United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
the court is Plaintiffs' motion to remand. Doc. 13. For
the reasons explained below, the court grants the motion to
FACTS AND PROCEDURAL HISTORY
14, 2019, Lisa and Keith Bowman filed a complaint in Alabama
state court against the following defendants: PHH Mortgage
Corporation (“PHH”), Ocwen Loan Servicing, LLC
(“Ocwen”), Altisource Solutions, Inc.
(“Altisource”), Mimsco, Inc.
(“Mimsco”), and Scott Mims (“Mims”).
Doc. 1-1 at 10. The Bowmans are both residents of Louisiana.
Id. None of the defendants is a citizen of
Louisiana, but both Mimsco and Mims are citizens of Alabama.
Doc. 10; see also doc. 1-1 at 11. The same day the
Bowmans filed their complaint, they sent formal process by
certified mail to each of the defendants. Doc. 1-1 at 8.
Ocwen (“the removing defendants”) timely filed a
notice of removal. Doc. 1. They claimed that this court has
jurisdiction over the case pursuant to 28 U.S.C. § 1332,
as the parties are completely diverse and the amount in
controversy exceeds $75, 000. Id. at 2. The Bowmans
timely moved to remand. Doc. 13.
defendant may remove a case from state court to federal
district court if the district court would have had original
jurisdiction. 28 U.S.C. § 1441(a). Original jurisdiction
includes diversity of citizenship. PTA-FLA, Inc. v. ZTE
USA, Inc., 844 F.3d 1299, 1305 (11th Cir. 2016).
Diversity jurisdiction exists if no plaintiff is a citizen of
the same state as any defendant-i.e., complete diversity-and
the amount in controversy exceeds $75, 000. 28 U.S.C. §
1332(a). In this case, there is no question that the parties
are completely diverse, and that the amount-in-controversy
requirement is satisfied. Thus, the court has original
original jurisdiction is not always enough. There are
additional hurdles to removal, two of which are relevant
here. First, when removing solely on the basis of diversity
jurisdiction, a defendant may not remove “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). Second,
“all defendants who have been properly joined and
served must join in or consent to the removal of the
action.” 28 U.S.C. § 1446(b)(2)(A). These two
hurdles are respectively known as the forum defendant rule
and the rule of unanimity.
Bowmans argue that the removing defendants violated these
rules. In brief, two of the defendants named and joined in
the complaint, Mimsco and Mims, are citizens of Alabama and
the forum defendant rule would ordinarily preclude removal
based on diversity when there are in-state defendants. Doc.
13 at 3-4. Likewise, PHH and Ocwen, the removing defendants,
did not obtain consent to remove from Mimsco, Mims, and
Altisource, which seems to contradict the rule of unanimity.
Id. at 5. The removing defendants respond that these
two rules do not apply because none of the defendants was
properly served. Doc. 1 at 3-5.
even agreeing with the removing defendants that the
plaintiffs failed to properly serve any of the defendants,
and that consequently the rule of unanimity does not apply,
the removal is still improper. The issue before the court
relates to an increasingly common litigation tactic known as
“snap removal, ” through which defendants bypass
the forum defendant rule found in § 1441(b)(2) by
removing a case before service. Delaughder v. Colonial
Pipeline Co., 360 F.Supp.3d 1372, 1377 (N.D.Ga. 2018).
The precise question is whether it violates the forum
defendant rule for out-of-state defendants to remove a case
for diversity jurisdiction, even though there are two
in-state defendants, if none of the defendants has been
beginning its analysis, the court notes that it must construe
removal statutes narrowly. Scimone v. Carnival
Corp., 720 F.3d 876, 882 (11th Cir. 2013). There is a
“presumption against the exercise of federal
jurisdiction, ” and uncertainties as to removal are
resolved in favor of remand. Id. Defendants bear the
burden of showing removal is appropriate. Id.
there is no binding precedent from the Supreme Court or the
Eleventh Circuit, this court is far from the first to grapple
with this issue. See, e.g., Gentile v. Biogen
Idec, Inc., 934 F.Supp.2d 313, 317 (D. Mass. 2013)
(collecting cases). Most courts have agreed that the meaning
of the text in § 1441(b)(2) is clear and unambiguous.
See Id. However, these courts have divided over
whether to follow the plain meaning of the text, with many
courts declining to do so, because, in their view, it
produces truly absurd results that Congress could not
possibly have intended. See id.
court adopts a different approach. An alternative
interpretation of the text suggests that the statute is more
ambiguous than other courts have supposed. So rather than
decide whether to follow the plain meaning, the court asks
which of two permissible constructions of the text best
effectuates Congress' intent. See Tenn. Valley Auth.
v. Hill, 437 U.S. 153, 207 (1978) (“The Court
recognizes that the first purpose of statutory construction
is to ascertain the intent of the legislature.”). When
considered in light of the whole statute, including its
history and purpose, the second reading-i.e., requiring at
least one defendant to have been properly joined and served
before removal when an in-state defendant is involved-emerges
as the better interpretation.
reaching this determination, the court begins, as it must,
with the text. Rossv. Blake, 136 S.Ct.
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