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Sullivan v. Novartis Pharmaceuticals Corp.

September 9, 2008


The opinion of the court was delivered by: Debevoise, Senior District Judge



Plaintiffs, Nancy Sullivan and Burt Sullivan (the "Plaintiffs"), brought this action against Novartis Pharmaceuticals Corp., Novartis Corp., Novartis Pharmastein AG, and Novartis AG Novartis (the "Defendants") in the New Jersey Superior Court (the "Superior Court") with claims based upon products liability and consumer fraud under various New Jersey statutes and the New Jersey common law. Novartis filed a notice of removal (the "Notice") in the United States District Court for the District of New Jersey, and Plaintiffs now bring this motion to remand the action to the Superior Court.

The facts of this young case are simple. According to the Complaint, Nancy Sullivan suffered injuries caused by her use of Novartis's pharmaceutical product, Zelnorm(r) ("Zelnorm"), a drug used to treat irritable bowel syndrom. Plaintiffs state nine causes of action, two of which are relevant to this motion. Count three alleges failure to warn, pursuant to the New Jersey Products Liability Act ("NJPLA"), N.J.S.A. § 2A:58C-1 to -11. Count ten seeks punitive damages under the common law, the New Jersey Punitive Damages Act ("NJPDA"), N.J.S.A. §§ 2A:15-5.9 to -17, and the punitive damages provision of the NJPLA (N.J.S.A. § 2A:58C-5(c)).

After Plaintiffs filed the complaint, but before service could be affected, Novartis filed the Notice. Plaintiffs bring the instant motion on the grounds that the forum defendant rule precludes removal based upon diversity jurisdiction, and that the court lacks federal question jurisdiction because the action is attended by claims arising only from state law.


The court must resolve two separate issues in order to determine whether this case belongs in federal court. Novartis skillfully contends, first, that the case is removable based upon diversity jurisdiction because 28 U.S.C. § 1441(b)--which precludes removal in cases in which a forum defendant has been "properly joined and served"--should be interpreted according to its plain meaning, permitting removal in this case. Second, Novartis argues that Plaintiffs' causes of action invoke substantial issues of federal law which support federal question jurisdiction.

Both of these arguments are unavailing.

I. Removal Generally

Congress has enacted a comprehensive statutory scheme addressing the removal of state court actions to federal court. See 28 U.S.C. §§ 1441-1452. Section 1441(a) provides that:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court . . . embracing the place where such action is pending.

In diversity cases, section 1441(b) imposes another condition above the requirements of original diversity jurisdiction, known as the "forum defendant rule." Pursuant to section 1441(b), an action can be removed on the basis of diversity jurisdiction "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." Thus, the forum defendant rule precludes removal based on diversity where a defendant is a citizen of the forum state--the state in which the plaintiff originally filed the case. See, e.g., Blackburn v. United Parcel Service, Inc., 179 F.3d 81 (3d Cir. 1999).

There is no similar provision restricting jurisdiction based upon questions of federal law, and a case is removable--regardless of the forum residence of the defendant--if the court must resolve a substantial federal issue in order to dispose of the matter. See Grable & Sons Metal Prods., Inc. V. Darue Eng'g & Mfg., 545 U.S. 308 (2005).

II. Diversity Removal

In this case, the diversity of the parties and the amount in controversy are not disputed, so the court has original diversity jurisdiction over this case. At the time the Notice was filed, Novartis had not yet been properly joined and served in this action, and Novartis argues that, according to the plain meaning of section 1441(b), the forum defendant rule only applies to defendants that have been "properly joined and served." Thus, Novartis contends that the removal was proper and should not be reversed.

Plaintiffs argue that applying the plain meaning of section 1441(b), and allowing Novartis--a forum defendant--to avoid the forum defendant rule merely because it had not yet been served at the time it filed the Notice, would amount to an absurd result, demonstrably at odds with Congressional intent. The court agrees.

