Rogers v. Boeing Aerospace Operations, Inc. et al

Filing 21

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that plaintiffs motion to remand [# 14 ] is denied. This case will be set for a Rule 16 scheduling conference by separate order. Signed by District Judge Catherine D. Perry on 03/31/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SHELLIE L. ROGERS,

)
)
Plaintiff,
)
)
vs.
) Case No. 4:13CV1448 CDP
)
BOEING AEROSPACE OPERATIONS, )
INC., et al.,
)
)
Defendants.
)
MEMORANDUM AND ORDER
Plaintiff Shellie Rogers filed suit in Missouri state court against her former
employer, Boeing Aerospace Operations, Inc., and her former supervisor, Augustine
Pacheco, for violation of the Missouri Human Rights Act, Mo. Rev. Stat. § 213.010 et
seq. Boeing removed the case to this court, citing diversity jurisdiction. This action
is before me now on Rogers’ motion to remand based on the so-called “forum
defendant rule,” which prevents removal if a defendant is a citizen of the forum state.
See 28 U.S.C. § 1441(b)(2). Rogers argues that the forum defendant rule acts to
prohibit removal where any named defendant is a citizen of the forum state and a
plaintiff had made a good faith effort to serve that forum defendant. After carefully
considering the plaintiff’s argument, I conclude that the language of Section
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1441(b)(2) is unambiguous and did not prevent removal because at least one nonforum defendant (Boeing) had been served, but the sole forum defendant (Pacheco),
had not been served at the time of Boeing’s removal.
I.

Background
Rogers filed this MHRA case in Missouri state court on June 28, 2013. Three

days later, the court issued summonses for each of the two defendants. A process
server attempted to serve Pacheco on July 2, 2013, but a typo in his address prevented
successful service. A week later, before the typo was corrected, Boeing was served.1
Seventeen days after that – still before Pacheco was served – Boeing removed the
case to this court. Boeing relied on diversity of citizenship as its sole ground for
federal subject-matter jurisdiction. Rogers is a citizen of Illinois; Pacheco is a citizen
of Missouri; and Boeing is a citizen of Oklahoma and Delaware. The citizenship of
the parties is not disputed, nor is the fact that complete diversity exists.
After removal, Rogers successfully served Pacheco at his correct address.
II.

Discussion
Under 28 U.S.C. § 1332(a), federal courts have original jurisdiction over cases

where the parties are completely diverse and the amount in controversy exceeds

1

Although there is no return of process in the state or federal court files, Boeing states that it was
served on July 8, 2013, and plaintiff Rogers does not refute this assertion.

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$75,000.2 See OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir.
2007). A defendant normally may remove an action from state court to federal court
if the federal court would have had original jurisdiction over the action. 28 U.S.C. §
1441; see also In re Bus. Men’s Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993)
(party seeking removal bears burden of establishing federal subject-matter
jurisdiction). But the power to remove is subject to an exception known as the forum
defendant rule, which is codified at 28 U.S.C. § 1441(b)(2). That exception prohibits
a defendant from removing a diversity action if any of the defendants “properly
joined and served” is a citizen of the state in which the action was brought. Id.; see
also Horton v. Conklin, 431 F.3d 602, 604 (8th Cir. 2005). The forum defendant rule
is jurisdictional and cannot be waived. Horton, 431 F.3d at 605.
In this case, the parties dispute the meaning of the “joined and served”
language in 28 U.S.C. § 1441(b)(2). Arguing against remand, defendant Boeing
points out that Pacheco, the forum defendant, was not served at the time of removal.
Boeing contends that under its plain language, Section 1441(b)(2) is therefore no bar
to removal. Rogers responds that this is an “excessively literal” reading of the
statute. Instead, she urges the court to look at the purpose behind the “joined and
served” language, which she contends is to prevent a plaintiff from joining a forum
defendant it does not intend to serve in an effort to avoid federal court. Since there is
2

The amount in controversy is not at issue in this case.

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no evidence that she was engaging in any such gamesmanship, Rogers argues remand
is appropriate. According to Rogers, interpreting the statute as written would lead to
an absurd result where federal jurisdiction depends on the timing or sequence of
service of the defendants.
Rogers is not alone in this perspective. The federal district courts are
profoundly split over the proper interpretation of the “joined and served” language of
Section 1441(b)(2). All in all, the courts appear to have adopted three different
positions in removed cases where a forum defendant has been sued but not yet
served: that remand is always appropriate, that it is never appropriate, or that it
appropriate only if the plaintiff has not yet served any defendant.3 The third
approach, while more nuanced, is properly derived from the plain language of the
statute, and I will adopt it here.
“In the usual case, if [a] statute’s language is plain, the sole function of the
courts is to enforce it according to its terms, without reference to its legislative
history.” Owner-Operator Indep. Drivers Ass’n v. United Van Lines, LLC, 556 F.3d
690, 693 (8th Cir. 2009) (internal quotation marks omitted) (quoting United States v.

