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 Donna
Laster, Roland Levesque, Alonzo Alford, Perry Wright, Tonya
Coker, John Kouril, Constance Critelli, Individually and as
Personal Representative of the Estate of Joseph Critelli,
Deceased, and Lynette Ludwig's (“plaintiffs”)
motion to remand the case to state court. Defendants Monsanto
Company (“Monsanto”), Osborn & Barr
Communications, Inc., and Osborne & Barr Holdings, Inc.
(collectively the “Osborn & Barr defendants”)
have not opposed the motion to remand and the time to do so
has passed. For following reasons, the Court concludes that
it lacks subject matter jurisdiction over this action because
of the presence of forum state defendants, see 28
U.S.C. § 1441(b)(2), and therefore must grant
plaintiffs' unopposed motion to remand.
filed this action in the Circuit Court of the City of St.
Louis, Missouri on March 7, 2018. Generally speaking, the
Petition asserts state law products liability, tort, and
statutory claims and seeks monetary damages for
plaintiffs' personal injuries and wrongful death
allegedly caused by their exposure to defendants'
Roundup® herbicide products. Plaintiffs' Petition
alleges they are “residents” of various states
other than Missouri, that Monsanto is a Delaware corporation
with its principal place of business in Missouri, and that
the Osborn & Barr defendants are Missouri corporations
with their principal places of business in Missouri.
removed the action to this Court two days after it was filed,
on March 9, 2018, 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. The Notice of Removal asserts that because none
of the defendants have been served with summons and petition,
“the forum defendant rule of 28 U.S.C. §
1441(b)(2) does not apply here, and this case is removable
under 28 U.S.C. § 1441(a).” Doc. 1 at 5.
move to remand the case to state court asserting that the
Court lacks subject matter jurisdiction based on the forum
defendant rule, because all of the defendants are citizens of
Missouri. Plaintiffs state that the forum defendant rule is
jurisdictional, citing Horton v. Conklin, 431 F.3d
602, 602 (8th Cir. 2005).
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, 431 F.3d at 605 (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 at 1242. The
statute's “joined and served” language
provides a safety valve for the rule, as it “prevent[s]
plaintiffs from joining, but not serving, forum defendants to
block removal.” Id. at 1245.
assert that pre-service removal by a forum state defendant is
barred by the forum defendant rule and is inconsistent with
the purposes and policies of diversity jurisdiction, citing
Pecherski v. General Motors Corp., 636 F.2d 1156,
1158-60 (8th Cir. 1981), and a number of decisions from this
Court, including Perez, 902 F.Supp.2d 1238, and
Bailey v. Monsanto, 176 F.Supp.3d 853 (E.D. Mo.
Court and other district courts have addressed the issue of
pre-service removal by a forum state defendant, also known as
“snap removal, ” on numerous occasions with
divergent results. See Hensley v. Forest Pharms.,
Inc., 21 F.Supp.3d 1030, 1036 (E.D. Mo. 2014)
(discussing differing reasoning and outcomes in Eastern
District of Missouri removed cases). One approach to the
issue requires strict adherence to the plain language of 28
U.S.C. § 1441(b)(2), resulting in the denial of remand
in cases with unserved forum defendants. See Gray v.
Monsanto Co., 2018 WL 488935, at *2 (E.D. Mo. Jan. 19,
2018) (collecting cases).
second approach relies on one of the Eighth Circuit's
exceptions to the plain language rule, where applying the
plain text of a statute leads to a result demonstrably at
odds with the drafters' intent, which intent must be
controlling. See Owner-Operator Indep. Drivers Ass'n
v. United Van Lines, LLC, 556 F.3d 690, 693-94 (8th Cir.
2009) (discussing exception). These cases reason that removal
based on diversity of citizenship is premised on protecting
non-resident litigants from prejudice in state court, a need
that is absent where the defendant is a citizen of the state
in which the case in filed. See, e.g.,
Perez, 902 F.Supp.2d at 1242-43; Hensley,
21 F.Supp.3d at 1035. Some cases using the second approach
apply the exception ...