United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT
Debbie Francis moves to remand this case to the State Court
of Bibb County, Georgia. Doc. 6. For the reasons stated
herein, that motion is DENIED.
the surviving spouse of Arthur Francis and an Ohio citizen,
filed this wrongful death action on October 10, 2017 in the
State Court of Bibb County, Georgia against Defendants Great
West Casualty Company, a Nebraska citizen; Dunavant Sea Lane
Express, LLC, a Tennessee citizen; and Carlton Kiser, a
Georgia citizen. Doc. 6-2 at 2-3. On November 2, 2017,
Defendants Dunavant and Great West removed to this Court.
Doc. 1. Defendant Kiser was not served until November 8,
2017, six days after Defendants Dunavant and Great West filed
the notice of removal. Docs. 6-1 at 2; 6-2. Francis now moves
to remand the case to the State Court of Bibb County,
Georgia, arguing that removal is improper under 28 U.S.C.
§ 1441 because one of the Defendants is a resident of
Georgia. Doc. 6 at 1.
28 U.S.C. § 1441(b), a case pending in state court may
be removed to a federal district court if, at the time of
removal, that court has diversity jurisdiction pursuant to
§ 1332(a). See 28 U.S.C. § 1441(a)
(stating a civil action may be removed to the district court
“embracing the place where such action is
pending” (emphasis added)); 28 U.S.C. §
1442(a) (stating a civil or criminal action may be removed to
district court “embracing the place wherein it is
pending” (emphasis added)); 28 U.S.C. §
1443 (similar to language of § 1442(a)). However, under
§ 1441(b)(2), also known as the forum-defendant rule,
“[a] civil action otherwise removable solely on the
basis of the jurisdiction under section 1332(a) . . . 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.” (emphasis
diversity of citizenship jurisdiction exists because all
parties are diverse- Defendant Kiser is a resident of
Georgia; Defendant Dunavant is a resident of Tennessee;
Defendant Great West is a resident of Nebraska; and Francis
is a resident of Ohio-and the amount in controversy exceeds
$75, 000. Doc. 13 at 2-3. Francis does not dispute that, at
the time of removal, the case was pending in state
court and only the nonresident defendants, Great
West and Dunavant, had been joined and served.
Francis contends that, because Defendant Kiser is a citizen
of Georgia, the forum state, the case is not removable under
§ 1441(b)(2). However, the plain language of the statute
does not support Francis's argument. At the time of
removal, Francis had not yet perfected service on Kiser.
Thus, there was no “properly joined and
served” resident defendant, at that time, to render the
case non-removable. 28 U.S.C. § 1441(b)(2) (emphasis
added). Accordingly, under the plain language of the statute,
remand is not required. However, Francis also argues that
allowing removal under these circumstances (1) contravenes
the purpose of the forum-defendant rule and (2) “would
encourage gamesmanship with regard to service of process on
the part of similarly situated defendants in future
cases.” Doc. 6-1 at 5.
rightly points out that the rationale behind the
forum-defendant rule is that, when a defendant is a resident
of the forum state, the justification for diversity
jurisdiction and removal, which is to protect defendants from
unfair prejudice in a state forum, is not present. See
Hawkins v. Cottrell, 785 F.Supp.2d 1361, 1372 (N.D.Ga.
2011). She therefore argues allowing removal by a nonresident
defendant based on the timing of service upon the forum
defendant undermines the stated purpose of the
forum-defendant rule. Although the Eleventh Circuit has not
addressed this issue, other courts have found, where there is
complete diversity, that removal by a nonresident defendant
prior to service of a forum defendant is not contrary to
congressional intent. See, e.g., Gibson v.
Wal-Mart Stores East, LP, 2010 WL 419393, at *2-4 (M.D.
Ga. 2010) (quoting Wensil v. E.I. Dupont de Nemours and
Co., 792 F.Supp. 447, 448-49 (D.S.C.1992) (“The
statute is clear. The presence of unserved resident
defendants does not defeat removal where complete diversity
exists.”)); Masterson v. Apotex, Corp., 2008
WL 2047979, at *2 (S.D. Fla. 2008) (“[T]his Court
agrees with the decisions concluding that § 1441(b) as
amended limits looking only at ‘properly joined and
served' defendants at the time of removal where diversity
jurisdiction is not an issue.”); see also Hawkins
v. Cottrell, 785 F.Supp.2d 1361, 1373 (N.D.Ga. 2011)
(“Allowing removal by an out-of-state defendant when a
forum defendant is unserved does not defeat the forum
defendant rule and thus does not necessarily lead to an
absurd result.”); Holmstrom v. Harad, 2005 WL
1950672, at *2 (N.D.Ill. 2005) (“The ‘joined and
served' requirement makes sense, then, when one defendant
has been served but the named forum defendant has not. After
all, a plaintiff should not be able to prevent a served
defendant from removing simply by naming, but not serving, a
forum citizen as a defendant.”). Moreover,
Francis's argument overlooks the plain language of §
1441(b)(2), which, again, states that removal is improper
only when a resident defendant has been joined and
served at the time of removal.
the potential for “gamesmanship” does not render
removal improper here either. Francis argues that denying
remand in this circumstance would encourage “savvy
corporate defendants [to] monitor courts' electronic
dockets and file notices of removal prior to service upon the
forum defendant, even where there is hardly any delay [in
serving] the resident defendant.” Doc. 6-1 at 5.
However, one person's “gamesmanship” is
strategy to another. In fact, Georgia state law, in
conjunction with the forum-defendant rule, protects a
plaintiff from such gamesmanship by allowing a plaintiff to
be “master of her complaint” and ensure that a
case remains in state court through strategy (or
gamesmanship) of her own. As discussed, a case is not pending
under Georgia law, and therefore cannot be removed, until the
plaintiff perfects service of process. See Steve A.
Martin Agency, Inc. v. PlantersFIRST Corp., 297 Ga.App.
780, 781, 678 S.E.2d 186, 188 (2009); Jenkins v.
Crea, 289 Ga.App. 174, 656 S.E.2d 849, 850 (2008);
see also Hawkins, 785 F.Supp.2d at 1371. Therefore,
a defendant could not remove a case simply by monitoring an
electronic docket; rather, whether a case becomes removable
is dependent on a plaintiff's actions in perfecting
service. So, a plaintiff can wield the forum-defendant rule
to her own benefit by serving the resident defendant first,
making the case non-removable because the resident defendant
would be “joined and served” before a nonresident
defendant could remove the case. Thus, denying remand under
the circumstances here does not disadvantage plaintiffs in
the manner Francis alleges.
Francis's motion to remand (Doc. 6) is