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Kelly v. Dedicated Logistics, LLC

United States District Court, N.D. Mississippi, Greenville Division

September 5, 2017




         This motor vehicle action is before the Court on Angela Kelly's motion to remand, Doc. #11, and her motion to dismiss, Doc. #13.

         I Factual and Procedural History

         On 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.

         Kelly 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.

         On 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.

         II Analysis

         A. Motion to Remand

         In her remand motion, [1] 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. § 1332.[2]

         As to 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).

         The “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).

         When 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.

         Generally, 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) (collecting cases).

         The 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 ...

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