Travers v. Five Below, Inc. et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion to remand [Doc. # 9 ] is denied.. Signed by District Judge Carol E. Jackson on 6/29/17. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
FIVE BELOW, INC., and
Case No. 4:17-CV-1274 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to remand the action to
the state court from which it was removed. Defendant Five Below, Inc. has filed a
response in opposition. All issues are fully briefed.
On March 1, 2017, plaintiff initiated this action in the Circuit Court of St.
Louis County, Missouri, asserting a claim of employment discrimination in violation
of the Missouri Human Rights Act, Mo. Rev. Stat. §§ 213.010, et seq.
claims that the defendants terminated her employment at defendant Five Below’s
retail store because of her race. Plaintiff alleges that she is a citizen of Illinois, that
Five Below is a citizen of Pennsylvania, and defendant Alice Hoeltzer is a citizen of
Five Below received service of process on March 13, 2017, and removed the
action to this Court on April 7, 2017, invoking jurisdiction based on diversity of
citizenship, 28 U.S.C. § 1332(a). In the instant motion plaintiff argues that because
Hoeltzer is a Missouri citizen this case should be remanded pursuant to the forum
defendant rule, 28 U.S.C. § 1441(b)(2).
Five Below opposes remand, asserting
that Hoeltzer has not been “properly joined and served,” as required by §
“A defendant may remove a state law claim to federal court only if the action
originally could have been filed there.” In re Prempro Prods. Liab. Litig., 591 F.3d
613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir.
2005)). The removing defendant bears the burden of establishing federal
jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy Coll., 420
F.3d 763, 768 (8th Cir. 2005). “All doubts about federal jurisdiction should be
resolved in favor of remand to state court.” In re Prempro, 591 F.3d at 620 (citing
Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007)). A case must be
remanded if, at anytime, it appears that the district court lacks subject-matter
jurisdiction. 28 U.S.C. § 1447(c); Fed. R. Civ. P. 12(h)(3).
Diversity of citizenship jurisdiction under 28 U.S.C. § 1332 requires an
amount in controversy greater than $75,000 and complete diversity of citizenship
among the litigants. “Complete diversity of citizenship exists where no defendant
holds citizenship in the same state where any plaintiff holds citizenship.” OnePoint
Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007).
The “forum defendant” rule—set forth in 28 U.S.C. § 1441(b)(2)—imposes an
additional restriction on the removal of diversity cases. Specifically, the statute
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.
The parties contest the appropriate application of the forum defendant rule.
Plaintiff contends that under Eighth Circuit precedent “the forum defendant rule [is]
jurisdictional,” and therefore “district courts within the Eighth Circuit must consider
a yet to be served forum defendant when addressing the propriety of removal.”
[Doc. #9 at 2].1 Plaintiff cites Mikelson v. Allstate Fire Casualty Insurance Company
No. 16-01237-CV-W-RK, 2017 WL 634515 (W.D. Mo. Feb. 16, 2017), Roberts v.
ITT Technical Institute, No. 16-00030-CV-W-ODS, 2016 WL 1179208 (W.D. Mo.
Mar. 24, 2016), and Bailey v. Monsanto Company, 176 F. Supp. 3d 853 (E.D. Mo.
2016) to support her argument.
Five Below argues that removal was proper under the plain language of 28
U.S.C. § 1441. In particular, Five Below insists that plaintiff’s invocation of the
forum defendant rule is improper, as plaintiff (1) made no attempt to serve
defendant Hoeltzer, (2) “never even requested issuance of a summons,” (3)
instructed the state court to “hold service,” and (4) has not issued “any discovery
requests,” for that information.2 [Doc. #12 at 2 (internal formatting omitted)]. Five
Below also states that it waited twenty-five days after receiving service to remove
to federal court, and therefore did not “hawk” the docket. Id. (citing Rogers v.
Boeing Aerospace Operations, Inc., 13 F. Supp. 3d 972, 977 (E.D. Mo. 2014)). Five
Below contends that these factors distinguish this case from those cited by plaintiff.
Plaintiff states that she intends to serve Hoeltzer’s after obtaining her address through
discovery from Five Below.
Five Below does not argue that defendant Hoeltzer was improperly joined or fraudulent
In the Eighth Circuit, a violation of the forum defendant rule introduces a
jurisdictional defect and not “‘a mere procedural irregularity capable of being
waived.’” Horton v. Conklin, 431 F.3d 602, 605 (8th Cir. 2005) (quoting Hurt v.
