United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on plaintiff's motion to
remand the action to the state court from which it was
removed. Defendant Five Below, Inc. has filed a response in
opposition. All issues are fully briefed.
March 1, 2017, plaintiff initiated this action in the Circuit
Court of St. Louis County, Missouri, asserting a claim of
employment discrimination in violation of the Missouri Human
Rights Act, Mo. Rev. Stat. §§ 213.010, et
seq. Plaintiff claims that the defendants terminated her
employment at defendant Five Below's retail store because
of her race. Plaintiff alleges that she is a citizen of
Illinois, that Five Below is a citizen of Pennsylvania, and
defendant Alice Hoeltzer is a citizen of Missouri.
Below received service of process on March 13, 2017, and
removed the action to this Court on April 7, 2017, invoking
jurisdiction based on diversity of citizenship, 28 U.S.C.
§ 1332(a). In the instant motion plaintiff argues that
because Hoeltzer is a Missouri citizen this case should be
remanded pursuant to the forum defendant rule, 28 U.S.C.
§ 1441(b)(2). Five Below opposes remand, asserting that
Hoeltzer has not been “properly joined and served,
” as required by § 1441(b)(2).
defendant may remove a state law claim to federal court only
if the action originally could have been filed there.”
In re Prempro Prods. Liab. Litig., 591 F.3d 613, 619
(8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d
1006, 1010 (8th Cir. 2005)). The removing defendant bears the
burden of establishing federal jurisdiction by a
preponderance of the evidence. Altimore v. Mount Mercy
Coll., 420 F.3d 763, 768 (8th Cir. 2005). “All
doubts about federal jurisdiction should be resolved in favor
of remand to state court.” In re Prempro, 591
F.3d at 620 (citing Wilkinson v. Shackelford, 478
F.3d 957, 963 (8th Cir. 2007)). A case must be remanded if,
at anytime, it appears that the district court lacks
subject-matter jurisdiction. 28 U.S.C. § 1447(c);
of citizenship jurisdiction under 28 U.S.C. § 1332
requires an amount in controversy greater than $75, 000 and
complete diversity of citizenship among the litigants.
“Complete diversity of citizenship exists where no
defendant holds citizenship in the same state where any
plaintiff holds citizenship.” OnePoint Solutions,
LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007).
“forum defendant” rule-set forth in 28 U.S.C.
§ 1441(b)(2)-imposes an additional restriction on the
removal of diversity cases. Specifically, the statute
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.
parties contest the appropriate application of the forum
defendant rule. Plaintiff contends that under Eighth Circuit
precedent “the forum defendant rule [is]
jurisdictional, ” and therefore “district courts
within the Eighth Circuit must consider a yet to be served
forum defendant when addressing the propriety of
removal.” [Doc. #9 at 2]. Plaintiff cites Mikelson v.
Allstate Fire Casualty Insurance Company No.
16-01237-CV-W-RK, 2017 WL 634515 (W.D. Mo. Feb. 16, 2017),
Roberts v. ITT Technical Institute, No.
16-00030-CV-W-ODS, 2016 WL 1179208 (W.D. Mo. Mar. 24, 2016),
and Bailey v. Monsanto Company, 176 F.Supp.3d 853
(E.D. Mo. 2016) to support her argument.
Below argues that removal was proper under the plain language
of 28 U.S.C. § 1441. In particular, Five Below insists
that plaintiff's invocation of the forum defendant rule
is improper, as plaintiff (1) made no attempt to serve
defendant Hoeltzer, (2) “never even requested issuance
of a summons, ” (3) instructed the state court to
“hold service, ” and (4) has not issued
“any discovery requests, ” for that
information. [Doc. #12 at 2 (internal formatting
omitted)]. Five Below also states that it waited twenty-five
days after receiving service to remove to federal court, and
therefore did not “hawk” the docket. Id.
(citing Rogers v. Boeing Aerospace Operations, Inc.,
13 F.Supp.3d 972, 977 (E.D. Mo. 2014)). Five Below contends
that these factors distinguish this case from those cited by
Eighth Circuit, a violation of the forum defendant rule
introduces a jurisdictional defect and not “‘a
mere procedural irregularity capable of being
waived.'” Horton v. Conklin, 431 F.3d 602,
605 (8th Cir. 2005) (quoting Hurt v. Dow Chem. Co.,
963 F.2d 1142, 1146 (8th Cir. 1992)). And the substance of
this rule mandates that a defendant may remove a case
“only if none of the parties in interest properly
joined and served as defendants is a citizen of the state in
which such action is brought.” Perez v. Forest
Labs., Inc., 902 F.Supp.2d 1238, 1241 (E.D. Mo. 2012)
(citing Lincoln Prop. Co. v. Roche, 546 U.S. 81, 90
(2005); Horton, 431 F.3d at 604)). The forum
defendant rule springs from the logic that the presence of an
in-state defendant negates the need for protection from local
biases, even in multi-defendant cases. Perez, 902