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The U.S. District Court for the District of Delaware denied plaintiffs’ Motion for Remand in Higgins et al. v. Novartis Pharms. Corp. et al., No. CV 25-247 (MN), 2025 WL 1397045 (D. Del. May 14, 2025). The court agreed with Hollingsworth LLP that the removal statute permits a forum defendant to remove before service of a complaint—regardless of a state’s unique service rules.

On February 28, 2025, plaintiffs filed their complaint in the Superior Court of Delaware against Novartis Pharmaceuticals Corporation. Delaware Rules of Civil Procedure provide that a plaintiff must wait for the Superior Court Prothonotary to issue a summons directing the sheriff, or a person specially appointed by the Court, to serve the defendant. Pursuant to the plain language of the removal statute, Hollingsworth LLP immediately removed this action to the District Court of Delaware before the Prothonotary could issue the summons. Plaintiffs moved for remand, arguing that permitting a forum defendant to remove to federal court would yield an unreasonable result given Delaware’s unique service rules and that Third Circuit precedent from Pennsylvania did not apply because the two states’ service rules markedly differ. Plaintiffs also argued that the Third Circuit did not account for how technological advancements in electronic docket monitoring allegedly give defendants an unprecedented advantage to accomplish pre-service removals.

The court held that the plain language of the removal statute protects a forum defendant’s right to remove regardless of a state’s unique service requirements, consistent with Third Circuit precedent. The court rejected plaintiffs’ policy arguments to disregard both the removal statute’s terms and the Third Circuit’s decision based on purported technological advancements, noting that courts must apply the clear statutory text which ensures a forum defendant’s removal rights. This is the first electronically published District of Delaware decision to apply the Third Circuit’s decision to deny remand and allow pre-service removal under the forum defendant rule prior to the issuance of a summons by a Delaware Prothonotary.