United States District Court, W.D. Louisiana, Lake Charles Division
ROBERT A. GROSS
OLD REPUBLIC INS. CO., ET AL.
MEMORANDUM RULING & ORDER
E. WALTER, UNITED STATES DISTRICT JUDGE.
the Court is a Report and Recommendation filed by the
Magistrate Judge [Doc. #26] recommending denial of Plaintiff
Robert A. Gross's ("Gross") Motion to Remand
and Motion for Attorney's Fees and Costs. Plaintiff Gross
filed objections. [Doc. #28]. For the reasons stated below,
the Court adopts the Report and Recommendation and
DENIES the Motion to Remand and Motion for
Attorney's Fees and Costs [Doc. #15], First, Gross
generally "objects to the [Report and
Recommendation's] conclusion that no basis for remand
under the forum defendant rule exist[s] and the denial of the
motion upon that basis." [Doc. #27');">27');">27');">27, p. 3]. Because this
general objection fails to direct the Court to any specific
contention of error, the Court need not review this objection
de novo. See 28 U.S.C. § 636(b)(1); Battle
v. United States Parole Comm % 834 F.2d 419, 421 (5th
Cir. 1987). However, the remainder of Gross's objections
are specific and cover most, if not all, of the factors
leading to the Magistrate Judge's conclusion; therefore,
de novo review applies.
Gross "objects to the [Report and Recommendation's]
attempt to ignore the plain language of 28 U.S.C. §
1441(b)(2), by failing to remand based upon a reading of the
forum defendant rule that makes the forum defendant rule
almost completely inapplicable." [Doc. #27');">27');">27');">27, p. 4]. The
forum defendant rule, 28 U.S.C. § 1441(b)(2), provides
that where an action is only removable on the basis of
diversity jurisdiction, it "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 added). Gross
argues that construing the forum defendant rule to apply only
where service on the forum defendant precedes service of the
non-forum defendant "seems unwise and illogical."
[Doc. #27');">27');">27');">27, p. 7]. Gross asserts that it would be logical to
allow a plaintiff to move for remand once a forum defendant
has been served. Id. However, whether Gross agrees
with the logic of the rule, the plain language of 28 U.S.C.
§ 1441(b)(2) bars removal on the basis
of diversity jurisdiction only if a forum defendant is
"joined and served." Gross cites
no authority questioning the accuracy of this interpretation
or expanding the meaning of the statute to require remand
when a forum defendant is served at any point after removal.
Therefore, the Court finds no error in this respect.
Gross "objects to the [Report and Recommendation's]
suggestion that [he] should have moved for remand on a basis
that has been consistently denied in this Circuit and
Districts within the circuit, and thus was untimely."
[Doc, #27');">27');">27');">27, p. 4]. A party has thirty days from the notice of
removal in which to file a motion to remand "on the
basis of any defect other than lack of subject matter
jurisdiction." 28 U.S.C. § 1447(c). As stated in
the Report and Recommendation [Doc. #26, p. 3], the forum
defendant rule is a procedural rather than a jurisdictional
defect. In re 1994 Exxon Chem. Fire, 558 F.3d 378,
392-96 (5th Cir. 2009). Gross does not dispute the fact that
he filed the motion to remand more than thirty days after
removal. [Doc. #27');">27');">27');">27, pp. 2-3], The Magistrate Judge's
"suggestion" that Gross should have filed a motion
to remand within the thirty-day time frame is not a proposed
finding of fact or recommendation to this Court, nor does it
have any bearing on whether or not Gross's motion was
untimely. The Court finds no error in the Magistrate
Judge's conclusion that Gross's motion to remand was
not timely filed.
fourth and fifth points, Gross objects to the Magistrate
Judge's "requirement" that a finding of
"snap removal" or "gamesmanship" is
necessary to consider remand when a forum defendant has been
served after removal, and further objects to the
"finding that no basis exists for 'leniency on the
time requirement.'" [Doc. #27');">27');">27');">27, p. 4]. The Magistrate
Judge described a possible exception which may allow remand
in a case where there is an unserved forum defendant,
referred to as snap removal,  but ultimately stated that Gross
showed no authority which "would justify excusing the
time limit for raising this procedural defect." [Doc.
#26, pp. 3-4]. Although Gross objects to the Magistrate
Judge's exclusive consideration of "snap
removal" or "gamesmanship" as a possible
exception to the forum defendant rule, Gross offers no other
authority to support an extension of the time frame to file a
motion to remand on the basis of this procedural
issue. The Court agrees with the Magistrate
Judge's analysis and rejects Gross's arguments to the
Gross "objects to, based upon lack of evidence, to [the
Report and Recommendation's] finding and conclusion based
upon that he could not 'show he has [been] stymied'
by Defendants in attempt to serve forum defendant."
[Doc. #27');">27');">27');">27, p. 4]. Under the hypothetical situation in which
Gross timely filed the motion to remand, the Magistrate Judge
considered whether the non-forum defendants engaged in
gamesmanship by preventing Gross from locating the forum
defendant for the purpose of effecting service. [Doc. #26, p.
5]. Finding evidence in the record that the non-forum
defendants provided the last known address they had for their
former employee, the forum defendant, the Magistrate Judge
determined that the non-forum defendants did not engage in
gamesmanship, nor did they rush to remove the case, which
might allow the Court to consider remand had Gross timely
filed his motion. Id. Gross offers no arguments to
dispute the facts relied upon by the Magistrate Judge and
offers no other evidence of gamesmanship on the part of the
non-forum defendants. Accordingly, the Court is not persuaded
by this objection.
the Court finds no merit in Gross's objections, the Court
also accepts the Magistrate Judge's recommendation to
deny Gross's motion for attorney's fees and costs.
reasons assigned in the Report and Recommendation of the
Magistrate Judge previously filed herein and supplemented by
this memorandum ruling, and after having thoroughly reviewed
the record, including the written objections filed herein,
and concurring with the findings of the Magistrate Judge
under the applicable law;
IS ORDERED that Gross's Motion to Remand and
Motion for Attorney's Fees and Costs [Doc. #15] is hereby
DONE AND SIGNED.