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Copley v. Wyeth

April 22, 2009

SUZANNE COPLEY, PLAINTIFF
v.
WYETH, INC., ET AL., DEFENDANTS



The opinion of the court was delivered by: Pratter, J.

MEMORANDUM

Suzanne Copley has sued Wyeth, Inc., Wyeth Pharmaceuticals, Inc., Schwarz Pharma, Inc., Actavis, Inc., and Actavis Elizabeth LLC for injuries she allegedly sustained from the long-term ingestion of Reglan/metoclopramide as prescribed by her physician.

Ms. Copley filed suit in state court, and Schwarz Pharma timely removed the case to this Court. Ms. Copley has moved to remand the case to state court because, she contends, jurisdiction in this Court is not appropriate given that Defendant Wyeth Pharmaceuticals is a citizen of the Commonwealth of Pennsylvania.

As discussed more fully below, the Court will deny Ms. Copley's Motion to Remand. Although Wyeth Pharmaceuticals is indeed a citizen of Pennsylvania, at the time Schwarz Pharma, a non-forum defendant, removed the case to federal court, Wyeth Pharmaceuticals had not been properly joined and served. Thus, looking only at the state of the operative facts as of the time of removal, jurisdiction for this Court existed. Hence, removal was appropriate pursuant to 28 U.S.C. § 1441(b).

I. Factual Background

Ms. Copley commenced this action on February 13, 2009 in the Philadelphia Court of Common Pleas. See Response, Ex. A (Complaint). On February 17, 2009, she served the Complaint on Schwarz Pharma via United States certified mail. See Response, Ex. B (Plaintiff's Affidavit of Service). Two days after it was properly served with the Complaint, Schwarz Pharma filed a Notice of Removal to this Court asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). The following day, Schwarz Pharma filed a Notice of Removal with the Philadelphia Court of Common Pleas. See Response, Ex. E (Notice of Removal dated 2/20/09).

Ms. Copley did not serve the Complaint on Wyeth Pharmaceuticals, the only defendant in this case that is a citizen of Pennsylvania, until March 5, 2009, which is approximately two weeks after the removal filings by Schwarz Pharma. See Motion at 3, n.2; Response, Ex. F (Montgomery County Sheriff's Department Order for Service).

II. Legal Standard

Under the removal statute, Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable 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.

28 U.S.C. § 1441(b) (emphasis added). This restriction on removal is known as the "forum defendant rule" and provides that "removal is improper if the defendant is a citizen of the state in which the suit is originally filed. Allen v. GlaxoSmithKline PLC, Civ. No. 07-5045, 2008 U.S. Dist. LEXIS 42491, at *4 (E.D. Pa. May 20, 2008) (citing Korea Exchange Bank, New York Branch v. Trackwise Sales Corp., 66 F.3d 46, 48 (3d Cir. 1995)). This limitation exists because "[t]he purpose of diversity jurisdiction is to avoid prejudice against out-of-state defendants." Allen, 2008 U.S. Dist. LEXIS 42491, at *10 (citing McSparan v. Weist, 402 F.2d 867, 876 (3d Cir. 1968)). However, "[t]he removal statutes 'are to be strictly construed against removal and all doubts should be resolved in favor of remand.'" Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (quoting Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)) (additional citations omitted).

III. Discussion

A. Jurisdiction

This Court has "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between...citizens ...


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