Tillman v. BNSF Ry. Co.
| Decision Date | 05 March 2021 |
| Docket Number | Case No. 1:20 CV 00178 SNLJ |
| Parties | RICKY L. TILLMAN, JR., surviving son of Ricky L. Tillman, Sr., deceased, Plaintiff, v. BNSF RAILWAY CO., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Plaintiff Ricky Tillman, Jr., sued defendants BNSF Railway Company, Donald Handy, and Titusan Townsend in Missouri state court under Missouri's wrongful death statute. Two days after plaintiff filed suit, defendant BNSF removed the case to this Court solely based on diversity jurisdiction. See 28 U.S.C. §§ 1332(a), 1441(a). Plaintiff moved to remand, asserting two defendants are citizens of Missouri, the forum state, and not all defendants consented to removal. This Court will deny plaintiff's motion.
This action arises from a collision between a motor vehicle and a train in which plaintiff's father was killed. Plaintiff alleges defendant BNSF owned and operated the railway; defendant Handy, a BNSF employee, operated the train at the time of the collision; and defendant Townsend drove the vehicle involved in the collision, in which plaintiff's father was a passenger. Defendant Townsend is deceased.
Plaintiff filed suit against defendants in the circuit court of Pemiscot County, Missouri, on August 19, 2020. That same day, he filed a motion for appointment of attorney Walter Bley as defendant ad litem to act in defendant Townsend's place. See § 537.021.1(2) RSMo. The next day, August 20, Bley filed a consent to serve as defendant ad litem, an entry of appearance, and a waiver of service.
On August 21, defendant BNSF filed a notice of removal based on diversity jurisdiction, alleging plaintiff is a citizen of Arkansas; defendant BNSF is a citizen of Texas and Delaware; defendant Handy is believed to be a citizen of Missouri; and defendant Townsend was believed to be a citizen of Missouri at the time of his death. Defendant BNSF also alleged that the amount in controversy exceeds $75,000, which plaintiff does not dispute; and, that the "forum defendant rule" does not bar removal of the action because the forum defendants had not yet been served, which plaintiff does dispute. Sometime later that same day, the circuit court filed an order appointing Bley as defendant ad litem for Townsend. In the record, that appointment order appears to have a date stamp of August 21, 2020, but it does not have a time stamp. The parties agree the circuit court filed the appointment order after defendant BNSF filed its notice of removal.
Once the case was removed, this Court granted plaintiff's motion to appoint Bley as defendant ad litem for Townsend. Plaintiff moved to remand the case. Bley filed a waiver of service and his own motion to remand, stating he did not consent to removal. Then, Bley filed an application to substitute a different attorney as defendant ad litem for Townsend. This Court granted the substitution. The new defendant ad litem withdrewBley's motion to remand and filed a consent to removal. The record does not indicate defendant Handy has been served with plaintiff's petition.
Defendant removed this case based solely on diversity jurisdiction. See 28 U.S.C. § 1332(a)(1) (). Plaintiff filed a timely motion to remand under 28 U.S.C. § 1441(b)(2): "A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title 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." See also id. § 1447(c) (); Holbein v. TAW Enters., Inc., 983 F.3d 1049, 1053 (8th Cir. 2020) (en banc) ().
Plaintiff argues section 1441(b)(2), the "forum defendant" rule, bars defendant BNSF from removing the case because defendants Handy and Townsend are citizens of Missouri. BNSF does not dispute Handy and Townsend are citizens of Missouri. Rather, BNSF argues neither Handy nor Townsend had been "properly joined and served" before BNSF removed the case and thus section 1441(b)(2) does not apply.