3

For example, compare Walborn v. Szu, No. 08-6178, 2009 WL 983854, at *1 (D.N.J. Apr. 7,
2009) (remanding despite lack of tactical “gamesmanship” by defendant); Muchel v. Wyeth, LLC,
No. 12-906, 2012 WL 4050072, at *3 (D. Del. Sept. 11, 2012) (denying remand as contrary to plain
language of Section 1441(b)(2) though plaintiff had not yet served any defendant); and Hawkins v.
Cottrell, 785 F. Supp. 2d 1361, 1369 (N.D. Ga. 2011) (reading plain language of Section 1441(b)(2)
to require remand in case where defendant removed before service to any defendant).

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Ron Pain Enter., Inc., 489 U.S. 235, 241 (1989)). The Eighth Circuit has identified
two narrow exceptions to this general principle: first, if the plain text of a statute
“produces a result demonstrably at odds with the intentions of its drafters,” and
second, if a “scrivener’s error” produces an “absurd result.” Id. A result that is
“anomalous” or somewhat illogical is not necessarily absurd. Id.
Here, the statute provides:
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 State in which such action is brought.
28 U.S.C. § 1441(b)(2). The statute’s language is clear and unambiguous: only the
citizenship of parties in interest “properly joined and served as defendants” is at issue.
If a party has not been both joined and served, the fact that it is a citizen of the forum
state will not prevent removal. See Follette v. Wal-Mart Stores, Inc., 47 F.3d 311,
313 (8th Cir. 1995) (a statute written in the conjunctive means the “two conditions
must be met in order to fall within its language”). Most, if not all, the federal district
courts examining this issue have agreed that this phrase is clear. It is over the
application of the exceptions to the plain-language rule that they diverge.
I will consider the “unintended result” exception first. As the United States
Supreme Court and the Eighth Circuit have held repeatedly, there must be some
compelling indication of the drafters’ contrary intent in order to contravene the plain
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text of a statute. See, e.g., Demarest v. Manspeaker, 498 U.S. 184, 190–91 (1991);
United States v. South Half of Lot 7 & Lot 8, Block 14, 910 F.2d 488, 489–90 (8th
Cir. 1990). In this case, there is no legislative history whatsoever on the addition of
the “properly joined and served” language to Section 1441(b)(2). See Sullivan v.
Novartis Pharm. Corp., 575 F. Supp. 2d 640, 644 (D.N.J. 2008) (“The court has been
able to locate neither a specific statement from Congress nor from the advisory
Committee . . . regarding the addition of the ‘properly joined and served’ language.”);
accord Hawkins, 785 F. Supp. 2d at 1369 (“legislative history on the purpose behind
the joined and served requirement is conspicuously lacking”).
Several courts, however, have remanded based in part on the Supreme Court
decision in Pullman Company v. Jenkins, 305 U.S. 534 (1939). See, e.g., Sullivan,
575 F. Supp. 2d at 644; Ibarra v. Protective Life Ins. Co., No. 09CV49, 2009 WL
1651292, at *2 (D. Ariz. June 12, 2009). In that case, decided before Congress
codified the forum defendant rule and devised the “joined and served” language, the
Court held that removal of a case where any defendant was a forum citizen was
improper, even if the forum defendant had not yet been served.4 The Pullman Court
recognized that its holding might encourage improper joinder – that a plaintiff might
4

Pullman and Pecherski v. General Motors Corp., 636 F.2d 1156, 1160–61 (8th Cir. 1981), are
often cited as support in cases like this, but they are not precisely on point. In both cases, the courts
reversed denials of remand and required the district court to examine the citizenship of an unserved
forum defendant. But in both cases, the presence of the forum defendant not only violated the thenexisting forum defendant rule, but also destroyed complete diversity.

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strategically defeat removal by naming a forum defendant it does not really intend to
sue. The Court therefore left open the possibility that a federal court might assert
jurisdiction even over a forum defendant if it found that defendant had been
improperly joined.
The district courts that rely on Pullman to support remand emphasize that there
is no evidence Congress intended to reverse the Court’s holding when it codified the
forum defendant rule a decade later, in 1948. Instead, these courts assert that the
“properly joined and served” language was an attempt to suppress improper joinder.
See Sullivan, 575 F. Supp. 2d at 643 (collecting cases).
This is a plausible reading of the statute’s history. Nonetheless, it does not rise
to the level of a “clearly expressed legislative intention to the contrary” of the “joined
and served” language as it appears in Section 1441(b)(2). Consumer Product Safety
Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Without some positive
manifestation of intent behind the “joined and served” language, I cannot say that the
result – allowing an out-of-state defendant to remove an action where a forum
defendant is joined but not served – is “demonstrably at odds” with the intention of
the drafters.5

5

Although Congress amended Section 1441 in 2011, it did not change the phrase “joined and
served.” See Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112–63;
see also Howard v. Genentech, Inc., 2013 WL 680200, at *7 (D. Mass. Feb. 21, 2013) (citing H.R.
Rep. No. 112–10, at 11–16 (2011), reprinted in 2011 U.S.C.C.A.N. 576, 580, and noting that “no

