United States District Court, W.D. Missouri, Western Division
FERNANDO J. GAITAN, Jr., District Judge.
Pending before the Court are (1) Defendant Kindred's Partial Motion to Dismiss (Doc. No. 4); (2) Plaintiff's Motion to Remand (Doc. No. 8); (3) Plaintiff's Motion for Extension of Time (Doc. No. 9); (4) Defendant Dixon's Motion to Dismiss for Lack of Jurisdiction (Doc. No. 15); (5) Plaintiff's Motion for Extension of Time (Doc. No. 17); and (6) the Parties' Joint Motion for Protective Order (Doc. No. 20). All are considered, below.
On September 16, 2014, plaintiff filed her Petition for Damages in the Circuit Court of Jackson County, Missouri, at Kansas City. Plaintiff makes claims under the Missouri Human Rights Act ("MHRA") for (1) race discrimination, (2) racial harassment, (3) retaliation, and (4) aiding, abetting, compelling, coercing, and inciting violations of the MHRA. Plaintiff is a citizen of the state of Kansas. Defendant Kindred is a citizen of Delaware and Kentucky, and Defendant Patricia Dixon is a citizen of Missouri.
On September 18, 2014, just two days after the filing of the state court petition and before any defendant had been served, Defendant Kindred filed a notice of removal (Doc. No. 1). Defendant Kindred asserted that this action is removable pursuant to 28 U.S.C. § 1441(a) because it is within the United States District Court's jurisdiction under 28 U.S.C. § 1332(a) in that the parties are citizens of different states, and the amount in controversy exceeds $75, 000. Doc. No. 1, p. 2. Defendant Kindred further indicated that the Missouri citizenship of Defendant Dixon should not be considered because she had not been served with process at the time of removal (two days after the case had been filed), and therefore the forum defendant rule would not apply. See 28 U.S.C. § 1441(b)(2), which provides "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." In the notice of removal, Defendant Kindred did not argue that Defendant Dixon was fraudulently joined as a defendant.
On October 22, 2014, plaintiff filed a motion to remand. Doc. No. 8. Defendant Dixon was served on October 20, 2014.
II. Plaintiff's Motion for Remand (Doc. No. 8)
Plaintiff moves for an order remanding this case to the Circuit Court of Jackson County, Missouri. Plaintiff asserts that removal is not appropriate under the forum defendant rule. Plaintiff also asserts that Defendant Dixon is not fraudulently joined in this action; however, the Court finds that since fraudulent joinder was not mentioned at all in the notice of removal, the Court need not consider that possible ground for removal.
A defendant may remove an action from state court to federal court when the case falls within the original jurisdiction of the federal courts. 28 U.S.C. § 1441(a). If the case is not within the original subject matter jurisdiction of the district court, the court must remand the case to the state court from which it was removed. 28 U.S.C. § 1447(c). Pertinent to the current set of facts, "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between-(1) citizens of different States." 28 U.S.C. § 1332(a). Another restriction on the removal of diversity jurisdiction cases is the "forum defendant rule, " found at 28 U.S.C. § 1441(b), which does not allow removal based on diversity jurisdiction 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); Horton v. Conklin, 431 F.3d 602, 604 (8th Cir. 2005); Perez v. Forest Laboratories, Inc., 902 F.Supp.2d 1238, 1241 (E.D. Mo. 2012). "The violation of the forum defendant rule is a jurisdictional defect and not a mere procedural irregularity capable of being waived.'" Horton, 431 F.3d at 605 (quoting Hurt v. Dow Chem. Co., 963 F.2d 1142, 1146 (8th Cir. 1992)).
The burden of establishing federal jurisdiction is on the party seeking removal. In re Bus. Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir.1993). On a motion to remand, the district court must strictly construe the removal statute and resolve all doubts in favor of remand. Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 625 (8th Cir.1997)(citing Bus. Men's Assurance, 992 F.2d at 183).
In her motion to remand, plaintiff argues that Defendant Kindred's act of removing this case just two days after it was filed is an act of gamesmanship. Plaintiff notes that this type of gamesmanship has been rejected by federal district judges in the Western District of Missouri on the same facts. See Perfect Output of Kansas City, LLC v. Ricoh Americas Corporation, et al., No.: 12-0189-CV-W-SOW, 2012 WL 2921852, at *2 (W. D. Mo. July 17, 2012); Herling v. Thyssenkrup Access Corp., No. 10-1107-CV-W-ODS, 2011 WL 649021, at *1 (W.D. Mo. Feb. 11, 2011). See also Perez v. Forest Laboratories, Inc., 902 F.Supp.2d 1238 (E.D. Mo. 2012). In Perfect Output, Judge Wright explained:
Courts have noted that the rationale for the "joined and served" requirement is "to prevent a plaintiff from blocking removal by joining as a defendant a resident party against whom it does not intend to proceed, and whom it does not even serve." When interpreting statutes, however, the Court must give words their plain meaning unless doing so would frustrate the statutory scheme, lead to absurd results, or contravene clear legislative intent. Here, defendants' interpretation of the removal statute would ...