Case Information
*1 Before LOKEN, Chief Judge, LAY, and BENTON, Circuit Judges.
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LAY, Circuit Judge.
Steven Waugh appeals the decision of the district court [1] rеmanding this case to state court for lack of federal subject matter jurisdiction and denying Waugh’s motion to dismiss other defendants. We affirm.
I.
Thomas Horton, a citizen of Maine, brought a petition to construe a trust in thе circuit court of Grundy County, Missouri. Horton named twelve defendants. Three of the named defendants reside in Missouri and were served in Missouri. The other nine defendants reside in other states. The trust in question was created by а married couple, as co-trustees, to dispose of their assets upon their deaths. Horton and eleven of the twelve defendants are beneficiaries of the trust. [2] Horton brought a petition to construe the trust because the co-trustees had altered the trust a number of times, creating uncertainty regarding how the trust should be administered.
Horton brought his petition to construe the trust on September 24, 2004. Waugh, a citizen оf Arizona, timely filed a Notice of Removal based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(i). He did not join any other defendants in his motion. On November 17, 2004, a federal district court judge issued an order expressing conсern that the court “may not have jurisdiction to hear this case.” The judge noted that three of the named defendants appeared to be citizens of Missouri and stated that if any defendants had been served in state court proceedings, removal would be improper due to lack of jurisdiction. The order directed Horton to file a *3 brief “addressing whether any Missouri citizen defendants have been served in the undеrlying state cause of action.”
On November 22, 2004, Horton filed a brief in reply to the district court’s order stating that three of the defendants had been served in Missouri. Horton did not, however, file a motion to remand. On Deсember 2, 2004, Waugh filed a reply brief in which he asserted that the other defendants were not required to join in removal because they had not responded to the complaint and were therefore nominаl defendants. Waugh also filed a motion requesting that the federal district court dismiss all defendants that had not filed answers, arguing that these defendants were in default and should be dismissed.
The district court denied Waugh’s motion to dismiss thе other defendants and remanded the case to Missouri state courts due to a lack of complete diversity.
II.
We first note that Waugh’s motion to remove was apparently defective from the outsеt due to his failure to join all defendants as required by our court’s interpretation of 28 U.S.C. § 1446. See Marano Enters. of Kansas v. Z-Teca Rests., L.P., 254 F.3d 753, 755 n.2 (8th Cir. 2001) (“Under the rule of unanimity, ordinarily all defendants must join in a notice of removal or the case will be remanded.”). Although Waugh’s failure to join the other defendants appears to be dispositive, we nonetheless consider the merits of his argument that, because Horton did not bring a motion to remand within thirty days of Waugh’s motion to remove, he waived his right to have the case remanded to state court.
We must first determine whether our court has jurisdiction to review the district
court’s remand order. Under the so-cаlled “forum defendant rule,” a non-federal
question case “shall be removable only if none of the parties in interest properly
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joined and served as defendants is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b). Congress has limited the power of appellate courts
to review remands by district courts, stating that “[a]n order remanding a case to the
State court from which it was removed is not reviewable оn appeal or otherwise . . . .”
28 U.S.C. § 1447(d). In Things Remembered, Inc. v. Petrarca,
A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.
Accordingly, our court lacks jurisdiction to review remand orders that are based on
procedural dеfects brought within thirty days or jurisdictional defects raised at any
time before final judgment is entered. Things Remembered,
Waugh’s assertion that the violation of the forum defendаnt rule constitutes a
procedural defect is contrary to this circuit’s precedent. In Hurt v. Dow Chemical
Company,
III.
We now turn to Waugh’s argument that the district court erred in denying his motion to dismiss the other defendants in the case. According to Waugh, the defendants who failed to answer “should have been dismissed as nominal or dispensable parties,” leaving Waugh as the only defendant and establishing complete diversity. As Waugh sees it, all of the other defendants are “nominal” because their “only interest in the suit was as named beneficiaries of the subject Trust.”
Federal Rule of Civil Procedure 21 provides in relevant part that “[p]arties may
be dropped or added by order of the court on motiоn of any party or of its own
initiative at any stage of the action on such terms as are just.” The United States
Supreme Court has stated that “it is well-settled that Rule 21 invests district courts
with authority to allow a dispensable nondiverse party to be dropped at any time.”
Newman-Green, Inc. v. Alfonzo-Larrain,
In the case at hand, Horton was designated as the successor trustee by a “letter of instruction” attached to the trust. Horton then brought an action to construe the trust beсause he was “unable to ascertain with a full degree of certainty, the nature and extent of the written trust documents to which should be relied upon in the further administration of the trust and eventual distribution thereof.” Petitiоn to Construe Trust ¶ 14. It appears that eleven of the twelve defendants in this case will be affected to varying degrees by the court’s interpretation of the trust, as each was named as a beneficiary at one point in the trust’s much-altered existence. Thus, on the face of the pleadings, none of the defendants are dispensable, as they all were at one time beneficiaries to the trust. Determining which beneficiaries, if any, are dispensable requires an evaluation of the case on the merits by the district court. Accordingly, the district court did not err in denying Waugh’s motion to dismiss the other defendants in this case.
IV.
As a final matter, we address Horton’s motion for sanctions against Waugh. Horton requests that this court impose sanctions for damages and costs against Waugh under Fed. R. App. P. 38, which governs frivolous appeals and provides in relevant part that “[i]f a court of appeals determines that an appeal is frivolous, it may . . . award just damages and single or double costs to the appellee.” Horton asserts that Waugh’s motion for removal to state court and motion to dismiss were without merit because mandatory authority dictated the case could not be removed.
Our court has stated that an appeal is frivolous “when thе result is obvious or
when the appellant’s argument is wholly without merit.” Newhouse v. McCormick
& Co., Inc.,
Overlooking these defects, Waugh’s appeal rested on the premise that our court might overturn Hurt in light of contrary views expressed by other circuits. Although there are grounds for us to conclude that Waugh’s appeal challenged a district court decision that was “wholly in confоrmance with applicable law,” given the disagreements among the circuits regarding the nature of the forum defendant rule violations, we decline to impose sanctions under Fed. R. App. P. 38.
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Notes
[1] The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri.
[2] The twelfth defendant is named in the trust because he was a financial advisor to the trustees and has a copy of the trust.
[3] It should be noted that Waugh’s аrgument that Horton waived his right to have the case remanded by failing to file a motion to remand within thirty days fails to acknowledge that Horton demonstrated, per the district court’s order, that Missouri defendants had been served within the thirty day window Horton had to file a remand motion. Thus, even if this case had been reviewed under the rule that the forum defendant rule is nonjursidictional, Waugh could not have prevailed, as Horton’s compliance with the district court’s order arguably obviated the need to file a motion to remand.