93 F. Supp. 3d 544
S.D.W. Va2015Background
- Plaintiff (a Kentucky excavation/construction corporation) sued Daniels Law Firm, PLLC and Norman Daniels, Jr. (both West Virginia citizens) in Kanawha County Circuit Court asserting state-law malpractice/contract claims.
- Defendants removed the case to federal court based solely on diversity jurisdiction before Plaintiff had served them with process.
- Plaintiff moved to remand; Defendants moved to dismiss in federal court. The only contested legal question presented was whether the forum-defendant rule (28 U.S.C. § 1441(b)(2)) bars removal when the resident defendant has not yet been served.
- The parties agreed there was complete diversity and the amount in controversy exceeded $75,000; they also agreed Defendants had not been served pre-removal.
- The district court considered circuit and district court authority split on whether "properly joined and served" requires service to trigger the forum-defendant bar, and evaluated statutory text, legislative purpose, and potential for gamesmanship.
- The court concluded that, although the literal text can be read to permit pre-service removal, that reading frustrates the statutory purpose and produces absurd or inequitable results; it therefore remanded the case to state court and did not reach the motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1441(b)(2) bars removal by a forum (home‑state) defendant who was not yet served at time of removal | "Properly joined and served" requires actual service before removal; pre‑service removal should be barred | The plain statutory language only bars removal of defendants who are both joined and served, so an unserved forum defendant may remove | The court held the forum‑defendant rule bars removal by resident defendants before service in cases involving only forum defendants; remand granted |
Key Cases Cited
- Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (U.S. 1941) (principle that removal statutes are strictly construed and federal courts must limit removal to statutory bounds)
- Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148 (4th Cir. 1994) (burden on party seeking removal to establish federal jurisdiction)
- Dennison v. Carolina Payday Loans, Inc., 549 F.3d 941 (4th Cir. 2008) (federal jurisdiction fixed at time notice of removal is filed)
- Lively v. Wild Oats Mkts., Inc., 456 F.3d 933 (9th Cir. 2006) (discussion of the forum‑defendant rule as limiting removal where defendant is citizen of forum state)
- Goodwin v. Reynolds, 757 F.3d 1216 (11th Cir. 2014) (interpreting "properly joined and served" to prevent plaintiff gamesmanship but addressing pre‑service removal concerns)
- Hillman v. I.R.S., 263 F.3d 338 (4th Cir. 2001) (plain‑meaning rule and narrow exceptions allowing courts to consult legislative history)