United States District Court, D. Kansas
SANDRA LYNNE DOWNING individually and as personal representative, and on behalf of the estate of Brian Downing on behalf of Kristyl Downing on behalf of James Downing, Plaintiff,
CESSNA AIRCRAFT COMPANY a subsidiary of Textron Aviation, Inc., and JOHN DOES 1-20, Defendants.
MEMORANDUM & ORDER
MURGUIA United States District Judge
matter comes before the court upon plaintiff Sandra Lynne
Downing's Motion to Remand (Doc. 8). This case was
initially filed in the District Court of Johnson County,
Kansas. It was removed to federal court on August 14, 2017,
based on diversity jurisdiction by defendant Lycoming. (Doc.
1.) On August 16, 2017, plaintiff filed an Amended Complaint
(Doc. 5) alleging negligent wrongful death and products
liability claims, all relying on Kansas state law, but naming
only defendant Cessna Aircraft Company (“Cessna”)
and the John Doe defendants. Plaintiff filed her motion to
remand on September 13, 2017, arguing that the court does not
have subject-matter jurisdiction based on the forum-defendant
rule, because defendant Cessna is Kansas company. For the
reasons explained below, plaintiff's motion to remand is
U.S.C. 1332(a) provides that federal district courts have
original jurisdiction in civil matters where (1) the amount
in controversy exceeds $75, 000 and (2) there is complete
diversity of citizenship. The parties do not dispute that
these requirements are met.
plaintiff relies on 28 U.S.C. § 1441(b)(2)-the
forum-defendant rule-as authority to remand this case. The
forum-defendant rule adds the separate requirement that for
proper removal of a civil action to federal court, none of
the parties in interest properly joined and served as
defendants can be a citizen of the state in which the action
is brought-here, Kansas. 28 U.S.C. § 1441(b)(2)
(explaining that an otherwise removable case “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”). Defendant Cessna is a
subsidiary of Textron Aviation, which is a citizen of Kansas.
Therefore, this case should be remanded pursuant to the
defendant's three arguments persuade the court otherwise.
First, defendant correctly suggests that the forum-defendant
rule is a procedural barrier to subject-matter jurisdiction
that may be waived if a plaintiff proceeds in federal court
without raising it. Herrera v. Las Cruces Pub.
Schs., 695 F. App'x 361, 366 (10th Cir. 2017).
Defendant argues that plaintiff waived her right to remand
this case because she filed an amended complaint in federal
court finds the Ninth Circuit's discussion in Lively
v. Wild Oats Markets, Inc., persuasive.456 F.3d 933 (9th
Cir. 2006). The Ninth Circuit explained that:
The purpose of the forum defendant rule also supports
treating it as a non-jurisdictional requirement. Removal
based on diversity jurisdiction is intended to protect
out-of-state defendants from possible prejudices in state
court. . . . The need for such protection is absent, however,
in cases where the defendant is a citizen of the state in
which the case is brought. Within this contextual framework,
the forum defendant rule allows the plaintiff to regain some
control over forum selection by requesting that the case be
remanded to state court. A procedural characterization of
this rule honors this purpose because the plaintiff can
either move to remand the case to state court within the
30-day time limit, or allow the case to remain in federal
court by doing nothing. Either way, the plaintiff exercises
control over the forum.
Id. at 940. Here, plaintiff moved to remand within
30 days. The court does not find that filing the amended
complaint waived plaintiff's right to control the forum
for adjudication of her claims, especially when the only
basis for removal in the first instance was diversity
defendant argues that Cessna was not a party in interest
properly joined and served at the time this case was removed
and that because diversity jurisdiction is determined at the
time of removal, the forum-defendant rule should not apply.
This court has previously held that this interpretation of
the forum-defendant rule is contrary to its purpose. The
joined and served language is included to prevent plaintiffs
from foreclosing a defendant's ability to remove an
action by naming a local defendant whom the plaintiff has no
intention of serving or proceeding against. The rule does not
authorize the court to ignore the citizenship of unserved
defendants in determining diversity jurisdiction. See
Gift Card Impression v. Grp. Servs. Ltd., No.
12-2766-CM, 2013 WL 568211, at *1 (D. Kan. Feb. 13, 2013)
(citing Boulter v. Citi Residential Lending, No.
10-350-JHP, 2011 WL 128789, at *3 (E.D. Okla. Jan. 14,
defendant argues that plaintiff's motion to remand should
be denied because she did not sufficiently develop her legal
argument or reply. There is no requirement that a reply brief
be filed and plaintiff provided the court with sufficient
argument and authority to decide in her motion in her favor.
Plaintiff brings all state law claims. The forum-defendant
rule applies to this case. The court finds that
plaintiff's motion to remand should be granted and this
case should be remanded to the District Court in Johnson
IS THEREFORE ORDERED that plaintiff's Motion to
Remand (Doc. 8) is granted. After remanding to the Johnson
County District Court, ...