In Re: Jean B. McGill Revocable Living Trust Dated June, 1996, The et al

Filing 17

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; remanding case (terminates case) ; granting 8 Motion to Remand (Documents Terminated: 10 MOTION for Leave to File Jurisdictional Discovery , 7 MOTION to Dismiss for Failure to State a Claim ) (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
IN RE:
THE JEAN B. MCGILL REVOCABLE
LIVING TRUST, DATED JUNE 28, 1996,
and THE JEAN B. MCGILL EXEMPTION
TRUST, of unknown date.

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Case No. 16-CV-707-GKF-TLW

OPINION AND ORDER
Before the court is the Motion to Remand of plaintiff Susie McRight (“McRight”) [Doc.
No. 8]. For the reasons set forth below, the motion is granted.
I. Background
This action is the latest in a series of lawsuits between the parties. Specifically, it
concerns the management and administration of the Jean B. McGill Revocable Living Trust,
dated June 28, 1996, and the Jean B. McGill Exemption Trust by defendant James C. McGill,
who is the successor trustee of the Exemption Trust. [Doc. No. 2, pp. 7 – 17]. On October 25,
2016, McRight filed a Petition in the Probate Division of the Tulsa County District Court
requesting a copy of trust documents, a determination of trust beneficiaries, an inventory and
accounting, removal of James C. McGill as trustee, denial of trustee compensation, and
appointment of a successor trustee. [Id. at 16–17]. Defendants—James C. McGill and James
Michael McGill—removed the case to this court on November 23, 2016, on the basis of diversity
jurisdiction.1 [Id. at 1–5]. McRight now moves to remand. [Doc. No. 8].

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Defendants suggest that James Michael McGill removed this action to federal court, and James
C. McGill merely joined in that removal. [Doc. No. 14, p. 11]. That characterization is not
reflected in defendants’ notice of removal—the motion is styled jointly and nothing contained
therein establishes James Michael McGill as the principal movant. [Doc. No. 2, pp. 1–5]. That
is unsurprising. Throughout this case, James C. McGill has been the primary litigant. In fact,
James C. McGill is the only defendant to have voluntarily appeared in state court through his
filing of an answer and counterclaim. [Doc. No. 2, pp. 26–42].

II. Legal Standard
Federal courts are courts of limited jurisdiction. See Dutcher v. Matheson, 733 F.3d 980,
984 (10th Cir. 2013). To that end, removal statutes are strictly construed with all doubts
resolved against removal. See Belcher v. Un. Parcel Serv., Inc., No. 09-CV-628-TCK-PJC, 2009
4612169, at *2 (N.D. Okla. Dec. 10, 2009). A defendant’s right to remove and plaintiff’s venue
privilege “‘are not on equal footing.’” See Patterson v. State Farm Mut. Auto. Ins. Co., 2009
WL 1457737, at *4 (N.D. Okla. May 21, 2009) (quoting Burns v. Windsor Ins. Co., 31 F.3d
1092, 1095 (11th Cir. 1994)). “The removing defendant bears the burden of establishing”
jurisdiction “by a preponderance of the evidence at the time of removal.” See Gable v. MSC
Waterworks Co., Inc., No.12-CV-47-CVE-PJC, 2012 WL 1118980, at *3 (N.D. Okla. Apr. 3,
2012).
III. Analysis
Here, remand is required. 28 U.S.C. § 1441(b)(2)—the “forum defendant rule”—
prohibits removal of an action on the basis of diversity jurisdiction if any defendant “is a citizen
of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2); Brazell v. Waite, 525 Fed.
App’x 878, 884 (10th Cir. 2013). The rule “recognizes that the rationale for diversity
jurisdiction” evaporates “when one of the defendants” is a forum state citizen and “the likelihood
of local bias is reduced, if not eliminated.” See Lone Mountain Ranch, LLC v. Santa Fe Gold
Corp., 988 F.Supp.2d 1263, 1266 (D.N.M. 2013) (quotation marks omitted); accord Snyder v.
Moore, No. CIV-13-1282-L, 2014 WL 11032956, at *2 (W.D. Okla. Feb. 11, 2014). Here,
James C. McGill2—a resident of Oklahoma—is a named defendant, see [Doc. No. 2, p. 2, ¶ 6]

