Malpractice Removal Before Service of Diversity Defendant

There is an interesting opinion last week in a medical malpractice case involving federal diversity in U.S. District Court in Baltimore.

In Robertson v. Iuliano, Plaintiff filed suit against St. Agnes and another in-state defendant and against a neurologist who lives in Washington, D.C. Diversity shouldn’t have been a problem because there is not complete diversity. But Plaintiff’s courthouse1malpractice lawyer served the out-of-state doctor first which allowed the doctor’s lawyer to remove the case to federal court. The District Court, in an opinion by Judge Richard D. Bennett, denied Plaintiff’s motion to remand the case back to Baltimore City Circuit Court.

The purpose of this rule is to prevent the gamesmanship of plaintiffs’ lawyers who join defendants they never intend to serve to defeat diversity. But the rule creates more gamesmanship by defense lawyers who quickly remove a case that does not belong in federal court just because service is effectuated first on the out-of-state defendant.

The Drug and Device Law Blog has covered this removal issue eight different ways to Sunday (I don’t know what that means and neither does the guy who named his blog after the expression). This is a good explanatory post which includes banter with me and the authors over whether this is a fair rule.

The take home message for malpractice lawyers suing an out-of-state defendant is clear: get service on the in-state defendants first.

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