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Nor can I find that grounding the operation of Section 1441(b)(2) on the timing
or sequence of service is an “absurd result.” Cf. In re Avandia Sales Practices, 624 F.
Supp. 2d 396, 410 (E.D. Pa. 2009). Post-removal joinder of a forum defendant does
not require remand so long as complete diversity is preserved. See Spencer v. U.S.
Dist. Court for the N. Dist. of Cal., 393 F.3d 867, 871 (9th Cir. 2004); accord Devore
v. Transp. Tech. Corp., 914 F. Supp. 355, 357 (W.D. Mo. 1996). Although it may be
somewhat arbitrary or “anomalous,” it is not absurd for post-removal service to
produce the same result.
The district courts that hold otherwise have often been responding to cases
rather different than this one. In more egregious cases, 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. See, e.g., Perez v. Forest Labs., Inc., 902 F.
Supp. 2d 1238, 1246 (E.D. Mo. 2012). Furthermore, in some states, court processing
of new complaints does not permit same-day service of process, so there is no way
for plaintiffs to avoid this result. See Ethington v. Gen. Elec. Co., 575 F. Supp. 2d
855, 857 (N.D. Ohio 2008). In this case, like in those actions where a plaintiff seeks
to amend her complaint to add a forum defendant after removal, the plaintiff had
mention of the ‘properly joined and served’ language was made in the available legislative history
of the 2011 Act, nor was the substantial disarray among the district courts discussed.”); Stefan v.
Bristol-Myers Squibb Co., 2013 WL 6354588, at *1 (D. Del. Dec. 6, 2013) (“when the cases send a
mixed message, there is no way of knowing which judicial interpretation of the statute Congress
intended to adopt”).

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control over the prosecution of her complaint – including the timing and sequence of
service – and could have chosen to do things differently. Therefore, reading the
“joined and served” language as it was written does not lead to an absurd result.
Because neither of the exceptions apply, my sole function is to enforce Section
1441(b)(2) according to its terms. The “joined and served” language – which
comprises only a small part of the statute – must be read in conjunction with the rest
of the provision in which it resides. See Cody v. Hillard, 302 F. 3d 767, 776 (8th
Cir. 2002) (“courts should not interpret one provision in a manner that renders other
sections of the same statute inconsistent, meaningless, or superfluous”). Several
courts have looked carefully at Section 1441(b)(2) as a whole and concluded that the
plain language contemplates removal only where at least one defendant had been
served. See Hawkins, 785 F. Supp. 2d at1369; Howard, 2013 WL 680200, at *5; FTS
Int’l Servs., LLC v. Caldwell-Baker Co., No. 13CV2039, 2013 WL 1305330, at *3
(D. Kan. Mar. 27, 2013); R & N Check Corp. v. Bottomline Tech., Inc., No.
13CV118, 2013 WL 6055233 (D.N.H. Nov. 15, 2013). In 2011, Congress modified
the syntax of Section 1441(b)(2), transforming the section from a list of requirements
for removal to an exception to removability. But the operative language remains the
same.6 Before the 2011 amendment:

6

The pre-2011 version of Section 1441(b)(2) provided that a diversity action “shall be removable
only if none of the parties in interest properly joined and served as defendants is a citizen of the

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Section 1441(b) provided that a “[diversity] action shall be removable
only if none of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is brought.”
When functioning as a pronoun, which “none” does in section 1441(b), it
means “not any.” Webster’s Third New International Dictionary 1536
(3d ed. 1986). “Any,” in turn, means “one or more indiscriminately
from all those of a kind.” Id. at 97. Inherent in the definition is some
number of the “kind” from which the “one or more” can be drawn.
Accordingly, the use of “none” and definite article “the” when referring
to “parties” assumes that there is one or more party in interest that has
been properly joined and served already at the time of removal, among
which may or may not be a forum-state defendant.
Howard, 2013 WL 680200, at *5.
This reading does justice to the plain language of Section 1441(b)(2) without
incentivizing pre-service removal as a tactical strategy by a “nimble non-forum
defendant.” Howard, 2013 WL 680200, at *8. As the Howard court concluded,
under the plain language of Section 1441(b)(2), “plaintiffs legitimately seeking to
join a forum defendant face the modest burden of serving that defendant before any
others.” In this case, Rogers did not meet that burden. For that reason, remand is not
appropriate.
III.

Conclusion
Under 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

State in which such action is brought.” Now, the statute provides that a diversity action “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.”

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defendant – has been served. In this case, Boeing properly removed after it was
served but before forum defendant Pacheco had been served. Because its removal
satisfied Section 1441(b)(2) and the other requirements of diversity jurisdiction,
remand will be denied.
IT IS HEREBY ORDERED that plaintiff’s motion to remand [#14] is denied.
This case will be set for a Rule 16 scheduling conference by separate order.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 31st day of March, 2014.

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