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“When a trustee is a party to litigation, it is the trustee’s citizenship that controls for purposes
of diversity jurisdiction[.]” Conagra Foods, Inc. v. Americold Logistics, LLC, 776 F.3d 1175,
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(“James C. McGill is a resident of the State of Oklahoma.”), and it would appear that application
of the forum defendant rule is proper.
Defendants, however, argue the plain text of 28 U.S.C. § 1441(b)(2) permits removal
where, as here, forum defendants remain unserved. 3 [Doc. No. 14, p. 7–13] (quoting 28 U.S.C.
§ 1441(b)(2)). The court is unconvinced. The forum defendant rule prohibits removal where
“any of the parties properly joined and served as defendants” is an in-state citizen. See 28 U.S.C.
§ 1441(b)(2) (emphasis added). That implies some “party in interest ha[s],” in fact, “been served
prior to removal.” See Gentile v. Biogen, Inc., 934 F.Supp.2d 313, 318 (D. Mass. 2013); “Any,”
Merriam-Webster.com, Merriam-Webster, accessible at: https://www.merriamwebster.com/dictionary/any (last accessed Dec. 30, 2016) (defining “any” as “one or some”). In
this way, the absence of a properly served party “does not mean an ‘exception’ to removal is
inapplicable,” but something more fundamental—namely, that the statute “condition[s] removal
on some defendant having been served.” See Gentile, 934 F.Supp.2d at 318.
The language of 28 U.S.C. § 1441(a) confirms this reading. To qualify for removal, a
civil action must be “pending” in state court. See 18 U.S.C. § 1441(a). But in many states, a suit
is not “pending” until service has been effectuated. For instance, both Kansas and Kentucky
require issuance of a summons before the “commencement” of an action. See Kan. Stat. Ann. §
1181 (10th Cir. 2015), aff’d sub nom. 136 S.Ct. 1012, 1016 (2016) (“[W]hen a trustee . . . is sued
in [his] own name, [his] citizenship is all that matters for diversity purposes.”).
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McRight argues that defendants’ voluntary appearance in this action amounts to proper service
of process. [Doc. No. 16, pp. 1–2]. If true, the forum defendant rule undoubtedly applies. For
personal jurisdiction purposes, McRight’s position has merit. See, e.g., 12 O.S. § 2004(C)(5)
(noting a “voluntary appearance of a defendant is equivalent of service”); Howard v. United
States ex rel. Alexander, 126 F.2d 667, 668 (10th Cir. 1942) (“Jurisdiction over the defendant in
a civil suit in personam implies either his voluntary appearance or service of process upon
him[.]”); see also Morreale v. City of Cripple Creek, 113 F.3d 1246 (Table) (10th Cir. 1997).
But whether personal jurisdiction has been established appears to be a different inquiry from
whether the textual service requirements of 28 U.S.C. § 1441 have been satisfied. Accordingly,
the court continues its analysis.
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60-203; Ky. Rev. Stat. Ann. § 413.250. In other states, however, an action is “commenced” by
filing a complaint. See, e.g., Ala. R. Civ. P. 3(a); Me. Stat. tit. 14, § 533l; 12 O.S. § 2003.
Reading the removal statute to require service of some defendant ensures uniformity. Under
such a construction, the availability of a federal forum does not vary on a state-by-state basis, an
outcome that does not appear contemplated by statute. See Hawkins v. Cottrell, Inc., 785
F.Supp.2d 1361, 1371–72 (N.D. Ga. 2011).
Indeed, courts have long recognized the “historic function of service of process as the
official trigger for responsive action.” See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344, 353 (1999); accord Hawkins, 785 F.Supp.2d at 1370; Gentile, 934 F.Supp.2d at
322. In fact, under 28 U.S.C. § 1446(b), only simultaneous service of a complaint and
summons—or the receipt of a complaint after service of process—triggers a defendant’s
obligation to remove; in no case does the “mere receipt of the complaint unattended by any
formal service” suffice. See Murphy Bros., 526 U.S. at 347–48. Put simply, service of process is
“fundamental to any procedural imposition on a named defendant” under the removal statute.
See id. at 350.
Conditioning removal on service makes functional sense as well. On the one hand, the
“joined and served” requirement prevents opportunistic plaintiffs from “adding a forum
defendant solely to prevent removal.” See Lone Mountain Ranch, LLC v. Santa Fe Gold Corp.,
988 F.Supp.2d 1263, 1266 (D.N.M. 2013). On the other hand, “[p]recluding removal until at
least one defendant has been served protects against docket trolls with a quick finger on the
trigger of removal.” Gentile, 934 F.Supp.2d at 322. In this way, gamesmanship is discouraged
across the board, see id. at 316, a result which comports with the narrow construction of removal
statutes and limited constitutional role of federal tribunals, see Pritchett v. Office Depot, Inc.,

