[Drug and Device Law] If at First You Don't Remove, Try, Try Again
Removing a case to federal court can be a tedious process. There are lots of deadlines and notices that need to be sent to different places. But sometimes the process can be more than tedious. It can be long. And when it gets long, the plaintiff won’t help. He’ll resist.
When that happens, you have to stick to it and be the little remover that could.
In Jackson v. St. Jude Medical Neuromodulation Div., 2015 U.S. Dist. LEXIS 975 (M.D. Fla. Jan. 28, 2015), St. Jude, one of three defendants, removed the case to federal court based on diversity jurisdiction. But a few months later the federal court remanded the case back to state court because St. Jude couldn’t establish that the amount in controversy for each defendant exceeded the jurisdictional baseline of $75,000.
But – and this is key – St. Judge didn’t give up. It knew that plaintiff was seeking more than $75,000. So it asked. When the case was returned to state court, St. Jude served a request that plaintiff admit that the amount in controversy exceeded $75,000 as to each defendant. Id. at *5. Co-defendant Medtronic did the same. Id. There was a timing issue, though. The federal rules gave plaintiff 30 days to respond to the request. Yet in fewer than 30 days the one-year, final deadline for a defendant to remove a case to federal court based on diversity would pass. 28 U.S.C. 1446(c)(1).
The plaintiff knew this. So he resisted. He refused to agree to a shortened deadline to respond to the request for admission. Instead, he moved for a protective order and to strike the request. So St. Jude and Medtronic doubled down. They moved to expedite plaintiff’s response. Id. And they won. The court ordered plaintiffs to respond to the request for admission ten days before the one-year removal period would run out. Id.
So that should be that, right? Well, no. The plaintiff still resisted. He served a response, but in it he “only admitted that the amounts in controversy exceeded $15,000.” That response seemed designed to deprive defendants of the information they needed to remove the case. So St. Jude kept pressing. It filed an “Emergency Motion to Compel Better Answers to Requests for Admission. Id. at *5-6. Who knew that was even a thing? But it worked.
The court held a hearing two days before the removal deadline, and at that hearing the court ordered plaintiff to respond – properly – by 2:00 p.m. that day or face sanctions. Id. at *6. Plaintiff did and was forced to admit that the amount in controversy for each defendant exceeded $75,000. Id. With this admission, St. Jude removed the case to federal court, beating the one-year deadline. Id.
Plaintiff still wasn’t finished resisting. It came up with a new argument: St. Jude waived its right to remove the case to federal court because it had actively litigated the case in state court. What was St. Jude’s active litigation? While the case was still in state court, St. Jude responded to the complaint by filing a motion to dismiss. This exception to removal is intended to prevent defendants from removing a case to federal court solely because it is dissatisfied with the way the case was proceeding in state court.
But the federal court understood that this case was not such a case. St. Judge filed its motion to dismiss simply because it was required to respond under the state court’s rules. Id. at *10. It was clear to anyone who was paying even the slightest attention to the case, however, that St. Jude’s efforts in state court were aimed at getting the case removed, not litigating its merits:
St. Jude did not evidence a willingness to litigate in the State Court before moving for removal. St. Jude had until December 13, 2014, to remove this action. Given this approaching deadline, St. Jude underwent extensive efforts to obtain discovery from Plaintiff in order to establish the requisite amounts in controversy and, in turn, to effect removal without delay. The impending one-year statutory removal deadline and St. Jude's desire to exercise its right to removal fueled its actions in State Court.
Id. at *9.
The court properly denied plaintiff’s motion to remand. And now the case is in federal court.
Given the plaintiff’s maneuvering in state court, we think there was a chance that the court would have allowed St. Jude to remove the case even after the one-year deadline if it were forced to do so. The one-year deadline is based on the plaintiff acting in good faith. But it’s a different story if the plaintiff acts in bad faith:
A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.
28 U.S.C. 1446(c)(1) (emphasis added).
Plaintiff’s attempt to delay his response to the request for admission and his incomplete response once the court ordered him to respond could have been viewed by the court as a bad faith attempt to prevent removal. We’ll never know for certain. But one thing we do know is that St. Jude’s and Medtronic’s relentless efforts to force plaintiff to admit that he was seeking more than $75,000 in damages made all the difference. There’s a lesson in there: keep trying.
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Posted By John J. Sullivan to Drug and Device Law at 2/23/2015 08:30:00 AM --
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