District Court Relies on Plain Language of Forum-Defendant Rule in Denying Plaintiff’s Emergency Motion to Remand

Posted by

The plaintiff filed an asbestos-related lawsuit in Louisiana state court. Defendant Honeywell filed a notice of removal on the basis of diversity, without knowing that its registered agent in Louisiana was personally served one day before filing the removal. At the time of removal, no other defendant had been served. The plaintiff filed a motion to remand, arguing that Honeywell could not remove because one of the defendants (Burmaster) was a resident of Louisiana. The plaintiff also argued Honeywell “jumped the gun” by removing before it was served.

Honeywell argued removal was not barred by the forum-defendant rule because Burmaster was not served at the time of removal, that service was effectuated on its agent prior to removal, and that service on the removing party is not a prerequisite to removal.

The court examined whether the forum-defendant rule barred removal. An action that is otherwise removable based on diversity 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 court stated: “Based on the plain meaning of the statute then, Honeywell’s removal of this matter does not violate the forum-defendant rule. While acknowledging that Honeywell’s position has “garnered some support in other courts,” Plaintiff maintains that this Court should ignore the “and served” language of the statute…This the Court cannot do.” Further, a close review of the record showed that Honeywell was in fact served one day prior to removal. Thus, removal was procedurally proper in all respects.

Read the full decision here.