United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs Marc and Jill
Czapla's Motion to Remand. (Doc. 21.) Defendants filed a
memorandum in opposition (Doc. 28), and Plaintiffs replied
Plaintiffs filed suit in the Circuit Court of St. Louis
County, Missouri, on February 20, 2018, against Republic
Services, Inc., Bridgeton Landfill, LLC, Allied Services,
LLC, Westlake Landfill, Inc., and Rock Road Industries, Inc.
(Doc. 1 at 12-21.) Plaintiffs alleged that Marc Czapla
suffered numerous negative health effects as a long-term
result of radiological waste kept at the West Lake Landfill
in Bridgeton, Missouri, where Marc grew up. (Id. at
March 5, 2018, only thirteen days after Plaintiffs filed suit
and before they perfected service on any adverse party,
Defendant Bridgeton Landfill removed the case to this Court
on the basis of diversity jurisdiction. (Id. at
1-10.) Defendants did not cite any other basis for removal.
Plaintiffs now move to remand, arguing that the parties are
not completely diverse and that Defendants' attempt to
invoke federal-question jurisdiction is impermissible. (Doc.
civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may
be removed by the defendant or the defendants, to the
district court of the United States for the district and
division embracing the place where such action is
pending." 28 U.S.C. § 1441(a). Federal courts have
original jurisdiction if (1) the case arises under federal
law or (2) more than $75, 000 is in controversy and the
parties are diverse. 28 U.S.C. §§ 1331, 1332. Under
28 U.S.C. § 1446, the removing party must file a notice
"containing a short and plain statement of the grounds
for removal" within thirty days after receiving a copy
of the complaint.
statutes are strictly construed, and any doubts about the
propriety of removal are resolved in favor of state court
jurisdiction and remand." Madderra v. Merck Sharpe
& Dohme Corp., 2012 WL 601012, at *1 (E.D. Mo. Feb.
23, 2012). The party seeking removal and opposing remand has
the burden of establishing jurisdiction by a preponderance of
the evidence. Id.
argue that the forum defendant rule prohibits removal in this
case. (Doc. 22.) "A civil action otherwise removable
solely on the basis of [diversity jurisdiction] 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." 28 U.S.C. § 1441(b)(2). There
is no debate that, at the time of removal, Defendant Rock
Road Industries was a Missouri corporation. See Grupo
Data/lux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570
(2004) (quoting Mollan v. Torrance, 9 Wheat. 537,
539, 6 L.Ed. 154 (1824) ("It has long been the case that
'the jurisdiction of the court depends upon the state of
things at the time of the action brought.'").
respond that the forum defendant rule does not apply in this
case because Rock Road had not been served when the case was
removed. (Id. at 3.) In support, Defendants cite
cases from this Court granting removal when the forum
defendant had not yet been served. In Johnson v.
Precision Airmotive, LLC, No. 4:07CV1695 CDP, 2007 WL
4289656, at *1 (E.D. Mo. Dec. 4, 2007), this Court held that
"the text of § 1441(b) does not prohibit removal in
a case where the forum defendants have not yet been served
with the complaint." It reached similar conclusions in
Johnson v. Emerson Elec. Co., No. 4:13-CV-1240-JAR,
2013 WL 5442752, at *4 (E.D. Mo. Sept. 30, 2013)
("Because the Missouri citizen, Emerson, was not served
at the time of removal, the limitation on removal in §
1441(b) does not apply."), Terry v. J.D. Streett
& Co., No. 4:09CV01471 FRB, 2010 WL 3829201, at *2
(E.D. Mo. Sept. 23, 2010) ("[D]efendant had not been
served before it removed the case to this Court, and the
forum defendant rule therefore fails to aid
plaintiffs."), Taylor v. Cottrell, Inc., No.
4:09CV536HEA, 2009 WL 1657427, at *2 (E.D. Mo. June 10, 2009)
("The Missouri citizen, Auto Hauling Corp., was not
served at the time of removal. Thus, the limitation on
removal in section 1441(b) does not apply."), and
Brake v. Reser's Fine Foods, Inc., No.
4:08CV1879 JCH, 2009 WL 213013, at *3 (E.D. Mo. Jan. 28,
2009) ("The Missouri residents, Said and Abdella, were
not served at the time of removal. Thus, the limitation on
removal in section 1441(b) does not apply.").
this Court has more recently narrowed its application of
§ 1441(b) by requiring service on at least one defendant
before the case may be removed. In Rogers v. Boeing
Aerospace Operations, Inc., 13 F.Supp.3d 972, 978 (E.D.
Mo. 2014), the Court held that "[u]nder the plain,
unambiguous language of Section 1441(b)(2), an out-of-state
defendant may remove a diversity case if at least one
defendant-and no forum defendant-has been served." This
interpretation, the Court explained, mitigates the risk of
cases in which "an out-of-state defendant-or even a
forum defendant-has 'hawked' the state court docket
and removed before service to any defendant has
occurred," while imposing on plaintiffs the "modest
burden of serving [the forum defendant] before any
others." Id. (citing Perez v. Forest Labs.,
Inc., 902 F.Supp.2d 1238, 1246 (E.D. Mo. 2012)). In
Gray v. Monsanto Co., No. 4:17CV2882 HEA, 2018 WL
488935, at *3 (E.D. Mo. Jan. 19, 2018), the Court summarized
the historical treatment of § 1441(b) in the Eighth
Circuit before remanding the case, noting that
"Defendant removed a mere 15 days [after the action was
filed in state court], clearly not allowing Plaintiff
sufficient time to serve it."
Laster v. Monsanto Co., No. 4:18-CV-397 CAS, 2018 WL
1566846, at *3 (E.D. Mo. Mar. 30, 2018), the Court stated,
"Given the ability of defendants to learn of lawsuits
filed long before any formal service of process can occur, to
blindly apply the 'properly joined and served'
language of section 1441(b)(2) 'is to eviscerate the
purpose of the forum defendant rule.'" (citing
Sullivan v. Novartis Pharm. Corp., 575 F.Supp.2d
640, 646 (D.N.J. 2008)). Later, in Heinzen v. Monsanto
Co., No. 4:17-CV-2881 CAS, 2018 WL 1397533, at *4 (E.D.
Mo. Mar. 20, 2018), the Court added that "[p]re-service
removal by means of monitoring the electronic docket smacks
more of forum shopping by a defendant, than ...