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420 F.3d 1090, 1094–95 (10th Cir. 2005). Accordingly, removal was improper because neither
defendant was served before this court assumed jurisdiction.
Alternatively, even assuming defendants’ reading is correct, strict application of 28
U.S.C. § 1441(b)(2) is inappropriate. The text of the forum defendant rule prevents removal
only where “any of the parties in interest properly joined and served” are forum state citizens.
See 28 U.S.C. § 1441(b)(2) (emphasis added). Applied here, that language would produce
“absurd results.” See Adams v. Kinder-Morgan, Inc., 340 F.3d 1083, 1099 (10th Cir. 2003).
Congress requires defendants be “joined and served” “to prevent plaintiffs from naming a local
defendant whom the plaintiff has no intention of serving or proceeding against”—i.e., fraudulent
joinder. See Gift Card Impressions v. Grp. Servs. Ltd., No. 12-CV-2766-CM, 2013 WL 568211,
at *1 (D. Kan. Feb. 13, 2013); Lone Mountain Ranch, 988 F.Supp.2d at 1266. That language
was not intended to permit hasty “snap” removals by in-state defendants prior to service. See
Gift Card Impressions, 2013 WL 568211, at *1; Visas v. Boeing Co., 486 F.Supp.2d 726, 734
(N.D. Ill. 2007); Sullivan v. Novartis Pharm. Corp., 575 F.Supp.2d 640, 647 (D.N.J. 2008); In re
Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., No. 2:12-97-DCR, 2012 WL 2919219, at
*2–3 (E.D. Ky. July 17, 2012). That is especially so where—as here—there is no risk of
fraudulent joinder. Indeed, defendants concede they are “necessary parties” to this action. [Doc.
No. 14, p. 10].
Defendants’ caselaw is not to the contrary. In the majority of the cases cited, the nonforum defendant was the removing party. See Breitweiser v. Chesapeake Energy Corp., No.
3:15-CV-2043-B, 2015 WL 6322625, at 2 (N.D. Tex. Oct. 20, 2015); Robertson v. Iuliano, No.
RDB 10-1319, 2011 WL 453618, at *2–3 (D. Md. Feb. 4, 2011); North v. Precision Airmotive
Corp., 600 F.Supp.2d 1263, 1266–68 (M.D. Fla. 2009); Stewart v. Auguillard Const. Co., Inc.,

