Lack of Service on Forum Defendants Fails to Defeat Removal Due to Diversity Jurisdiction U.S. District Court for the Eastern District of Louisiana, September 30, 2017
LOUISIANA — The plaintiffs originally filed their petition in the Civil District Court for the Parish of Orleans, State of Louisiana, after William Leech died of mesothelioma. The plaintiffs were residents of Arizona and named numerous defendants, including three who were Louisiana residents. Nine days after the petition was filed, and before any other defendants were served, defendant Honeywell International removed the action to federal court on the basis of diversity jurisdiction, which was uncontested.
The decedent was a construction engineer who alleged asbestos exposure at various work sites in various states from 1965-92. The plaintiffs filed a Motion to Remand arguing two points: 1) the presence of the three Louisiana defendants in the matter defeated removal under the forum defendant rule, pursuant to 28 U.S.C. § 1441; 2) all defendants did not consent to the removal, in violation of the rule of unanimity, pursuant to 28 U.S.C. § 1446. Honeywell cited to four decisions in the Eastern District of Louisiana wherein the court denied motions to remand where a forum defendant had not been served at the time of removal, and the plaintiffs failed to distinguish this case from precedent.
The court analyzed the forum defendant rule and noted that the statute requires that removal be defeated “if any of the parties properly joined and served as defendants is a citizen of the State in which the action is brought.” (emphasis added). Citing precedent from the Eastern District of Louisiana, the court held that removal was proper, even if a forum defendant was named, so long as it effected before the forum defendant was served with process. Similarly, the court rejected the plaintiffs’ argument that the rule of unanimity required remand, because the statute requires consent only from those defendants who have been served. The court stated that the plaintiffs’ interpretations of the two applicable statutes ignored the words drafted by Congress. The court stated: “…the plain language of the rule of unanimity requires that only those defendants who have been served must join in or consent to removal.”