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)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MMI ENGINEERING, LTD. and
MMI ENGINEERING, INC.,
Plaintiffs,

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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).

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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

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