In Fields v. Organon USA Inc., the court addressed precisely this issue, finding that the application of the plain meaning of section 1441(b) led to a result inconsistent with the intent of Congress. 2007 WL 4365312 (D.N.J. 2007). The court held that a defendant "is subject to the restrictions of section 1441(b) regardless of whether it had been properly served at the time of removal." Id., at *3. See also DeAngelo-Shuayto v. Organon USA Inc., 2007 WL 4365311 (D.N.J. 2007) (Section 1441(b) applies even if the removing defendant has not been joined and served.).

Several district courts have come to the opposite conclusion, including this court. See, e.g., Chonko v. Comm'r of Soc. Sec., 2008 U.S. Dist. LEXIS 32867, at **12-13 (D.N.J. Apr. 22, 2008); Vongphakdy v. Astrue, 2008 U.S. Dist. LEXIS 18752, at *3 (E.D. Pa. Mar. 11, 2008); Frick v. Novartis Pharms. Corp., 2006 WL 454360 (D.N.J. 2006). In Frick, we found that the language of section 1441 was unambiguous, and that there was no clear indication that application of the plain meaning would result in an outcome demonstrably at odds with the will of provision's drafters. Id., at **2-3

The various opinions applying the plain meaning of section 1441 have relied primarily on the principle of statutory construction which holds that courts should apply the plain meaning of a statute when the statutory language is clear and unambiguous. However, these courts, for the most part, have ignored a less often cited, but equally important, principle of statutory construction which holds that when the literal application of statutory language would either produce an outcome demonstrably at odds with the statute's purpose or would result in an absurd outcome, a court must look beyond the plain meaning of the statutory language. Stephens v. Astrue, 2008 U.S. Dist. LEXIS 21429, at **8-9 (D. Md. Mar. 12, 2008); see also Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring); In re Kaiser Aluminum Corp., 456 F.3d 328, 338 (3d Cir. 2006) ("A basic tenet of statutory construction is that courts should interpret a law to avoid absurd or bizarre results."); United States v. Zats, 298 F.3d 182, 187 (3d Cir. 2002) (refusing to "read a text to produce absurd results [that are] plainly inconsistent with the drafters' intentions").

The literal application of § 1441(b) in this case would both produce bizarre results that Congress could not have intended, and results that are demonstrably at odds with the objectives Congress did intend to effect. Therefore, the Court will look beyond the language of the statute in order to avoid an absurd and bizarre result, and in order to give effect to the purpose of the forum defendant rule and the "properly joined and served" language.

A. The Purpose of the "Properly Joined and Served" Language

The purpose of the "properly joined and served" language is to prevent the abuse of the forum defendant rule by improper joinder (formerly referred to as fraudulent joinder)*fn1 . Brown v. Organon USA Inc., 2008 WL 2625355, at *7 (D.N.J.); Allen v. GlaxoSmithKline PLC, 2008 WL 2247067, at *6 (E.D.Pa.); Brown v. Organon Intern. Inc., 2008 WL 2833294, at **4-5 (D.N.J.); DeAngelo-Shuayto, 2007 WL 4365311, at *1; Stan Winston Creatures, Inc. v. Toys "R" US, Inc., 314 F.Supp.2d 177, 181 (S.D.N.Y.); Holmstrom v. Harad, No. 05-2714, 2005 WL 1950672, at *2 (N.D.Ill.); Aredia and Zometa Products Liability Litigation, No. 07-0779, 2007 WL 2905247, at *2 (M.D.Tenn.).*fn2

Despite the court's recent conclusion that the language of section 1441(b) is unambiguous, and that resort to legislative history was, therefore, unnecessary, see Frick, 2006 WL 454360 at **2-3, an analysis of the issues presented in this case cannot avoid a discussion of the purpose of section 1441(b). In determining the purpose of section 1441(b), we look to the relevant legislative history, and the structure and historical context of the statute. U.S. v. E.I. Dupont De ...

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