United States District Court, District of Montana, Billings Division
JASON T. TALBOT, Plaintiff,
JONATHAN NIKOLAUS TOKARSKI, Defendant.
FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Carolyn S. Ostby United States Magistrate Judge
In this personal injury action, Jason Talbot (“Talbot”) claims that Jonathan Nikolaus Tokarski (“Tokarski”) negligently operated his motor vehicle and injured Talbot. Now pending is Talbot’s Motion to Remand. ECF 5.
On August 27, 2014, Talbot filed this action in state court naming Tokarski as the sole defendant. On September 4, 2014, prior to being served with state court process, Tokarski removed the case to this Court. See ECF 1. Talbot now moves to remand to state court. ECF 5.
II. The Parties’ Arguments
Talbot acknowledges that complete diversity exists because he is a citizen of Oklahoma and Tokarski is a Montana citizen. But Talbot argues that removal was improper because Tokarski is the only defendant and a defendant who is a citizen of the State in which an action is brought may not remove. ECF 5 at 2. Talbot cites the 28 U.S.C. § 1441(b)(2). This statute is commonly referred to as the “forum defendant rule.” Tokarski responds that removal is proper because, at the time he filed his notice of removal, he had not yet been served. He argues that 28 U.S.C. § 1441(b)(2) prohibits removal only if a properly joined “and served” forum defendant is a citizen of the forum state.
A. Standards Applicable to Motion to Remand
In general, removal statutes are to be strictly construed, and courts should resolve any doubts in favor of remand. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006). The defendant has the burden of establishing that removal is proper. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009).
Challenges to removal raise significant federalism concerns because “the effect of removal is to deprive the state court of an action properly before it . . . .” County of Santa Clara ex rel. Marquez v. Bristol Myers Squibb Co., 2012 WL 4189126 (N.D. Cal. 2012) (citing Grable & Sons Metal Products, Inc. v. Darue Engr. & Mfg., 545 U.S. 308, 312 (2005)). These federalism concerns include protecting against “a potentially enormous shift of state cases into federal court.” Id. (quoting Grable & Sons Metal Products, Inc., 545 U.S. at 312).
Courts must be mindful that the central purpose of removal based on diversity jurisdiction is “to protect out-of-state defendants from possible prejudices in state court.” Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 940 (9th Cir. 2006). When the defendant is from the forum state, there is no such need for protection. Id.
B. Rules of Statutory Interpretation
In construing a statute, courts should interpret the statute “as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Boise Cascade Corp. v. U.S. E.P.A., 942 F.2d 1427, 1432 (9th Cir. 1991). Generally, “the authoritative statement is the statutory text, not the legislative history or any other extrinsic material.” Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568 (2005).
A court may look beyond the plain statutory meaning if the language is ambiguous, or if the plain meaning leads to an absurd result. Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 200 (1993); Safe Air For Everyone v. U.S. E.P.A., 488 F.3d 1088, 1099 (9th Cir. 2007). The plain language of the statute may also be disregarded if a “literal interpretation would thwart the purpose of the over-all statutory scheme . . . .” U.S. ex rel. Barajas v. U.S., 258 F.3d 1004, 1012 (9th Cir. 2001) (internal citation omitted); see also U.S. v. Am. Trucking Ass'ns, 310 U.S. 534, 543 ...