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,
)
)
)
)
)
)
)
)
)
)
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
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