Gray v. Monsanto Company, 4:17-cv-02882

Background

Plaintiff John Gray sued Monsanto in Missouri state court alleging design defect, failure-to-warn, and negligence from exposure to Roundup; Gray is a Tennessee citizen, Monsanto is incorporated in Delaware and has its principal place of business in Missouri.
Monsanto removed the action to federal court on diversity grounds (28 U.S.C. § 1332) 15 days after filing.
Gray moved to remand, arguing the forum-defendant rule (28 U.S.C. § 1441(b)(2)) bars removal because Monsanto is a citizen of the state where the action was filed.
Monsanto opposed remand, arguing the statute’s bar applies only to defendants who have been “properly joined and served,” and it had not been served when it removed the case.
The court reviewed Eighth Circuit and district-court treatments of pre-service removal and the “joined and served” language, noting split approaches (strict textualism vs. exceptions for gamesmanship).
The court found Monsanto’s pre-service removal—Monsanto being the sole, in-state defendant and the only defendant—constituted procedural gamesmanship undermining the purpose of the forum-defendant rule, and granted remand.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether removal is barred by the forum-defendant rule (28 U.S.C. § 1441(b)(2))	Monsanto is a citizen of Missouri; because it is a forum defendant the case must be remanded	The bar applies only to defendants who have been "properly joined and served," and Monsanto was not served before removal	Remand granted: forum-defendant rule bars removal here because Monsanto (the sole defendant) removed pre-service, reflecting gamesmanship
Whether the court should apply the plain text of § 1441(b)(2) strictly in pre-service removal	Gray urges remand consistent with the statute’s purpose to prevent forum shopping	Monsanto urges reading "joined and served" to permit pre-service removal by unserved forum defendants	Court favored purposive reading here—preventing procedural gamesmanship—despite plain-text debate; remand warranted
Effect of Eighth Circuit precedent treating the rule as jurisdictional	Gray relies on Eighth Circuit’s characterization to argue defect cannot be waived	Monsanto argues timing/service distinctions should control removal eligibility	Court treated the forum-defendant rule as jurisdictional and remanded because the facts showed egregious pre-service removal by the forum defendant
Whether defendant’s quick removal forecloses plaintiff’s opportunity to serve and thus triggers remand	Gray contends removal 15 days after filing denied him reasonable time to serve and signals gamesmanship	Monsanto argues prompt removal before service is permissible under some courts’ readings	Court found 15-day pre-service removal by the sole forum defendant indicia of gamesmanship and remanded

Key Cases Cited

In re Prempro Prods. Liab. Litig., 591 F.3d 613 (8th Cir. 2010) (standards for removal and resolving doubts in favor of remand)
Phipps v. FDIC, 417 F.3d 1006 (8th Cir. 2005) (removal requires that the action could have originally been filed in federal court)
Horton v. Conklin, 431 F.3d 602 (8th Cir. 2005) (forum-defendant rule is jurisdictional and not a waivable procedural defect)
Lincoln Property Co. v. Roche, 546 U.S. 81 (Sup. Ct.) (interpretation of removal statutes and limits on removal)
United States v. Union Electric Co., 64 F.3d 1152 (8th Cir. 1995) (plain-language statutory interpretation principles)
OnePoint Solutions, LLC v. Borchert, 486 F.3d 342 (8th Cir. 2007) (complete diversity requirement explained)