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Travers v. Five Below, Inc.

United States District Court, E.D. Missouri, Eastern Division

June 29, 2017

ANN TRAVERS, Plaintiff,
v.
FIVE BELOW, INC., and ALICE HOELTZER, Defendants.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Background

         On 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.

         Five 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).

         II. Legal Standards

         “A 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); Fed.R.Civ.P. 12(h)(3).

         Diversity 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).

         The “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 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.

         III. Discussion

         The 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].[1] 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.

         Five 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.[2] [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 plaintiff.

         In the 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 ...


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