Avandia judge: GSK removal to federal court premature, sends suits back to Phila. Common Pleas Court

By Jon Campisi | Apr 30, 2013

U.S. District Judge Cynthia Rufe, of the Eastern District of Pennsylvania, recently granted

a motion by two health insurers to remand their respective Avandia drug cases to the Philadelphia Court of Common Pleas.

The decision by Rufe doesn’t mean the lawsuits won’t ever end up being removed to the federal courthouse, where an ongoing Avandia Multidistrict litigation has been consolidated, but due to a technicality, the complaints are headed back to the civil justice division at Philadelphia City Hall.

The two plaintiffs in the case, UnitedHealth Group Inc. and Humana Health Plan Inc., sought remand because the cases were commenced by the filing of a praecipe to issue writ of summons for the purpose of taking pre-complaint interrogatories.

Essentially, a praecipe to issue write of summons is a pre-litigation maneuver that signals pending litigation.

A writ itself, however, is not an actual complaint, and in her memorandum and order, which was dated April 17, Rufe sided with the two health insurers in deciding that removal to the federal court of the two lawsuits was premature.

The record shows that in their respective pre-complaint interrogatories, the two health insurance companies stated, “in nearly identical language,” their intentions to sue GlaxoSmithKline and other drug companies seeking declaratory judgment pertaining to the plaintiffs’ subrogation and reimbursement rights; recovery from GSK in subrogation of their expenses of treating the adverse health outcomes its members experienced associated with Avandia; and reimbursement from their health plan members who were Avandia or Paxil claimants and had settled their claims.

UnitedHealth also stated that it intended to sue on behalf of itself and other similarly situated health plans, according to Rufe’s memorandum.

GlaxoSmithKline, however, removed the cases to the federal venue, arguing that the interrogatories made clear that the claims to be asserted are within the purview of the federal court system pursuant to the Employee Retirement Income Security Act, the memorandum states.

The two plaintiffs, however, maintained that because no actual complaints had been filed, the defendants’ removal was premature under the Federal Rules of Civil Procedure.

Citing Third Circuit precedence, Rufe agreed, writing that a mere summons cannot serve as an “initial pleading” for the purposes of triggering the clock for removal to federal court.

“The [Third Circuit] ruling has been interpreted in this District to mean that ‘removal is not proper until a complaint has been served on the defendants,” Rufe wrote. “Accordingly, because Plaintiffs here have not served a complaint, Defendants’ notice of removal was not too late, it was too early.”

Rufe went on to write that while the court “appreciates that it appears likely that once complaints have been filed the state court actions will be removable on the basis of federal question jurisdiction,” the actual complaint itself is the “operative document” for removal to federal court, and until a complaint has been filed in state court, any removal is premature.

In her memorandum and order, Rufe simultaneously denied UnitedHealth’s motion for counsel fees, writing that under the circumstances of these cases, including the likelihood of eventual federal jurisdiction, “the Court finds that GSK had a colorable basis for its actions and that an award of costs and fees is not warranted.”

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