Monsanto world headquarters complex in St. Louis, Mo. (Credit: wellesenterprises/iStockphoto.com)
Monsanto Co. met a new batch of personal injury suits related to its Roundup-branded herbicides on Friday with immediate removal from Delaware state court to federal court in Wilmington.
The cases, involving out-of-state plaintiffs who allege their contact with the product made them sick, were all filed this week in Delaware Superior Court, with the bulk coming on between May 4 and May 5.
On May 5, Monsanto removed the cases to the U.S. District Court for the District of Delaware, saying that it had not yet been served in Superior Court and that removal was justified because the forum-defendant rule did not apply.
The move comes after Monsanto unsuccessfully tried to transfer a separate, earlier-filed suit out of Delaware to the U.S. District Court for the Northern District of California, where the agrochemical giant is engaged in multidistrict litigation proceedings with a host of defendants who said Roundup caused a range of illnesses, including cancer.
The abrupt move on Friday surprised Raeann Warner, the Jacobs & Crumplar attorney representing the plaintiffs.
“I’m puzzled,” said Warner, who also represents plaintiffs in all of the cases.
“I’ve never personally actually seen this before.”
However, the maneuver is an increasingly common one, and it exposes an issue that has divided federal judges in the U.S. Court of Appeals for the Third Circuit.
Some plaintiffs’ attorneys have roundly criticized such removals before service as a way to circumvent the forum-defendant rule, which states that a “civil action otherwise removable solely on the basis of diversity of citizenship may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought.”
Attorneys for corporate defendants, on the other hand, have said the move is entirely proper under a strict reading of the statute in cases where there is a diversity of jurisdiction.
In the U.S. District Court of the District of New Jersey, two federal court judges have stated that allowing removal before service would go against the legislative intent behind the statute, which was to prevent improper joinder.
In the District of Delaware, Chief Judge Leonard P. Stark has embraced the position being taken by Monsanto. In the case Hutchins v. Bayer, Stark, then a magistrate judge, looked to the language of the statute, which he said was unambiguous and plainly allowed removal before a defendant is served.
Plaintiffs’ attorneys have also raised concerns about the speed with which complaints are removed from state court dockets.
In a 2013 analysis titled, “Snatch and Remove Before Service: Removal to Federal Court in Forum Defendant Cases,” Weitz & Luxenberg attorneys Ellen Relkin and Brian Hardingham describe a practice whereby defense attorneys electronically monitor state dockets and race to file a removal petition in federal court in the hope the removal will be pending before they can be served.
“Federal district courts are getting barraged with removals, many by pharmaceutical, chemical and other companies who have invested in personnel to monitor state courts’ electronic dockets and immediately flag any cases in which their companies have been named, so a removal can occur before service is even effected,” the authors wrote.
Typically, the removal disputes are left to a district court judge to decide. Plaintiffs may file a motion to remand the case to state court, which are fully briefed before a judge can weigh in.
Warner declined to comment on the speed of removal in her clients’ cases, and she has not yet made a public decision as to whether she would move to send the case back to the Superior Court.
An attorney for Monsanto did not respond Friday to a call seeking comment for this story.