is abject terror.” The point is that there are lots of opportunities for fatal missteps when removing a case. But I digress.

Gerald Gentile, the administrator of the estate of Diane Gentile, sued Biogen IDEC and Elan Pharmaceuticals for wrongful death in the Middlesex County Superior Court. The claim was that Ms. Gentile had died as a result of infusions of a drug called Tysabri, which Gentile alleged was manufactured by the defendants.

Ms. Gentile was a citizen of New York. Biogen is a Delaware corporation with a principal place of business in Massachusetts. Elan is a Delaware corporation with a principal place of business in California. Because no plaintiff had the same citizenship as any defendant, Gentile could have brought the suit in the federal court in the first instance. Ordinarily, any suit that could have been brought in the federal court can be removed from the state court to the federal court, but there is an exception: a diversity action

shall be removable only 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.

28 U.S.C. § 1441(b) (2006).¹ What is the point of this statute? The main policy that animates federal jurisdiction in diversity-of-citizenship cases it to avoid the supposed bias a state’s courts might have in favor of that state’s own citizens. But if the defendant himself is a citizen of the state where the plaintiff sues, then there is no reason to fear that the plaintiff might have, as it were, home court advantage.

A few days after commencement of the action, and before Gentile had effected service on either defendant, Elan removed the case to the federal court. Ordinarily, all defendants must join in a notice of removal, but the requirement of unanimity does not apply to any defendant that has not been served with process at the time of removal. Gentile served both defendants with process within two days of the removal. He then moved to remand the case to the Superior Court.

The question in the case was this: the statute forbids removal only if a defendant properly joined and served is a citizen of the forum state. Does this really mean what it seems to say? Can a defendant remove a case to federal court by winning the race to the courthouse, that is, by removing the case faster than the plaintiff can serve the summons? The district court decisions are mixed, and because, under 28 U.S.C. § 1447(d), an order remanding a case to a state court “is not reviewable on appeal or otherwise,” there is no appellate precedent.

According to the judge, the courts that have held that cases are not removable before service on at least one defendant have generally focused on policies that, in their view, outweighed the plain meaning of the statute.

But the judge took a different approach. He asserted that the plain language of the statute itself showed that removal before service was improper. According to the judge, the phrase “none of the parties” means “not any of the parties,” and “any” means “one or more indiscriminately from all those of a kind.” Thus, in the judge’s view, the phrase “none of the parties in interest properly joined and served as defendants” presupposes that there is at least one party that has been “properly joined and served as defendant[].”

This is plausible as a matter of grammar and apparently in accord with the policy of the statute. As the judge explains, the phrase “properly joined and served” was added to the statute in order to prevent plaintiffs from joining improper parties as defendants in order to defeat removal. However, in light of the split of authority, it might be wise for Congress to consider an amendment that uses less difficult language to make the statutory intent clear.

There is a practical consequence to all this. If a plaintiff brings a case in a state court and it wants to keep the case there, it should serve process on the defendant who resides in the forum state first.

1. I am quoting the statute in effect for actions commenced prior to January 2012, which is the relevant statute for purposes of this case. The current statute reads: “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).