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One of the benefits of blogging is that, after a while, dedicated readers start helping us out.  Usually, we’re in a position simply to pass what we receive along to the rest of our audience, but sometimes the heads-ups we receive are actually beneficial to our own litigation.  Either way, keep those opinions and orders coming.

That’s what happened last Wednesday.  We received two interesting cases from two different sources.  The first case was a nice preemption win, Wells v. Allergan, Inc., C.A. No. 6:12-3509-TMC, slip op. (D.S.C. Jan. 13, 2014), sent to us by prevailing counsel, Rich Dukes, of Turner Padget.  We, of course, turned around and shipped Wells off to Westlaw, and by the time you read this, it should be available at 2014 WL 117773.

Wells involves a device, injectable gel dermal fillers, that before reading the decision, we confess we’d never heard of.  We still don’t know much about them, but their critical attribute, from a preemption standpoint, is that they were pre-market approved by the FDA.  Ring that bell, and we defense lawyers start salivating.

With good reason.

In Wells, PMA preemption resulted in outright dismissal for failure to state a claim.  The court summed up the scope of FDA activity in a PMA pithily:  “During that process, the FDA evaluates everything about the device, from labeling to safety.”  Wells, slip op. at 3.  There’s a nice discussion of Buckman preemption, too, id. at 3-4, but nothing so quotable.

Anyway, the plaintiff in Wells fell back, as PMA plaintiffs are wont to do, on “parallel” claims.  No dice.  Plaintiff didn’t plead anything more than “barebones, conclusory allegations.”  Slip op. at 5.  The complaint did not “identify the federal requirement applicable to the device,” “explain how that violation . . . caused the plaintiff’s injury,” or “identify specific device defects.”  Id. at 4-5.  Thus, Wells earned a place on our TwIqbal cheat sheet as well.

Finally, the plaintiff in Wells put the cart before the horse and claimed to need discovery before being able to plead the requisite violation claims.  Slip op. at 5.  No dice again.  That’s precisely what the Supreme Court in TwIqbal intended to avoid.  Between the FDCA’s no private right of action provision and express preemption, Congress has declared these types of tort claims doubly disfavored:

The Fourth Circuit . . . [has] outline[d] the requirements for pleading parallel claims after Riegel – the same requirements the court relies on today.  Now, following Riegel’s guidance, courts can ascertain earlier in the litigation whether a plaintiff has a proper parallel claim, thus saving the parties from engaging in expensive and unnecessary discovery.  The court declines to lower the pleading standards for this case.

Id. at at 6 (citation and footnote omitted).

A few hours later, we received another missive (and not for the first time) from Mike Imbroscio at Covington enclosing Davis v. Hoffmann-La Roche, No. 13-5051 JSC, slip op. (Mag. N.D. Cal. Jan. 14, 2014), although Mike hastened to add that it was another firm’s case.  Well, Mike, you sent it to us, not them.

Davis involves one of our favorite procedural topics, removal before service.  If you don’t know what that is, then by all means check out our posts here and here (among many others).  Davis is a case that anyone defending pharma/device (and other) clients in Northern California will want to read, since the decision holds flatly that removal before service is OK in N.D. Cal.:

The language of Section 1441(b)(2) is unequivocal:  it applies only to defendants which are “properly joined and served.”  Nonetheless, given concerns with forum shopping, district courts across the country are split on whether to strictly apply the “and served” language.  The courts in this District, however, are not.  They have uniformly held that the language of Section 1441(b)(2) is clear:  the local-defendant rule applies only to those defendants which have been properly joined and served.

Davis, slip op. at 3 (string citation omitted) (emphasis original).  There’s “nothing” in the statute that “prevent[s] sophisticated defendants from electronically monitoring state court dockets so that, as soon as a case is filed, they can speedily remove to federal court.”  Id. (citation and quotation marks omitted).

Not only that, Davis also points out (as we have here) that, after removal before service became popular (yes, we helped), Congress amended the removal statute and left the critical “properly joined and served” language intact:

This reasoning [supporting literal application of the statute] is even more apt now as in December 2011 Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63; 125 Stat. 758 (2011).  The Act addressed language of Section 1441, among other sections, but did not amend the “and served” language of Section 1441(b).

Davis, slip op. at 4.  Courts are not in the business of making statutory changes that Congress declined to enact.  Id. (“Congress, not the courts, should amend the statute”).

We thank our readers for sending us these good cases on both PMA preemption and removal before service.  They will come in handy.