Dow Chem. Co., 963 F.2d 1142, 1146 (8th Cir. 1992)). And the substance of this
rule mandates that a defendant may remove a case “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.” Perez v. Forest Labs., Inc., 902 F. Supp. 2d 1238, 1241
(E.D. Mo. 2012) (citing Lincoln Prop. Co. v. Roche, 546 U.S. 81, 90 (2005); Horton,
431 F.3d at 604)). The forum defendant rule springs from the logic that the
presence of an in-state defendant negates the need for protection from local biases,
even in multi-defendant cases. Perez, 902 F. Supp. 2d at 1242. Critically, the
“joined and served” language provides a safety valve for the rule: it “prevent[s]
plaintiffs from joining, but not serving, forum defendants to block removal.” Id. at
There is “much disagreement on whether to invoke the forum defendant rule
in cases of pre-service removal.” Boschert v. Wright Med. Grp., Inc., No. 4:15-CV00211 (AGF), 2015 WL 1006482, at *2 (E.D. Mo. Mar. 6, 2015). And because
remand orders are generally unappealable, the Eighth Circuit has not resolved the
discord. See 28 U.S.C. § 1447(d); Johnson v. Emerson Elec. Co., No. 4:13-CV-1240
(JAR), 2013 WL 5442752, at *3 (E.D. Mo. Sept. 30, 2013). In large part, the
different views expressed by the courts arise from tension between the plain text of
28 U.S.C. § 1441(b)(2) and its presumed purpose; that friction is only compounded
by the holding of Horton in which the Eighth Circuit reaffirmed the jurisdictional
nature of the rule.
One oft-invoked approach involves strict adherence to the plain language of
28 U.S.C. § 1441(b)(2), resulting in the denial of remand in cases with unserved
forum defendants. See, e.g., Johnson, 2013 WL 5442752, at *4; Terry v. J.D.
Streett & Co., No. 4:09-CV-1471 (FRB), 2010 WL 3829201, at * 2 (E.D. Mo. Sept.
23, 2010); Taylor v. Cottrell, Inc., No. 4:09-CV-536 (HEA), 2009 WL 1657427, at
*2 (E.D. Mo. June 10, 2009); Brake v. Reser’s Fine Foods, Inc., No. 4:08-CV-1879
(JCH), 2009 WL 213013 (E.D. Mo. Jan. 28, 2009); Johnson v. Precision Airmotive,
LLC, No. 4:07-CV-1695 (CDP), 2007 WL 4289656, at *3–4 (E.D. Mo. Dec. 4, 2007).
Among the reasons provided for these decisions, is the Eighth Circuit’s prescription
that “[w]hen the language of the statute is plain, the inquiry also ends with the
language of the statute, for in such instances the sole function of the courts is to
enforce [the statute] according to its terms.” United States v. Union Elec. Co., 64
F.3d 1152, 1165 (8th Cir. 1995) (internal quotation marks and citations omitted).
Other decisions have seized upon the Eighth Circuit’s exceptions to the plain
language rule–where a scrivener’s error produces an absurd result or where the
plain text leads to a result at odds with the drafters’ intent. See Hensley v. Forest
Pharm., Inc., 21 F. Supp. 3d 1030, 1035 (E.D. Mo. 2014) (citing Owner-Operator
Indep. Drivers Ass’n v. United Van Lines, LLC, 556 F.3d 690, 693–94 (8th Cir.
2009)). In accordance with this premise, district courts have carved out exceptions
to the “joined and served,” language, deeming their analysis the “congressional
intent” approach. See, e.g., Mikelson, No. 16-01237-CV-W-RK, 2017 WL 634515, at
*4 (W.D. Mo. Feb. 16, 2017). Some courts only apply this exception in so-called
“egregious” cases of docket hawking. See Rogers v. Boeing Aerospace Operations,
Inc., 13 F. Supp. 3d 972, 977–78 (E.D. Mo. 2014) (reasoning that because such
egregious behavior did not occur, the plain language of the rule applied, and
interpreting the text to mean that “an out-of-state defendant may remove a
diversity case if at least one defendant–and no forum defendant–has been served”).
