Non-Collusive Naming of Citizen of Forum as Defendant Bars Removal Even If Defendant Is Not “Properly Joined and Served” Before Removal, Despite Text of 28 U.S.C. § 1441(b) — Caselaw Split

From NFC Acquisition, LLC v. Comerica Bank, 640 F. Supp. 2d 964 (N.D. Ohio 2009):

Under 28 U.S.C. § 1441(b), federal courts have authority to exercise diversity jurisdiction 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."

Referred to as the forum defendant rule, § 1441(b) prohibits removal if the defendant is a citizen of the state in which the suit was filed. Geffen v. General Elec. Co., 575 F.Supp.2d 865, 869 (N.D.Ohio 2008). This rule reflects the belief that even if diversity exists, a forum defendant — a defendant who is a citizen of the state in which it is sued — has no reason to fear state court prejudice. Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 940 (9th Cir. 2006).

Because Hickory Hill is a forum defendant, NFC contends that § 1441(b) precludes removal.

Comerica, however, urges the court to look to § 1441(b)'s language requiring the forum defendant to be "properly joined and served." Because NFC did not perfect service of process on Hickory Hill until January 15, 2009, ninety days after Comerica filed its notice of removal, Comerica argues that Hickory Hill is not a forum defendant.

Comerica's interpretation of §1441(b) suggests that the language "properly joined and served" creates an exception to the forum defendant rule. This argument is not novel; in fact, it has been the topic of much jurisprudential debate with varying success across the country. I, however, have no need to survey such case law because the Northern District of Ohio recently rejected Comerica's argument in a case of first impression. In Ethington v. Gen. Elec. Co., 575 F. Supp. 2d 855, 861 (N.D. Ohio), my colleague, District Judge Dan Aaron Polster, engaged in a thorough review of available case law. He cited a District of New Jersey decision, DeAngelo-Shuayto v. Organon USA Inc, 2007 U.S. Dist. LEXIS 92557, 2007 WL 4365311, * 5 (D.N.J.), in which the court held that "a forum defendant cannot remove to federal court even if the forum defendant has not been 'properly joined and served.'" That court explained:

The result of blindly applying the plain 'properly joined and served' language of § 1441(b) is to eviscerate the purpose of the forum defendant rule. It creates a procedural anomaly whereby defendants can always avoid the imposition of the forum defendant rule so long as they monitor the state docket and remove the action to federal court before they are served by the plaintiff . . . a literal interpretation of the provision creates an opportunity for gamesmanship by defendants, which could not have been the intent of the legislature in drafting the 'properly joined and served' language.

Id. After considering the conflicting case law, Judge Polster "join[ed] the DeAngelo-Shuayto line of cases, and in so doing, the Court incorporate[d] and adopt[ed] the well-reasoned, thorough analysis and holdings of Judge Chesler in DeAngelo-Shuayto as the basis for the instant ruling." Ethington, supra, 575 F.Supp.2d at 864.

[Footnote 3] In reaching my decision on the forum defendant issue, I am mindful of the dicta in McCall v. Scott, 239 F.3d 808, n. 2 (6th Cir. 2001), in which the court stated, "[w]here there is complete diversity of citizenship . . . the inclusion of an unserved resident defendant in the action does not defeat removal under 28 U.S.C. § 1441(b)." As dictum, this statement is without precedential effect. See Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 17, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003) ("Dicta of course have no precedential value."); Williams v. Anderson, 460 F.3d 789, 796 (6th Cir.2006) (holding that dicta is not binding precedent). I am persuaded by Judge Polster's well-reasoned and thorough opinion in Ethington to follow the course he has taken, rather than the dictum in McCall.

Comerica contends that Ethington is distinguishable because it refers to pharmaceutical defendants. I, however, see nothing in Ethington which limits its holding to pharmaceutical defendants.

Comerica also distinguishes Ethington on the basis that a forum defendant filed for removal, whereas here, a non-forum defendant filed for removal. Nothing in the text of § 1441(b), however, makes the forum defendant rule dependent on which defendant filed for removal.

In accordance with Ethington, I reject Comerica's argument that Hickory Hill's untimely service of process supports its removal petition. See also Pullman Co. v. Jenkins, 305 U.S. 534, 541, 59 S. Ct. 347, 83 L. Ed. 334 (1939) ("the fact that the resident defendant has not been served with process does not justify removal by the non-resident defendant"); Finley v. Higbee Co., 1 F.Supp.2d 701, 703 (N.D. Ohio 1997) ("case law supports the proposition that the failure to serve a defendant who would defeat diversity does not permit a court to ignore that defendant in determining the propriety of removal.") (internal citations omitted).