MMI Engineering, Ltd. et al v. Heynes et al

Filing 9

Judge Mark L. Wolf: ORDER entered. SEE ATTACHED ORDER Accordingly, it is hereby ORDERED that: 1. By 12:00 noon on June 12, 2013, the plaintiffs shall state whether they object to the removal of this case and request a remand. 2. If the plaintiffs do not object to the removal, then the defendants shall, by June 13, 2013, file an opposition to the plaintiffs' Emergency Motion for Expedited Discovery (Docket Nos. 4, 8), which the court will decide if it determines that it has jurisdiction in this case.(Hohler, Daniel)

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS MMI ENGINEERING, LTD. and MMI ENGINEERING, INC., Plaintiffs, ) ) ) ) ) ) ) ) ) ) v. OLIVER HEYNES and INSIGHT NUMERICS, LLC, Defendants. C.A. No. 13-11369-MLW ORDER WOLF, D.J. June 10, 2013 On June 7, 2013, defendants MMI Engineering, Ltd. and MMI Engineering, Inc. removed this case to this court from Suffolk Superior Court for the Commonwealth of complaint asserts only state law claims. Massachusetts. The The Notice of Removal states that there is jurisdiction in federal court based on diversity of citizenship because the plaintiffs are citizens of the United Kingdom and Texas, the defendants are citizens of Massachusetts, and the amount in controversy is over $75,000. See Notice the of Removal (Docket No. 1). Following removal, plaintiffs filed an Emergency Motion for Expedited Discovery in which they seek an order requiring the defendants to answer certain discovery requests in advance Procedure 26(f) conference. discovery responses in preliminary injunction. of the Federal Rule of Civil The plaintiffs seek to use expedited support of a potential motion for Plaintiffs also seek an immediate hearing on their emergency motion. See Pls.' Req. for Immediate Hr'g on Emergency Mot. (Docket No. 6). for an immediate hearing. The defendants oppose the request See Defs.' Opp. (Docket No. 7). Removal of this case to federal court appears to violate 28 U.S.C. §1441(b)(2), which states: (2) 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 States in which such action is brought. This rule is known as the "forum defendant rule." See Howard v. Genentech, Inc., No. 12-11153-DPW, 2013 WL 680200, at *6 (D. Mass. Feb. 21, 2013). In this action, which is removable solely on the basis of diversity jurisdiction, plaintiffs allege defendants are each citizens of Massachusetts. Notice of Removal. See Complaint ¶¶5, 6; see also If true, and if the defendants were "properly joined and served," removal of this case is improper based on the forum defendant rule. federal courts have See 28 U.S.C. §1441(b)(2). held that the forum A majority of defendant rule is statutory, not jurisdictional, and therefore may be waivable by the plaintiff. See Hurley v. Motor Coach Indus., Inc., 222 F.3d 377, 378-80 (7th Cir. 2000) (citing cases). But see Hurt v. Dow Chem. Co., 963 F.2d 1142, 1145-46 (8th Cir. 1992). The plaintiffs have not stated whether they oppose the removal and request the remand to which they are evidently entitled. Hurley, 222 F.3d at 378. days to do so. See The statute provides that they have 30 See 28 U.S.C. §1447(c). -2- However, the court wishes to determine whether it has jurisdiction before addressing the plaintiffs' emergency motion and other substantive matters. Accordingly, it is hereby ORDERED that: 1. By 12:00 noon on June 12, 2013, the plaintiffs shall state whether they object to the removal of this case and request a remand. 2. If the plaintiffs do not object to the removal, then the defendants shall, by June 13, 2013, file an opposition to the plaintiffs' Emergency Motion for Expedited Discovery (Docket Nos. 4, 8), which the court will decide if it determines that it has jurisdiction in this case. /s/ Mark L. Wolf UNITED STATES DISTRICT COURT -3-

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