This occurs when either the out-of-state or the forum defendant itself removes the
case before being served. See, e.g., Perez v. Forest Labs., Inc., 902 F. Supp. 2d
1238, 1244–45 (E.D. Mo. 2012) (noting that “a forum defendant’s pre-service
removal is a particularly egregious violation of the rationale underlying the forum
defendant rule”); Rozelle v. Reinsurance Grp. of Am., Inc., No. 4:13-CV-02417
(ERW), 2014 WL 272300, at *3 (E.D. Mo. Jan. 23, 2014); see also Prather v.
Kindred Hosp., No. 14-0828-CV-W-FJG, 2014 WL 7238089, at *4 (W.D. Mo. Dec.
17, 2014). These “egregious” cases involve behavior that “smacks more of forum
shopping by a defendant, than it does of protecting the defendant from the
improper joinder of a forum defendant that plaintiff has no intention of serving.”
Perez, 902 F. Supp. 2d at 1243.
While some “congressional intent” courts have carved a relatively narrow
exception to the forum defendant rule, others have taken a blunter instrument to
the text. Those courts reason that cases with a forum defendant should always be
remanded, without regard to service or indicators of gamesmanship from
defendants. Bailey v. Monsanto Co., 176 F. Supp. 3d 853, 866 (E.D. Mo. Mar 31,
2016); Hensley v. Forest Pharm., Inc., 21 F. Supp. 3d 1030, 1035 (E.D. Mo. 2014);
see, e.g., Mikelson v. Allstate Fire and Cas. Ins. Co., No. 16-01237-CV-W-RK, 2017
WL 634515, at *5–6 (W.D. Mo. Feb. 16, 2017); Roberts v. ITT Tech. Inst., No. 1600030-CV-W-ODS, 2016 WL 1179208, at *2 n.3 (W.D. Mo. Mar. 24, 2016)
(reasoning that gamesmanship has no bearing on the forum defendant inquiry).
Here, plaintiff filed the action in state court on March 1, 2017 and served Five
Below on March 13, 2017. Five Below removed the case within the thirty-day period
for timely removal under 28 U.S.C. § 1446(b). Accordingly, more than one month
elapsed between the initial filing of the case and removal; yet, plaintiff did not
serve Hoeltzer. Cf. Perez, 902 F. Supp. 2d at 1245 (ordering remand where the
out-of-state defendant removed the case only six days after plaintiffs filed the
complaint and before any defendant was served). Moreover, plaintiff has not shown
that she has made any attempt to locate Hoeltzer for service. Thus, no egregious
behavior or “hawking” of the electronic docket has occurred in this case. In fact, it
appears that plaintiff is engaging in procedural gamesmanship to keep the case in
state court. See Perez, 902 F. Supp. 2d at 1242–43. Therefore, although this Court
believes the plain text is decisive of this question,3 it is notable that policy purposes
underlying the “joined and served” language (to prevent procedural gamesmanship
by plaintiffs) are also well-served in this case.4
If service is properly executed upon Hoeltzer, the forum defendant, plaintiff
may file a renewed motion to remand at that time. See Hurt v. Dow Chem. Co.,
963 F.2d 1142 (8th Cir. 1992) (holding that an objection to federal court
To be sure, the application of the plain text of 28 U.S.C. § 1441(b)(2) will not always
result in perfect outcomes. But it is the prerogative of Congress to clarify its intent and to
correct any internal inconsistencies in light of modern technological developments. The
application of the plain text does not rise to the level of completely undermining the
statute’s purpose or causing absurd outcomes. And notably, “there is no legislative history
whatsoever on the addition of the ‘properly joined and served’ language to Section
1441(b)(2),” such that the Court can definitively decipher Congressional intent. Rogers v.
Boeing Aerospace Operations, Inc., 13 F. Supp. 3d 972, 976 (E.D. Mo. 2014). This is critical
considering that “there must be some compelling indication of the drafters’ contrary intent
in order to contravene the plain text of a statute.” Id.
The Court concurs with the reasoning in Rogers that Pecherski v. General Motors Corp.,
636 F.2d 1156, 1160–61 (8th Cir. 1981), is not “precisely on point,” and is limited to
diversity destroying defendants. Id. at n.4.
jurisdiction, due to the inclusion of a properly joined and served forum defendant,
cannot be waived).
IT IS HEREBY ORDERED that plaintiff’s motion to remand [Doc. #9] is
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 29th day of June, 2017.
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