Foshee v. Abbott Laboratories
3:22-cv-00627
S.D. Ill.Apr 8, 2022Background
- On March 24, 2022, Tiffany Foshee filed wrongful-death and consumer-fraud claims in St. Clair County, Illinois, over her infant daughter's death.
- Defendants Abbott Laboratories and Abbott Laboratories, Inc. removed the case to federal court on March 25, 2022, invoking diversity jurisdiction.
- Defendants are citizens of Illinois (the forum state); Plaintiff is an Alabama citizen. Removal raised the forum-defendant rule because defendants had been named and served in-state.
- Defendants initially asserted they were not yet served at removal, but then conceded they had been served before the March 25 Notice of Removal and moved to remand.
- Plaintiff agreed remand was appropriate and sought attorneys’ fees under 28 U.S.C. § 1447(c).
- The court remanded the case to state court because the forum-defendant rule barred removal given service before removal, but denied fees because the removal was not objectively unreasonable and defendants promptly corrected the error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of forum-defendant rule (28 U.S.C. § 1441(b)(2)) | Foshee: removal improper because in-forum defendants were served before removal, barring removal. | Abbott: removal valid because defendants were not served before removal (or argued pre-service removal is permitted under some interpretations). | Court: Defendants conceded they were served before removal; forum-defendant rule applies; remand required. |
| Entitlement to fees under 28 U.S.C. § 1447(c) | Foshee: requests fees and costs for improper removal. | Abbott: removal not objectively unreasonable; quickly moved to remand upon realizing error. | Court: Denied fees — removal was not objectively unreasonable given unsettled law and prompt correction. |
Key Cases Cited
- Evers v. Astrue, 536 F.3d 651 (7th Cir. 2008) (federal courts have limited jurisdiction)
- Howell by Goerdt v. Tribune Ent. Co., 106 F.3d 215 (7th Cir. 1997) (complete diversity requirement for federal jurisdiction)
- Hurley v. Motor Coach Indus., Inc., 222 F.3d 377 (7th Cir. 2000) (forum-defendant rule is nonjurisdictional and can be waived)
- Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) (limits awards under § 1447(c) to objectively unreasonable removals)
- Lott v. Pfizer, Inc., 492 F.3d 789 (7th Cir. 2007) (objective-unreasonableness standard in this Circuit for fee awards)
- Morris v. Nuzzo, 718 F.3d 660 (7th Cir. 2013) (removing party bears burden to establish proper removal)
- Knightsbridge Mgmt., Inc. v. Zurich Am. Ins. Co., 518 F. Supp. 3d 1248 (S.D. Ill. 2021) (discusses plain-text approach and pre-service removal under the forum-defendant rule)