Monsanto Co. is seeking a pause in Delaware litigation involving its Roundup brand herbicides, saying that a California judge should decide whether the company’s quick removal of personal injury suits from state to federal court circumvented a statute that protects plaintiffs’ choice of forum.
The St. Louis-based agrochemical company on June 14 asked U.S. District Judge Richard G. Andrews of the District of Delaware to grant a temporary stay in two cases brought by plaintiffs who claimed that contact with Roundup had caused them to develop cancer. The stay, Monsanto said, would allow the Judicial Panel on Multidistrict Litigation to determine whether the Delaware cases should be included with a slew of similar cases in multidistrict litigation that has been consolidated in U.S. District Court for the District of Northern California.
But it would also kick to the MDL court a key question of statutory interpretation regarding the forum-defendant rule that has vexed judges across the country and created a split on Delaware’s federal bench.
The plaintiffs, Larry Curts and Donald Zilmer, have been trying to have their cases remanded to Delaware Superior Court ever since Monsanto abruptly removed them to the federal system in June, before the company could be served with the complaints.
Raeann Warner, a Jacobs & Crumplar attorney representing the two men, has told Andrews that Monsanto’s pre-service removal side-stepped the forum-defendant rule, which bars removal on the basis of diversity jurisdiction when a defendant is “properly joined and served.”
Monsanto, like other corporate defendants, has favored a strict interpretation of the statute, arguing that removal is proper as long as the company has not be served.
The U.S. Court of Appeals for the Third Circuit has yet to weigh in on the issue, and with no national consensus on how to interpret the law, the question should be left to U.S. District Judge Vince Chhabria in the Northern District of California, Monsanto said.
“The MDL court—not federal district court judges all over the country who have reached inconsistent rulings regarding the forum-defendant rule—should decide remand motions involving that rule, if the JPML decides to transfer cases in these circumstances,” Kelly E. Farnan, of Richards, Layton & Finger, wrote July 14 on behalf of the agrochemical giant.
“A brief stay is also proper here because it will enable this court to conserve its resources by deferring any further proceedings until the JPML has decided whether to transfer this case to the MDL court.”
In Delaware, Chief Judge Leonard P. Stark last month upheld the pre-service removal of 33 personal injury cases against Bristol-Myers Squibb Co. and Pfizer Inc., citing the “unambiguous” language of the statute.
However, Andrews—who is overseeing the Roundup cases—has taken the opposite stance, ruling in the 2013 case Stefan v. Bristol-Myers Squibb that the “properly joined and served” language is meant to prevent plaintiffs from defeating removal by joining a forum defendant whom they do not intend to serve.
“Here, construing the language of the statute as defendants propose would eviscerate the forum-defendant rule and lead to the very gamesmanship the rule was intended to prevent,” he said, adding that a strict reading would produce a “nonsensical” result that would “indisputably be at odds with the congressional intent in enacting the forum-defendant rule.”
Monsanto, in its briefing, called on Andrews to revisit his decision in Stefan in light of Third Circuit and U.S. Supreme Court precedent governing the rules of statutory construction.
Neither Farnan nor Warner were immediately available July 13 to comment.
The cases are captioned Curts v. Monsanto and Zilmer v. Monsanto.