Relying on congressional intent to avoid an absurd result from the literal reading of a statute, a federal judge remanded a case to state court in a decision that magnifies a division in the Eastern District of Pennsylvania over the "forum defendant rule."
That rule, which bars the removal of cases to federal court if one of the defendants is a citizen of the state in which the suit is filed, was passed by Congress in order to discourage the use of diversity jurisdiction when suits could be fairly handled in state courts, according to the opinion from U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania.
To clarify that the defendant must be "legitimate" rather than one added by plaintiffs simply to defeat diversity jurisdiction, Congress later added the phrase "properly joined and served" to the rule.
In this case, CSX Corp. — the out-of-state defendant — argued that it filed for removal to federal court before Conrail — the in-state defendant — had been properly joined and served, meaning federal venue would still be proper.
Baylson held that, while CSX might be right in its literal interpretation of the statute, that would be an absurd conclusion that would be at odds with congressional intent. He remanded the case back to the Philadelphia Court of Common Pleas and denied the defendants’ request for a stay on mailing the remand order, which the rail companies had sought so that the U.S. Court of Appeals for the Third Circuit could maintain jurisdiction long enough to resolve the split in the district.
"Since Congress intended the removal statute to ‘abridge the right of removal’ … it would be absurd to read the statute as encouraging unserved non-forum defendants to ‘race to remove’ before plaintiffs have the practical ability to effectuate service," Baylson said, quoting a 1951 U.S. Supreme Court opinion in American Fire & Casualty v. Finn.
Other judges in the Eastern District of Pennsylvania have held differently from Baylson.
Baylson cited the reasoning of U.S. District Judge Cynthia M. Rufe when she looked beyond the plain meaning of the statute in a 2009 opinion in In re Avandia Marketing, Sales Practices and Products Liability Litigation.
The matter before Baylson, Swindell-Filiaggi v. CSX & Conrail, stems from a November 30, 2012, accident in which a Conrail train spilled vinyl chloride monomer, a human carcinogen, when a CSX bridge collapsed under its weight, according to the opinion.
"Congressional intent would be significantly frustrated if unserved non-forum defendants can remove cases simply because they have the technical wherewithal to file for removal before the plaintiff can effectuate service," Baylson said.
He cited one of his own opinions, from 2008 in Allen v. GlaxoSmithKline, saying, "It is ‘especially absurd’ to interpret the ‘joined and served’ rule as allowing naked gamesmanship by defendants since Congress intended for the rule to prevent gamesmanship."
Baylson rejected the defendants’ argument that Congress endorsed their interpretation of the statute since it has declined to amend the language. Rather, the clear intent of the statute is to limit the right of removal, Baylson held.
Beyond the larger issue of interpreting the meaning and intent of the statute, Baylson addressed the issue of timing specific to this case. Since Conrail was served on the same day that CSX filed for removal to federal court, it is unclear whether or not the statute, read strictly, would support the defendants’ position.
"Although defendants insist that the court must focus on the circumstances that were present at the precise time of removal (versus the date of removal), the plain meaning of the statute does not dictate this result," Baylson said.
He issued an alternative holding that buttressed his first, deciding that the plain meaning of the rule dictates that the date is determinative, not the exact time.
David M. Cedar of the Cedar Law Firm in Cherry Hill, N.J., represented the plaintiffs and said that he plans to file another 500 to 550 cases in addition to the 54 already filed in the Philadelphia Court of Common Pleas. He also noted that there are cases pending in the U.S. District Court of the District of New Jersey. There are a "ton of cases on both sides of the water now," Cedar said, and they’ll proceed simultaneously.
Evan Tager of Mayer Brown in Washington, D.C., was on the team defending CSX and declined to comment.
(Copies of the 14-page opinion in Swindell-Filiaggi v. CSX & Conrail, PICS No. 13-0364, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •