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On the one hand, there’s the plain language of the statute.
On the other hand, some courts think that a literal reading of the statute would yield “a bizarre result” that “cannot possibly have been the intent of the legislature.”
So some courts follow the language, and others ignore it. The law becomes a muddle.
That happened when Congress accidentally wrote in the Class Action Fairness Act that “a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand . . . if application is made to the court of appeals not less than 7 days after entry of the order.” 28 U.S.C. §1453(c)(1) (emphasis added). Does CAFA really impose a seven-day waiting period for appeals of remand decisions or, more likely, did Congress mean to impose a seven-day deadline, requiring that appeals be taken not more than 7 days after entry of the remand order?
In the CAFA setting, many courts simply ignored the statutory language, reading “less” to mean “more” — which is an awfully dangerous approach to statutory construction. Our guest blogger, Sean Costello of Jones Day, opined that Judge Easterbrook of the Seventh Circuit solved this riddle in Spivey v. Vertrue, Inc., 528 F.3d 982 (7th Cir. June 11, 2008), holding that “less” means “less” and finding another route to avoid the absurdity seemingly imposed by that reading.
That’s one out of the way.
Shift gears.
The conventional thinking is that a defendant sued in its home state court cannot remove the action to federal court. The removal statute, 28 U.S.C. Sec. 1441(b), contains the “resident defendant” exception to removal based on diversity jurisdiction. An action can be removed on the basis of diversity 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.”
Suppose, however, that the plaintiff names a resident defendant in the complaint, but the defendant removes the case before the plaintiff has served it? The plain language of the statute seems to permit removal of such a case, but plaintiffs argue that such a literal construction leads to absurd results, because defendants could evade the resident defendant exception simply by removing actions before service.
We’ve followed this issue with interest — here, here, here, and here. And Judge Baylson’s approach, which allows courts to split the baby, here. (We just can’t get enough of this puppy. Are we weird, or what?)
A recent pair of cases brings this issue back into our sights, because they so squarely show the clash between the “literal language” line of reasoning and the opposing “ignore the language to prevent absurdity” rationale.
Thus, in Brown v. Organon International, Inc., No. 07-3092(HAA), 2008 WL 2833294 (D.N.J. July 21, 2008), plaintiffs sued Organon (a New Jersey citizen) in New Jersey state court. Organon removed the action on the basis of diversity before the plaintiff effected service. Judge Ackerman, following the recommendation of Magistrate Judge Salas, would have none of it: “Reading the statute literally would give rise to the absurd, ‘untenable result that forum defendants can remove actions from state court as long as they do so before they are served.’ . . . ‘Such a bizarre result cannot possibly have been the intent of the legislature.'” Id. at *4 (citations omitted). Motion to remand granted.
And then there’s the other side of the coin. Just one week later, in In re Fosamax Prods. Liab. Litig., No. 1:07-cv-2442 (JFK), 2008 U.S. Dist. Lexis 57473 (S.D.N.Y. July 28, 2008) a court reached precisely the opposite result. There, plaintiff sued Merck (a New Jersey citizen) in New Jersey state court. (The MDL Panel transferred all of the Fosamax cases to New York, so Judge Keenan of the S.D.N.Y. ultimately ruled on plaintiff’s motion to remand.) Merck removed before plaintiff had served it. Judge Keenan read the same Section 1441(b) that Judge Ackerman had read, but Judge Keenan didn’t see any issue at all: “Plaintiff does not claim that she served Merck or any other in-state defendant before removal. . . . [T]he plain language of section 1441(b) allows removal unless an in-state defendant has been ‘properly joined and served.’ . . . Therefore, the case was removable and Flores’ motion to remand is DENIED.'” Id. at *47.
You couldn’t ask for a more stark contrast of results — or of judicial philosophies.
Although our crystal ball is cloudy, we predict that the view reading statutory language literally will ultimately prevail. Just as Judge Easterbrook finally cracked the riddle in the context of CAFA, some judge will find a way to read the removal statute literally and yet avoid any absurd result, or else state courts or Congress will revamp the existing legal framework to avoid any supposed gamemanship.
Any other solution can’t last in the long run. If courts have the power to ignore unambiguous statutory language, then laws will have lost their meaning, and the judiciary will no longer be The Least Dangerous Branch.