This week, CCL filed a response in opposition to Wyeth LLC, Wyeth-Ayerst International Inc. & Wyeth Pharmaceuticals Inc.’s Motion for Summary Affirmance in a Third Circuit appeal that involves the important and recurring problem some have called “snatch and remove.” In the case, Wyeth LLC, the only non-forum defendant sued in Pennsylvania state court on state law claims, filed a notice of removal the day after CCL’s clients filed their complaint. At the time the notice of removal was filed, no defendant, including the two properly joined in-state defendants, had been served. Many other judges have remanded such cases to state court, seeing the removal before service as gamesmanship meant to make an end run around the “forum defendant rule” in 28 U.S.C. § 1441(b)(2), which was intended to limit removal of cases in which a defendant is sued in its home state. The district court judge in this case denied the plaintiffs’ motion to remand, adopting a broad, literal interpretation of the “plain language” of a portion of 28 U.S.C. § 1441(b)(2), and holding that removal was proper because the forum defendants were not “properly joined and served” at the time of removal.

Although this case presents an important issue of first impression, the defendants argued that the U.S. Court of Appeals for the Third Circuit need not address the propriety of removal, even though the plaintiffs preserved the issue for appeal, and could not immediately appeal the district court’s decision on their motion to remand. The defendants argued that the court should decline to review this substantial issue, and summarily affirm the merits of the district court’s decision granting summary judgment on the merits of the plaintiffs’ claims to the defendants. CCL’s Valerie M. Nannery and Jeffrey R. White filed a response in opposition today arguing that the court of appeals has an obligation to address the legal issues that were preserved for appeal, and that failure to do so will leave the lower courts in disarray, with no guidance from the court of appeals. CCL maintained that summary affirmance is inappropriate in this case because the issues on appeal raise substantial questions on which there is no binding authority from the Supreme Court or the Third Circuit.