Tuesday, January 15, 2013

Removal by a Forum Defendant Prior to Service

Removal by a Forum Defendant Prior to Service

By Amanda K. Anderson, Esquire
Boyle, Gentile, Leonard & Crockett, P.A.

Can a “forum defendant” escape the confines of 28 U.S.C. §1441(b)(2) by removing prior to being served with a pleading? All of the cases addressing removal prior to service involve a non-forum defendant; most courts have held that removal is proper in that instance. But is it the same when a forum defendant seeks to remove prior to being served? I would suggest that it is, however improper or unfair it may seem.
A defendant may remove an action from state court to federal court only when a federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441; Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987).  However, §1441(b)(2) states “a civil action otherwise removable solely on the basis of jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”  28 U.S.C. §1441(b)(2) (emphasis added).  This restriction on the removal of diversity cases is known as the “forum defendant rule.”  See Allen v. GlaxoSmithKline PLC, 2008 WL 2247067, at * 2 (E.D. Pa. May 30, 2008).
Even where there is complete diversity between the parties, then a defendant may not remove a case brought in a state court sitting in the same state in which any properly joined and served defendant is a citizen.  North v. Precision Airmotive Corp., 600 F.Supp.2d 1263, 1267 (M.D. Fla. 2009).  Removal is “intended to protect out-of-state defendants from possible prejudices in state court,” and the purpose of the forum state defendant rule is to allow plaintiffs to choose a forum because a forum state defendant does not need the protection of removal rights.  Valerio ex rel. Valerio v. SmithKline Beecham Corp., 2008 WL 3286976, at *2 (S.D. Fla. Aug. 7, 2008)(citing Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 940 (9th Cir.2006)).
It is well established that for removal to be proper under 28 U.S.C. § 1441, “no defendant can be a citizen of the state in which the action was brought.”  Tillman v. R.J. Reynolds Tobacco, 253 F.3d 1302, 1305 (11th Cir. 2001); see also Armstrong v. JLG Industries, Inc., 2008 WL 4665556 at *2 (M.D. Fla. Oct. 21, 2008); McMahon v. Presidential Airways, Inc., 410 F.Supp.2d 1189, 1194-95 (M.D. Fla. 2006) (recognizing that removal from Florida state court was not proper on the basis of diversity jurisdiction because the defendants were Florida residents).  Only an out-of-state defendant can remove an action to federal court and not, as here, a Florida citizen.  See Bank of New York Mellon Trust Co., N.A. v. Johnson, 2010 WL 5426783, at *3 (N.D. Fla. Nov. 24, 2010). Therefore, “a defendant who is a citizen of the State of Florida cannot remove an action to federal court based upon diversity between the parties.”   Id. (citing Tillman, 253 F.3d at 1305; and McMahon, 410 F.Supp.2d at 1194-95). The court in Johnson held that “[b]ecause Defendants are Florida residents, sued in a Florida state court, they cannot remove this action based upon diversity of citizenship.”
Thus, it would seem as though even a forum defendant can remove as long as they do so prior to the joining of any other forum defendants and prior to service.  

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