United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
M. Brown UNITED STATES DISTRICT JUDGE
motor vehicle action is before the Court on Angela
Kelly's motion to remand, Doc. #11, and her motion to
dismiss, Doc. #13.
Factual and Procedural History
September 29, 2016, Angela Kelly filed a complaint in the
Circuit Court of Washington County, Mississippi, against
Louis Jeffrey Hill and Dedicated Logistics, LLC. Doc. #2. In
the complaint, Kelly alleges that on or about December 17,
2014, Hill, operating an 18-wheeler for his employer
Dedicated Logistics, struck her BMW, causing her to suffer
serious bodily injuries, and that Hill drove away from the
accident. Id. at ¶¶ 8-10.
served the complaint on Dedicated Logistics on October 18,
2016. Doc. # 14 at 1. Fourteen days later, Dedicated
Logistics filed a notice of removal alleging diversity
jurisdiction pursuant to 28 U.S.C. § 1332. Doc. #1 at
¶¶ 3-6. At the time of removal, Hill, a Mississippi
resident, had not been served with process despite
Kelly's attempts to effect service. Hill was effectively
served on November 15, 2016. Doc. #8. On November 16, 2016,
Hill consented to and joined Dedicated Logistics' removal
and answered the complaint. Doc. #9; Doc. #10.
November 22, 2016, Kelly moved to remand. Doc. #11. On
November 28, 2016, Kelly filed a motion for voluntary
dismissal, without prejudice, pursuant to Federal Rule of
Civil Procedure 41(a)(2). Doc. #13.
Motion to Remand
remand motion,  Kelly argues Dedicated Logistics'
removal violates the forum defendant rule found in 28 U.S.C.
§ 1441(b)(2) but throughout her brief, she relies on
case law concerning diversity of citizenship under 28 U.S.C.
diversity jurisdiction, there is no dispute that this action
is between citizens of different states and involves an
amount in controversy greater than $75, 000.00. Doc. #1; Doc.
#2. Accordingly, this Court has diversity jurisdiction over
the action. See 28 U.S.C. § 1332;
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
“forum-defendant rule” provides that “[a]
civil action otherwise removable solely on the basis of the
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). The
forum defendant rule is procedural and not jurisdictional.
In re 1994 Exxon Chemical Fire, 558 F.3d 378, 396
(5th Cir. 2009).
Congress added the “properly joined and served”
language to § 1441 in 1948, it provided no explanation
for doing so in the published legislative history. See
Sullivan v. Novartis Pharm. Corp., 575 F.Supp.2d 640,
644 (D.N.J. 2008). Multiple courts, however, have interpreted
the amendment as an effort to prevent gamesmanship by
plaintiffs. See id. at 643 (collecting cases). In
the view of these courts, Congress added the language
“to prevent a plaintiff from blocking removal by
joining as a defendant a resident party against whom [the
plaintiff] does not intend to proceed, and whom [the
plaintiff] does not even serve.” Id. at 645.
when an action is removed to federal court before the forum
defendant is “properly joined and served, ” the
forum defendant rule does not require remand. See, e.g.,
Ott v. Consol. Freightways Corp. of Delaware, 213
F.Supp.2d 662, 666 (S.D.Miss. 2002). However, consistent with
the anti-gamesmanship view, courts from this circuit have
“taken a skeptical view of the ‘properly joined
and served' language when it appears that the defense is
taking improper advantage of the exception to circumvent the
forum defendant rule by removing the action before service of
the forum defendant.” Gorman v. Schiele, No.
15-00790, 2016 WL 3583645, at *3 (M.D. La. June 8, 2016)
(collecting cases), adopted by 2016 WL 3580669 (M.D.
La. June 28, 2016). This skepticism notwithstanding, only a
minority of courts in this circuit and elsewhere have held
that when defendants engage in forum manipulation, remand is
warranted regardless of service on the forum defendant.
See Reynolds v. Pers. Representative of the Estate of
Johnson, 139 F.Supp.3d 838, 842-43 (W.D. Tex. 2015)
Court need not decide today whether forum manipulation would
warrant remand under the forum defendant rule because forum
manipulation by Dedicated Logistics has not been established.
Kelly argues, in conclusory fashion, that Dedicated Logistics
“strategically filed its notice of removal before
service of process of Hill in order to evade the forum
defendant rule.” Generally, forum manipulation has been
found when a defendant “sought to circumvent the
forum-defendant rule by strategically filing for removal
before the plaintiffs were able to serve the forum
defendant.” See, e.g., Reynolds, 139 F.Supp.3d
at 842-43 (gamesmanship shown by removal prior to service or
extremely quick removal after service). Here, Dedicated
Logistics filed its notice of removal fourteen ...