As the party seeking removal, defendant BNSF bears the burden of showing removal is proper. See, e.g., Llanos v. Delta Air Lines, Inc., 2020 WL 635477 (C.D. Cal.Feb. 11, 2020) (slip copy) (in a forum-defendant-rule case, a "'defendant always has the burden of establishing that removal is proper'" (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992))); Bowman v. PHH Mortg. Corp., 423 F.Supp.3d 1286, 1289 (N.D. Ala. 2019) (same). "Federal courts are to resolve all doubts about federal jurisdiction in favor of remand and are strictly to construe legislation permitting removal." Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007) (quotation marks omitted). But when a federal court does have jurisdiction over a case properly before it, it has a "virtually unflagging obligation to exercise it." Holbein, 983 F.3d at 1060 (quotation marks omitted).
"When construing the terms of a statute, we begin with its plain language." Dahl, 478 F.3d at 969. Section 1441(b)(2) states a case may not be removed based on diversity jurisdiction "if any of the parties in interest properly joined and served as defendants" is a citizen of the forum state. While the statute plainly does not allow removal once a forum defendant has been properly served, courts are divided about the permissibility of this type of "snap removal," where a defendant removes a case before the plaintiff has a chance to serve the forum defendant.
This district has taken three different approaches: (1) permitting snap removals based on the plain language of the statute, see, e.g. Johnson v. Precision Airmotive, LLC, 2007 WL 4289656 at *5-6 (E.D. Mo. Dec. 4, 2007) (unreported); (2) remanding snap removals because they are inconsistent with the legislative intent behind the forum defendant rule and the purposes of removal, see, e.g., Hensley v. Forest Pharm., Inc., 21F.Supp.3d 1030, 1035-36 (E.D. Mo. 2014); and, (3) allowing snap removals only when at least one defendant has been served, based on a construction of the word "any" in section 1441(b)(2), see, e.g., Rogers v. Boeing Aerospace Ops., Inc., 13 F.Supp.3d 972, 977-78 (E.D. Mo. 2014). In conducting its analysis, this Court is mindful that the Eighth Circuit recently overruled its prior precedent, which held the forum defendant rule was jurisdictional; now, it has joined other circuits in holding violation of the forum defendant rule is a non-jurisdictional defect. See Holbein, 983 F.3d at 1053.
The Eighth Circuit has not addressed the propriety of "snap removal." Other circuits have concluded section 1441(b)(2)'s plain language allows for removal until a forum defendant has been served. See Texas Brine Co., LLC v. Am. Arbitration Ass'n, Inc., 955 F.3d 482, 485-87 (5th Cir. 2020) (); Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 705-06 (2d Cir. 2019) (); Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 152-54 (3d Cir. 2018) ().
Although the results of such a reading may seem inconsistent with the apparent spirit of the statute, the "Supreme Court has stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Owner-Operator Indep. Drivers Ass'n v. Supervalu, Inc., 651 F.3d 857, 862 (8th Cir. 2011) (internal quotation omitted). As a result, and because this Court must follow the plain, unambiguous words of a statute, see id., this Court agrees with the reasoning of the Second, Third, and Fifth Circuits and concludes that if no forum defendant was "properly joined and served" before removal, section 1441(b)(2) does not preclude removal.
This reading does not require that at least one defendant has been served before a case may be removed. See Gibbons, 919 F.3d at 705-06 (). Neither the removal statutes nor the case law suggests that a defendant must have been served itself before it can remove a case. See, e.g., id.; Encompass, 902 F.3d at 152-54 (); Taylor v. Cottrell, Inc., 2009 WL 1657427 at *2 (E.D. Mo. June 10, 2009) (unreported) (collecting cases and explaining "as courts have recognized, nothing in 28 U.S.C. § 1441 or any other statute requires defendants to have been served themselves prior to removing a case to federal court").
Contrary to plaintiff's argument, Pecherski v. General Motors Corporation, 636 F.2d 1156 (8th Cir. 1981), does not mandate remand. The Pecherski court did not address the forum defendant rule; rather, it addressed whether the "joined and served" language in section 1441(b)(2) extends, by implication, to expand diversity jurisdiction and allowcourts to...
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