We just received this e-mail from a regular visitor to the blog. (We don’t know whether he wants to be identified, so we’re not publishing his name, but the words below are not ours.)
In light of the continued interest in pre-service removal cases, note that both Valerio v. SmithKline Beecham Corp., No. 08-60522-CIV, 2008 WL 3286976 (S.D. Fla. Aug. 7, 2008), and Bolin v. SmithKline Beecham Corp., No. 08-60523-CIV, 2008 WL 3286973 (S.D. Fla. Aug. 7, 2008), as well as an earlier order in the Masterson case – Masterson v. Apotex Corp., No. 07-61665-CIV, 2008 WL 2047979 (S.D. Fla. May 13, 2008), hold that “properly joined and served” under 28 U.S.C. section 1441(b) means what it says – the court “look[s] only at ‘properly joined and served’ defendants at the time of removal.” Valerio, 2008 WL 3286976 at *2.
In this trifecta of cases, a non-Florida defendant, SmithKline Beecham, removed each case prior to service on not only itself but before service on the Florida defendant, Apotex Corp. The court held that those removals satisfied the literal language of section 1441(b) and noted additional policy considerations in favor of such a reading, reasoning that “in the limited situations such as the present case when a non-forum state defendant removes a case also involving a forum defendant, it is necessary to only consider properly served defendants so as to not allow a plaintiff to thwart removal rights of diverse, non forum state defendants by not serving the forum state defendant.” Id. Thus, the court distinguished cases in which the forum defendant is also the removing party, including cases filed in Pennsylvania in which SmithKline Beecham attempted removal as the forum defendant.
As a result, the reasoning somewhat follows that of Judge Baylson as noted in your June 16, 2008 post. Overall, defense counsel monitoring court dockets for filing with the idea of effecting removal in similar cases before service on a forum defendant should add Valerio, Bolin, and Masterson to their repertoire.
Thanks very much to our reader for alerting us to those new cases.
And, for those doing battle over this issue, here’s a link that collects our previous posts on the subject of pre-service removal.