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In Re: Yasmin and Yaz (Drospirenone) Marketing, Sales v. Bayer Healthcare Pharmaceuticals

July 18, 2012

IN RE: YASMIN AND YAZ (DROSPIRENONE) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION
THIS DOCUMENT RELATES TO: PHIL GALLO AND RANDI DAUGHERTY, AS PARENTS AND GUARDIANS OF MACHALA L. GALLO AND IN THEIR OWN RIGHT,
v.
BAYER HEALTHCARE PHARMACEUTICALS, INC.



The opinion of the court was delivered by: Herndon, Chief Judge

ORDER DENYING PLAINTIFFS' MOTION FOR REMAND

I. INTRODUCTION

This case was initially filed with the Court of Common Pleas of Lawrence County, Pennsylvania after the plaintiffs'*fn1 daughter allegedly suffered severe and permanent injuries due to her use of YAZ. The defendant, Bayer Healthcare Pharmaceuticals, Inc. ("Bayer") removed the matter to federal court on the basis of diversity jurisdiction. The plaintiffs contend that removal was untimely and are seeking remand to state court. The question before the Court is whether service of a writ of summons, standing alone, triggers the 30 day removal period under 28 U.S.C. § 1446(b).

II. BACKGROUND

On January 7, 2011, the plaintiffs commenced this action by serving Bayer with a writ of summons.*fn2 As required under Pennsylvania law, the summons included the plaintiffs' names, Bayer's name, the date, and notice that an action had been commenced against Bayer in Lawrence County Pennsylvania. The summons did not include, and under Pennsylvania law was not required to include,*fn3 any information regarding the nature of the suit, the amount in controversy, or the citizenship of the parties. Although the writ of summons was served in January 2011, the complaint was not filed until November 3, 2011. Bayer received service of the complaint on November 7, 2011. On November 28, 2011, 21 days after the complaint was served and 25 days after it was filed, Bayer filed a notice of removal in the United States District Court for the Western District of Pennsylvania. The plaintiffs then filed various motions and objections in the Western District of Pennsylvania arguing that removal was untimely because the 30 day time period for removal was triggered in January 2011 when Bayer received the writ of summons. Subsequently, the Judicial Panel for Multidistrict Litigation transferred the plaintiffs' action to this MDL.*fn4 The plaintiffs' motion to remand was still pending at the time of transfer. Nonetheless, the plaintiffs filed a second motion to remand after the action was transferred to this Court.

III. The Issue in Dispute

The parties do not dispute that there is complete diversity between the plaintiffs, who are citizens of Pennsylvania, and Bayer, who is a citizen of Delaware and New Jersey. The only disputed issue is whether Bayer's removal was timely.

28 U.S.C. § 1446(b) governs the timeliness of Bayer's removal. Section 1446(b) provides as follows:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b). Accordingly, the timeliness of removal depends on the defendant's "receipt" of the "initial pleading."

In the instant case, the plaintiffs argue that "receipt" of the "initial pleading" occurred in January 2011, when the writ of summons was served. Bayer contends that where, as here, a defendant is served with the summons but the complaint is filed or served at a later date, "receipt" of the "initial pleading" refers to the defendant's receipt of the complaint.

Accordingly, the issue before the Court is whether service of a writ of summons, standing alone, constitutes "receipt" of an "initial pleading" within the meaning of Section 1446(b). If it does, the 30 day removal period was triggered in January 2011 and Bayer's removal was untimely. On the other hand, if the period for removal under Section 1446(b) runs from Bayer's receipt of the complaint, removal was timely because it was filed on November 28, 2011, 21 days after the complaint was served and 25 days after it was filed.

IV. ANALYSIS

In Murphy Brothers v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed. 2d 448 (1999), the United States Supreme Court evaluated the 30 day removal period established in Section 1446(b). The issue before the Supreme Court was "whether the named defendant must be officially summoned to appear in the action before the time to remove begins to run. Or, may the 30 day period start earlier, on the named defendant's receipt, before service of official process, of a 'courtesy copy' of the filed complaint faxed by counsel for plaintiff?"

Murphy Brothers, 526 U.S. 344 at 347. The Supreme Court concluded that a defendant's time to remove "is triggered by simultaneous service of summons and complaint, or receipt of the complaint 'through service or otherwise,' after and apart from service of the summons, but not by ...


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