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No. 09-6455, 2009 WL 5175217, at *1–2 (E.D. La. Dec. 18, 2009); Massey v. Cassens & Sons,
Inc., No. 05-CV-598-DRH, 2006 WL 381943, at *1 (S.D. Ill. Feb. 16, 2006); see also FTS Int’l
Servs., LLC v. Caldwell-Baker Co., No. 13-2039-JWL, 2013 WL 1305330, at *2 (D. Kan. Mar.
27, 2013) (“[D]efendant cites to a litany of cases purporting to support defendant’s position that
pre-service removal by a forum defendant is entirely appropriate but, in truth, the vast majority
of the cases cited by defendant address removal by a non-forum defendant[.]”) .4 And it was
their non-forum status that supported the courts’ exercise of jurisdiction. See, e.g., Breitweiser,
2015 WL 6322625, at *2 (“[A]llowing a nonforum defendant’s snap removal reaches neither an
absurd nor unreasonable result.”) (emphasis added). That rationale does not extend to cases, like
this one, where a forum defendant is the removing party. See id. (“[A]llowing a forum defendant
to use the language of the forum-defendant rule to circumvent [it] yields an undeniably absurd
result.”). The only conflicting case cited by defendants—Ott v. Consol. Freightways Corp. of
Del., 213 F.Supp.2d 662, 663 (S.D. Miss. 2002)—is unpersuasive. For one thing, even the Ott
court noted it was “odd and unnecessary” for a forum defendant to join in a nonforum
defendant’s removal. See id. at 666. For another, this court simply does not believe that
Congress intended to trade one form of procedural gamesmanship—fraudulent joinder—for
another—snap removal. See Lone Mountain Ranch, 988 F.Supp.2d at 1266.
Finally, defendants argue that McRight waived any objection to removal by moving to
dismiss defendant James C. McGill’s counterclaim. “[T]he forum-defendant rule is not
jurisdictional and may therefore be waived.” See Brazell v. Waite, 525 Fed. App’x 878, 884
(10th Cir. 2013). Ordinarily, waiver occurs where a plaintiff fails to object to removal within the
time period prescribed by 28 U.S.C. § 1447(c). See Patel v. Smith, No. 11-6650, 2012 WL
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Defendants’ reliance on McCall v. Scott, 239 F.3d 808, 812, n. 2 (6th Cir. 2001), is misplaced.
There, a non-forum defendant objecting to removal waived its objection via stipulation. See id.
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3020353, at *3 (E.D. Pa. July 23, 2012). But other conduct may also establish waiver. In such
cases, courts generally consider “the extent of a plaintiff’s conduct in the federal proceedings,”
see Reecher v. Capitol Indem. Corp., No. 14-CV-149-JED-FHM, 2015 WL 3693886, at *2 (N.D.
Okla. June 12, 2015) (quotation marks and citation omitted), including (1) the time spent in
federal court; (2) the use of federal processes; (3) petitions for and receipt of affirmative relief;
and (4) other actions which would make remand inequitable under the circumstances, Patel,
2012 WL 3020353, at *4. At bottom, the question is whether a plaintiff’s conduct is “‘of a sort
which would render it offensive to fundamental principles of fairness to remand.’” See
Barahona v. Orkin, No. CV 08-04634-RGK (SHx), 2008 WL 4724054, at *3 (C.D. Cal. Oct. 21,
2008) (quoting Owens v. Gen. Dynamics Corp., 686 F.Supp. 827, 830 (S.D. Cal. 1988)). The
court “has broad discretion in deciding whether” waiver has occurred. Reecher, 2015 WL
3693886, at *2.
McRight did not waive her objection here. Defendants do not dispute that McRight’s
motion to remand was timely and based, in part, on defendants’ violation of the forum defendant
rule. See Patel, 2012 WL 3020353, at *4. The case has not “advanced past the pleading stage”
to discovery, see id., and McRight has not lost a dispositive motion, see Koehnen v. Herald Fire
Ins. Co., 89 F.3d 525, 528 (8th Cir. 1996). Admittedly, McRight “did seek affirmative relief in
federal court” by seeking to dismiss counterclaim of defendant James C. McGill. See Patel,
2012 WL 3020353, at *4. But that reflects the procedural chronology of the case, not a
conscious decision by McRight to submit to federal jurisdiction. Because the counterclaim was
filed in state court prior to removal [Doc. No. 2, p. 42], McRight was required to respond within
the time limits prescribed in Fed. R. Civ. P. 81(c). Whatever the import of that filing, McRight

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timely moved for remand within two days of seeking dismissal James C. McGill’s counterclaim.
Thus, the court concludes McRight did not waive her right to object to removal.
WHEREFORE, McRight’s Motion to Remand [Doc. No. 8] is granted.
IT IS SO ORDERED, this 6th day of January, 2017.

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