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DNJ Analyzes Service via Agent and the Forum Defendant Rule in Context of a Snap Removal

A magistrate judge in the District of New Jersey recommended remand of more than one dozen lawsuits concerning allegedly defective hip implants in a June 15, 2020, decision analyzing Third Circuit precedent regarding the forum defendant rule in the context of snap removals.

Jackson v. Howmedica Osteonics Corp., et al., Civil Action No. 19-18667, is one of several cases filed by plaintiffs in New Jersey state court against the defendant Howmedica, which is incorporated and has its principal place of business in New Jersey. Pre-service, the defendant removed to federal court on the basis of diversity pursuant to Encompass Insurance Co. v. Stone Mansion Restaurant, Inc., 2018 WL 3999885 (3d Cir. Aug. 22, 2018), in which the Third Circuit held that a forum defendant may remove a case to federal court prior to being served.

In support of their motion for remand, plaintiffs alleged that certain plaintiffs served the defendant via its registered agent, in addition to attempting to serve the defendant directly at its New Jersey corporate headquarters, but the defendant “deliberately delayed accepting [this latter form of] service until the process of removal had been completed.” Plaintiffs argued that because the defendant was properly served via its registered agent prior to removal, the removal was barred by the forum defendant rule. See 28 U.S.C. 1441(b) (allowing removal regardless of in-state citizenship where the in-state defendant has not yet been properly joined and served in a case).

Relying on Tucci v. Hartford Fin. Servs. Grp., 600 F. Supp. 2d 630, 631 (D.N.J. 2009), the defendant argued that the service via its registered agent did not prevent removal because the defendant was not properly joined and served until it actually received a copy of the summons and complaint. The Tucci court found service was completed only after the defendant actually received notice of it.

U.S. Magistrate Judge James Clark’s report and recommendation analyzed “whether Defendant’s removal of this matter was improper under the forum defendant rule.” The court held that the defendant’s position that “service was not complete for the purposes of the forum defendant rule until Defendant actually received notice of such service from its registered agent” lacked support in the law. Judge Clark held that the “exception to the applicability of the forum defendant rule exists, or should exist, where process is served only via service on a defendant’s agent.” Because the plaintiffs also sought to directly serve the defendant here, the exception did not apply.

Finding that no exception applied, the court next analyzed whether the defendant’s removal was prohibited by the forum defendant rule. The defendant argued that New Jersey law recognizes a “legal ‘separation’ between defendants and agents” in support of its position that removal was proper. Although the court agreed that such a distinction exists, it declined to extend Tucci, holding that “New Jersey law is clear that a corporation is properly served with process via service on its appointed agent.” Accordingly, the court held that the defendant’s removal was precluded by the forum defendant rule, and granted the plaintiff’s motion for remand.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 171



About this Author

Kaitlyn E. Stone, litigation attorney, Drinker Biddle

Kaitlyn E. Stone represents major pharmaceutical companies in products liability cases involving prescription medications in individual cases, class actions, multidistrict litigation, and coordinated state proceedings. Kate also demonstrates an unwavering commitment to serving her community by maintaining an active pro bono practice focused primarily on securing the expungement of clients’ records so as to enable clients to obtain improved employment and a higher quality of life for themselves and their families.

Prior to joining Drinker Biddle,...

(973) 549-7014
Jessica L. Brennan Product Liability Litigation Attorney Faegre Drinker Biddle & Reath Florham Park, NJ

Jessica Brennan represents manufacturers of prescription pharmaceuticals, medical devices and consumer goods in individual cases, class actions, multidistrict litigation and coordinated state proceedings. A skilled litigator, Jessica has served on national coordinating counsel teams in roles including trial, brief writing, witness preparation, and coordinating electronic document review and production.

Products Liability, Mass Tort, and Multidistrict Litigation

Jessica has extensive trial and litigation experience defending major pharmaceutical, medical device and consumer goods companies. She handles strict product liability, negligence, breach of warranty and wrongful death actions involving prescription medications, over-the-counter products, orthopedic implants and other products before state and federal courts and in mass tort and multidistrict proceedings.

In cross-jurisdictional mass tort litigations, Jessica has served as national and local counsel. She often represents multinational clients and has a deep understanding of the challenges of coordinating United States and foreign litigations and related e-discovery issues.

Prior to joining the firm, Jessica worked on a variety of litigation matters representing domestic and foreign manufacturers of pharmaceuticals, medical devices, automobiles, recreational products and industrial equipment.