Gibbons v. Bristol-Myers Squibb Co.
919 F.3d 699 (2019)
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Rule of Law:
The forum defendant rule, under 28 U.S.C. § 1441(b)(2), does not prevent a defendant from removing a diversity jurisdiction case from state to federal court, even when sued in its home state, provided the removal occurs before that defendant has been 'properly joined and served' with process.
Facts:
- Bristol-Myers Squibb Co. ('BMS') and Pfizer Inc. manufacture and distribute Eliquis, a blood-thinning medication approved by the FDA in 2012.
- The Eliquis drug label includes warnings about the risk of serious and possibly fatal bleeding events.
- Plaintiffs are individuals, or the estates of deceased individuals, who were prescribed and took Eliquis to reduce their risk of stroke.
- After taking Eliquis, these individuals suffered from excessive bleeding events that resulted in substantial physical and financial injury or death.
- Plaintiffs alleged their injuries were caused by the drug's improper design and insufficient warning labels.
- BMS and Pfizer are both incorporated in Delaware, making it their home state for purposes of litigation.
- Plaintiffs filed a series of new product liability lawsuits against BMS and Pfizer in Delaware state court.
Procedural Posture:
- Plaintiffs filed product liability lawsuits against Bristol-Myers Squibb Co. and Pfizer Inc. in Delaware state court.
- Before being served with process, Defendants removed the cases to the U.S. District Court for the District of Delaware, asserting diversity jurisdiction.
- The cases were transferred to the U.S. District Court for the Southern District of New York and consolidated into a multi-district litigation (MDL).
- Plaintiffs filed motions to remand the cases back to Delaware state court, arguing removal was improper under the forum defendant rule.
- The district court denied the Plaintiffs' motions to remand.
- The district court subsequently granted Defendants' motion to dismiss the complaints, finding the state law failure-to-warn claims were preempted by the federal Food, Drug, and Cosmetics Act (FDCA).
- Plaintiffs, as appellants, appealed both the denial of the remand motions and the dismissal of their cases to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does the forum defendant rule of 28 U.S.C. § 1441(b)(2) prevent removal of a diversity action by a defendant sued in its home state if the defendant removes the case before it has been formally served with process?
Opinions:
Majority - Richard J. Sullivan, Circuit Judge
No. The forum defendant rule under 28 U.S.C. § 1441(b)(2) is inapplicable until a home-state defendant has been properly served with process. The court's reasoning is based on a plain reading of the statute's text, which explicitly limits the rule's application to defendants who have been 'properly joined and served.' The court rejected the plaintiffs' argument that this interpretation leads to an absurd result, finding that while it may seem anomalous, it is not an outcome Congress could not have intended. Congress may have included the 'served' language to create a bright-line rule that is easier to administer than an inquiry into a plaintiff's intent. The court also affirmed the dismissal of the underlying failure-to-warn claims on preemption grounds, holding that the plaintiffs failed to plausibly allege the existence of 'newly acquired information' that would have permitted the defendants to unilaterally strengthen the drug's warning label under the FDA's 'changes being effected' regulation.
Analysis:
This decision solidifies the Second Circuit's acceptance of 'snap removal,' a procedural tactic where a defendant removes a case to federal court before the plaintiff can execute service of process. By joining the Third Circuit, this ruling deepens a circuit split and provides a significant strategic advantage to sophisticated corporate defendants who can monitor dockets and act instantly upon a new filing. The court's strict textualist interpretation of § 1441(b)(2) prioritizes the plain language of the statute over purposive arguments about congressional intent to limit diversity jurisdiction. This outcome may prompt legislative action from Congress if it wishes to close what many view as a statutory loophole.
