United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER OF REMAND
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
removed matter is before the Court on plaintiffs Richard and
Katerina Heinzen's (“plaintiffs”) motion to
remand the case to state court. Defendant Monsanto Company
(“Monsanto”) opposes the remand, asserting that
this Court has diversity jurisdiction over the action.
Plaintiffs filed a reply and the matter is fully briefed. For
the following reasons, the Court concludes that it lacks
subject matter jurisdiction over this action because of the
presence of a forum state defendant, see 28 U.S.C.
§ 1441(b)(2), and therefore must grant plaintiffs'
motion to remand.
filed this action in the Circuit Court of St. Louis County,
Missouri on September 22, 2017, asserting claims against
Monsanto for negligence, willful and wanton misconduct,
strict products liability, and loss of consortium. Plaintiffs
allege that as a result of exposure to Monsanto's
product, Roundup®, plaintiff Richard Heinzen developed
Non-Hodgkin's Lymphoma and has become disabled,
disfigured, and impaired in the enjoyment of life, and has
experienced and will in the future experience physical pain
and mental and emotional suffering. Plaintiff Katerina
Heinzen asserts claims for loss of consortium as a result of
the injuries suffered by her spouse Richard Heinzen.
Plaintiffs allege they are citizens of Wisconsin and that
Monsanto is a Delaware corporation with its principal place
of business in Missouri.
removed the action to this Court on December 14, 2017,
asserting that the Court has diversity jurisdiction over this
matter pursuant to 28 U.S.C. § 1332(a) because the
parties are of completely diverse citizenship and
plaintiffs' petition plausibly seeks damages in excess of
the $75, 000 amount in controversy requirement. Plaintiffs
move to remand the case to state court asserting that the
Court lacks subject matter jurisdiction based on the forum
defendant rule, 28 U.S.C. § 1441(b)(2), because Monsanto
is a citizen of Missouri. Monsanto asserts that it has not
been served in the state court action and therefore the forum
defendant rule does not apply here, and the case is removable
under 28 U.S.C. § 1441(a).
moving to remand, plaintiffs dispute the statement in
Monsanto's Notice of Removal that it “has not been
served with the Petition in the State Court Action.”
(Doc. 1 at 4.) Plaintiffs state that a summons for service by
first class mail was issued and mailed to Monsanto's
Missouri registered agent for service of process by the Clerk
of the St. Louis County Circuit Court on October 31, 2017,
but that neither Monsanto nor its registered agent returned
the accompanying acknowledgment. Plaintiffs assert that
because the summons and complaint were mailed by the clerk on
October 31, 2017, Monsanto's registered agent would have
received them more than 30 days before the case was removed
and therefore removal is untimely. Plaintiffs note that
Monsanto does not state how it became aware of the state
court action, and assert that it is refusing to
acknowledge service, which “may have made such
service ineffective, but it did not make it improper or
negate that it occurred.” (Doc. 10 at 7.)
responds that it was never served with the state court
petition and asserts that it was plaintiffs'
responsibility, not the state court clerk's, to mail the
summons via first class mail after the clerk signed the
summons, as reflected by the directions on the summons
clerk should issue one copy of this summons for each
Defendant/Respondent to be served by first class mail. Under
Section 506.150.4, RSMo, service by first class
mail may be made by Plaintiff/Petitioner or any
person authorized to serve process under Section 506.140,
10-1 at 2) (emphasis added). Monsanto does not dispute that
state clerk issued a copy of the summons, but contends that
the directions on the summons and the state court docket
sheet make it clear it was plaintiffs' responsibility to
download the summons and mail it. Monsanto points to a state
court docket entry dated October 31, 2017 titled
“Summons Issued - “1st Class Mail, ” that
states, “Summons Attached in PDF Form for
[plaintiffs'] Attorney to Retrieve from Secure Case.Net
and Process for Service.” ECF No. 14-1. Monsanto notes
there is no additional clerk's note to indicate that the
state court clerk actually mailed the summons. Monsanto also
points out that the “Notice and Acknowledgment for
Service by Mail, ” which must accompany the summons
pursuant to § 506.150.4, Mo. Rev. Stat., was never
signed by plaintiffs' counsel to indicate that the Notice
was mailed. (See Doc. 10-1 at 1.) Monsanto also
submits the Declaration of its registered agent, Corporation
Service Company's (“CSC”) Research
Coordinator, which states that he searched CSC's
Litigation Management System database and determined it had
no record of receiving any service of process papers for a
lawsuit filed by the Heinzens against Monsanto in the Circuit
Court of St Louis County, Missouri.
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. Knudsen v. Systems
Painters, Inc., 634 F.3d 968, 975 (8th Cir. 2011).
Statutes conferring diversity jurisdiction are to be strictly
construed, Sheehan v. Gustafson, 967 F.2d 1214, 1215
(8th Cir. 1992), as are removal statutes. Nichols v.
Harbor Venture, Inc., 284 F.3d 857, 861 (8th Cir. 2002).
“All doubts about federal jurisdiction [based on
diversity of citizenship] should be resolved in favor of
remand to state court.” Hubbard v. Federated Mut.
Ins. Cop., 799 F.3d 1224, 1227 (8th Cir. 2015). Under
this presumption, “any doubts about the propriety of
removal are resolved in favor of remand.” Id.
must be remanded if, at any time, 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).
“forum defendant” rule, codified at 28 U.S.C.
§ 1441(b)(2), imposes an additional restriction on the
removal of diversity cases. The statute 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 Eighth Circuit, a violation
of the forum defendant rule is a jurisdictional defect, 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)). 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
is based on the reasoning that the presence of an in-state
defendant negates the need for protection from local biases,
even in multi-defendant cases. Perez, 902 F.Supp.2d
statute's “joined and served” language
provides a safety valve for the rule, as it “prevent[s]
plaintiffs from joining, but not serving, ...