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Czapla v. Republic Services, Inc.

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

March 13, 2019

REPUBLIC SERVICES, INC., et al., Defendants.



         This 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 (Doc. 31).


          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 16.)

         On 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. 21.)

         Legal Standard

         "[A]ny 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.

         "Removal 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.


         I. Diversity Jurisdiction

         Plaintiffs 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.[1] 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.'").

         Defendants 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.").

         However, 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."

         In 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 ...

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