City of Martinsville, Virginia v. Express Scripts, Inc.; Optumrx, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-1912
CITY OF MARTINSVILLE, VIRGINIA,
Plaintiff – Appellee,
v.
EXPRESS SCRIPTS, INC.; OPTUMRX, INC.,
Defendants – Appellants,
and
PURDUE PHARMA, L.P.; PURDUE PHARMA, INC.; THE PURDUE
FREDERICK COMPANY, INC.; RHODES PHARMACEUTICALS, L.P.; ENDO
HEALTH SOLUTIONS, INC.; ENDO PHARMACEUTICALS, INC.; PAR
PHARMACEUTICAL COMPANIES, INC.; PAR PHARMACEUTICAL, INC.;
INSYS THERAPEUTICS, INC.; KVK-TECH, INC.; IMPAX LABORATORIES,
LLC.; AMNEAL PHARMACEUTICALS, INC.; AMNEAL
PHARMACEUTICALS OF NEW YORK, LLC; MYLAN
PHARMACEUTICALS, INC.; HENRY SCHEIN, INC.; GENERAL
INJECTABLES & VACCINES, INC.; INSOURCE, INC.; EXPRESS SCRIPTS
HOLDING COMPANY; UNITEDHEALTH GROUP INCORPORATED; OPTUM,
INC.; DOES 1-100,
Defendants.
Appeal from the United States District Court for the Western District of Virginia, at
Danville. Elizabeth K. Dillon, Chief District Judge. (4:24-cv-00002-EKD)
Submitted: March 17, 2025 Decided: April 8, 2025

-- 1 of 4 --

2
Before WYNN, RICHARDSON, and HEYTENS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Jonathan G. Cooper, Michael J. Lyle, Eric C. Lyttle, Christopher G. Michel,
Matthew K. Wasserman, QUINN EMANUEL URQUHART & SULLIVAN, LLP,
Washington, D.C.; Emily M. Scott, HIRSCHLER FLEISCHER, PC, Richmond, Virginia,
for Appellant Express Scripts, Inc. Brian D. Boone, Charlotte, North Carolina, Matthew P.
McGuire, ALSTON & BIRD, LLP, Raleigh, North Carolina; Turner A. Broughton,
WILLIAMS MULLEN, Richmond, Virginia, for Appellant OptumRx, Inc. Joanne Cicala,
R. Johan Conrod, Josh Wackerly, Shelbi Flood, THE CICALA LAW FIRM PLLC,
Dripping Springs, Texas; W. Edgar Spivey, Patrick H. O’Donnell, KAUFMAN
CANOLES, PC, Norfolk, Virginia; Grant Morris, Kevin Sharp, Jonathan Tepe, Brent
Hannafan, Kasi Wautlet, Nashville, Tennessee, Kaitlin Leary, James Hannaway,
SANFORD HEISLER SHARP LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 2 of 4 --

3
PER CURIAM:
The City of Martinsville sued several pharmaceutical companies in state court “to
recover damages and costs it has incurred as a result of the prescription drug abuse
problem” within its borders. JA 54. After years in state court, two defendants removed the
case to federal court under the federal officer removal statute.
The city moved to remand the case to state court, and the district court granted that
motion on two alternative grounds. First, the court concluded the removal had been
untimely under 28 U.S.C. § 1446(d). Second, “[a]s a separate and independent ground for
remand,” the district court found the removing defendants “waived any right to removal on
federal officer grounds.” JA 2466. We have jurisdiction to review the district court’s
remand order under 28 U.S.C. § 1447(d), and we affirm based solely on the district court’s
waiver finding. We thus do not consider whether the removal was timely under 28 U.S.C.
§ 1446(d).
“[A] party may waive its right to removal by demonstrating a clear and unequivocal
intent to remain in state court” after the case becomes removable. Northrop Grumman Tech.
Servs., Inc. v. DynCorp Int’l LLC, 865 F.3d 181, 186 (4th Cir. 2017) (quotation marks
removed). A district court’s conclusion “that a party has waived its right to removal” is a
“factual finding” that we review only “for clear error.” Id.
We see no clear error here. The district court determined that, even after “the right
to remove was clear,” the removing defendants “took affirmative action to continue to
litigate in state court,” including entering a joint stipulation, participating in discovery, and
requesting a hearing on their demurrers. JA 2468. The removing defendants contend that

-- 3 of 4 --

4
Congress’s revision of the removal statutes in the 1940s requires that “the judge-made
waiver doctrine” be “cabined to extreme situations” that are not present in this case. Defs.
Br. 34 (quotation marks removed). But this Court has recognized the validity of waiver by
conduct in published opinions, and we as a panel lack the power to depart from it. The
removing defendants further insist they did not take any “substantial defensive action” that
would have warranted a waiver finding here. Id. at 37 (quoting Northrop Grumman, 865
F.3d at 186). Having reviewed the record and the parties’ arguments, we are not “left with
the definite and firm conviction that a mistake has been committed.” United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948). For that reason, we cannot say the district
court’s waiver finding was clearly erroneous.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before us and argument would not aid the decisional
process. The district court’s remand order is
AFFIRMED.

-- 4 of 4 --