Snap removal is one of the few ways that defendants can counter plaintiffs’ efforts at forum shopping. When a case analyzes snap removal and expressly adopts fraudulent misjoinder in the Third Circuit, you know it gets our attention.
Today’s decision, Paddock v. Novartis Pharms. Corp., 2025 WL 1908806 (D. Del. July 11, 2025), is a report and recommendation denying remand following the defendant’s snap removal. The case involves claims by multiple plaintiffs that the defendant wrongfully promoted the off-label use of terbutaline (an asthma drug) to treat pre-term labor in pregnant women, and that the plaintiffs’ children developed autism as a result of their ingestion of the drug during pregnancy.
Prior to the decision in Paddock, the plaintiffs created a record of trying to avoid federal court jurisdiction. Two of them filed suit in California state court against the defendant, but the defendant removed the case before service. Plaintiffs then dismissed without prejudice. The same plaintiffs then filed another case in California state court, the defendant removed, and the parties filed a joint motion to dismiss without prejudice. Plaintiffs and their counsel then apparently decided that, since they weren’t having any luck in California, they’d give Delaware state court a try (Remember when it would have been crazy to think that mass tort plaintiffs would file suit in Delaware? Perhaps the decision discussed in yesterday’s post will help reverse the current trend).
A different group of plaintiffs represented by the same counsel filed a similar group of claims in Delaware state court, defendant snap removed, and the court denied remand. Higgins v. Novartis Pharms. Corp., 2025 WL 1397045 (D. Del. May 14, 2025) (we blogged about that case here). The decision in Higgins did not include much analysis, but when the same counsel with two of the plaintiffs who filed the prior two lawsuits in California gave it one more attempt in Delaware and were, once again, snap removed, the magistrate judge undertook a detailed analysis of snap removal and fraudulent misjoinder.
The court made short work of plaintiff’s argument that the forum defendant rule barred removal. In the Third Circuit, the “properly joined and served” requirement of Section 1441(b)(2) is a “bright line rule.” Paddock, 2025 WL 1908806, at *3 (citing Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 153–154 (3d Cir. 2018)). Plaintiffs sought to distinguish Encompass by arguing that they did not have time to serve the defendant before removal. But the Third Circuit addressed that in Encompass, noting that electronic monitoring of dockets has become possible since enactment of the forum defendant rule, but that snap removal was a question for the legislature, not the courts. Id.
Plaintiffs also sought remand on the grounds that two of the plaintiffs were from New Jersey, where the defendant maintained its principal place of business. Defendant countered that the New Jersey plaintiffs were fraudulently misjoined—which operates as an exception to the complete diversity rule. To establish fraudulent misjoinder, the court must find that (1) the claims have been “misjoined,” and (2) the misjoinder was egregious. Id. at *4. Misjoinder is present when “there is no common question of law or fact or when . . . the events giving rise to the plaintiff’s claim against defendant do not stem from the same transaction.” Id. (quoting DirecTV, Inc. v. Leto, 467 F.3d 842, 844 (3d Cir. 2006)). Although the Third Circuit has not expressly endorsed the doctrine of fraudulent misjoinder, it declined the chance to reject the doctrine in In re Fosamax Prods. Liab. Litig., 751 F.3d 150, 156 n.10 (3d Cir. 2014). Given that, the court opted to follow the analysis in Breitner v. Merck & Co. Inc., 2019 WL 316026 (D.N.J. Jan. 24, 2019) (more on that here), which described fraudulent misjoinder as follows:
The fraudulent misjoinder doctrine is often applied in pharmaceutical cases because “complicated causation questions pervade drug product liability claims, which often require divergent questions of law and fact. . . .” Even if the plaintiffs take the same drug and suffer similar injuries, the doctrine of fraudulent misjoinder may apply due to factual distinctions regarding the timing, source, and dosage of the drug and/or the nature or severity of the alleged injury.
Paddock, 2025 WL 1908806,at *4 (quoting Breitner, 2019 WL 316026,at *2).
Plaintiffs’ claims differed according to the alleged products ingested, the dosage and frequency, the dates of alleged ingestion, the duration of ingestion, and the locations of purchase and ingestion. Plaintiffs alleged taking terbutaline at different times during their pregnancies (from 13 to 34 weeks) and in eight different states. They also alleged different injuries, with mothers claiming injuries different from those alleged on behalf of their children (autism). The court also noted that the pleadings were vague as to which manufacturer’s terbutaline was ingested by different plaintiffs. Given all of these factual variations, the court held that there were “no pleaded averments directly establishing a relationship between the New Jersey Plaintiffs and Defendant.” Id. at *5. That satisfied the misjoinder prong, and the court then turned to whether the misjoinder was egregious.
It was. The complaint did not specifically allege that the two New Jersey plaintiffs ingested terbutaline manufactured by the defendant, suggesting that the “complaint was structured in a way to defeat diversity jurisdiction.” Id. Although the court did not specifically mention it in its holding, the fact that two of the plaintiffs tried filing suit in California and then relocated to Delaware when their efforts to stay in state court were unsuccessful probably contributed to the holding that the misjoinder was egregious.
The court recommended that the district judge deny the motion to remand. Plaintiffs’ repeated efforts to avoid federal jurisdiction were not successful. Instead, those efforts resulted in a thorough analysis of snap removal and fraudulent misjoinder. We’ll snap to that.