United States District Court, N.D. Oklahoma
BOBBY DEAN HOWARD and CRYSTAL DAWN HOWARD, as Parental Guardian of Bobby Dean Howard Plaintiffs,
CROSSLAND CONSTRUCTION COMPANY, INC. and MARK MOUDY, Defendants.
AMENDED OPINION AND ORDER
TERENCE C. KERN United States District Judge.
the Court are (1) Plaintiffs' Motion to Remand (Doc. 16)
and (2) CompSource Mutual Insurance Company
(“CompSource”)'s Motion for Intervention
(Doc. 12). For the reasons discussed below, Plaintiffs'
Motion to Remand is DENIED and CompSource's Motion for
Intervention is GRANTED.
I. Factual Background
Bobby Dean Howard (“Howard”) worked on “The
Construction Project, ” located at 7625 South Elwood
Ave., Tulsa, Oklahoma. Defendants Crossland Construction
Company, Inc. (“Crossland”) and Mark Moudy
(“Moudy”) managed this project. Howard alleges
that on June 22, 2016, he was injured while working on The
Construction Project when he fell three stories through an
open and unprotected ventilation duct. At the time of
Howard's alleged injuries, he was an employee of D&D
Stud Welding, which was insured for its liability under the
Oklahoma Administrative Workers' Compensation Act by
17, 2017, Howard and Plaintiff Crystal Dawn Howard, as
Howard's parental guardian, (“Plaintiffs”)
filed a Petition in District Court of Tulsa County alleging
premises liability, negligent activity, and general
negligence. Crossland was served on July 28, 2017 and filed a
Notice of Removal on August 24, 2017, on the basis of
diversity jurisdiction. (Doc. 2.) Plaintiffs are citizens of
Texas, and Crossland is a citizen of Kansas. (Doc. 2 ¶
1-2.) In support of its Notice of Removal, Crossland alleges
that Moudy is a resident of Oklahoma. (Id. ¶
3.) However, Crossland contends Moudy was not “properly
joined and served” and should not be considered for the
purpose of diversity jurisdiction. Plaintiffs filed a Motion
to Remand on September 21, 2017. (Doc. 16.)
Plaintiffs' Motion to Remand
Standard for Removal
defendant may remove any case that originally could have been
filed in federal court. See 28 U.S.C. § 1446(a) (2018).
The defendant must file a notice of removal within thirty
days of receiving the initial pleading. See 28 U.S.C. §
1446(b)(1) and (3) (2018). A defendant may remove on the
basis of diversity jurisdiction when no plaintiff and no
defendant are citizens of the same state. See 28 U.S.C.
§§ 1332(a), 1441(b)(1); Middleton v.
Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014)
(quoting Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89
(2005)). However, under the forum defendant rule, a defendant
may not remove a case on the basis of diversity jurisdiction
if any properly joined and served defendant is a citizen of
the state in which the action is brought. 28 U.S.C. §
1441(b)(2) (2018). Accordingly, when removing a case on the
basis of diversity jurisdiction, Defendants must demonstrate
both (1) complete diversity, and (2) that no properly joined
and served defendant is a citizen of the state in which the
action is brought. See 28 U.S.C. §§ 1332(a);
contend that their petition is not removable due to the forum
defendant rule, because Moudy is a citizen of Oklahoma.
Defendants argue the case is removable because, even if Moudy
is a citizen of Oklahoma, he is not “properly joined
and served” under § 1441(b)(2).
purpose of this analysis, the Court will consider Moudy a
citizen of Oklahoma. When evaluating diversity, the Court
will consider a person a citizen of the state where he is
domiciled. See Middleton, 749 F.3d at 1200. A person is
domiciled in a state when he resides there and intends to
remain there indefinitely. Id. When determining a
person's domicile, a court looks to the totality of the
circumstances. Id. at 1201. In this case, Crossland
and Plaintiffs agree that Moudy is a resident of Oklahoma.
(Doc. 21 ¶ 11.) Moreover, Plaintiffs have alleged Moudy
was engaged in the management of The Construction Project in
Tulsa, Oklahoma. Without any allegations to the contrary,
Moudy's residence in combination with his place of
employment or business will be sufficient to establish
citizenship for the purposes of this analysis only. See
Middleton, 749 F.3d at 1201 (describing factors considered in
the totality of the circumstances domicile analysis). Because
the Court will consider Moudy a citizen of Oklahoma, if Moudy
is properly joined and served, the forum defendant rule will
frequently understand the “properly joined and
served” requirement to prevent gamesmanship by a
plaintiff who joins a forum defendant against whom he has no
claim, and does not even intend to serve, simply to prevent
removal. See Magallan v. Zurich Am. Ins. Co., 228
F.Supp.3d 1257, 1260 (N.D. Okla. 2017) (internal citations
omitted). There is a split of authority, however, as to
whether a forum defendant must be considered when a case is
removed before the forum defendant has been served. Some
courts have held that when a forum defendant is named, a
defendant cannot avoid the forum defendant rule by removing
before the forum defendant is served, as this would create an
“absurd and bizarre result.” Sullivan v.
Novartis Pharmaceuticals Corp., 575 F.Supp.2d 640, 647
(D.N.J. 2008); see Vivas v. Boeing Co., 486
F.Supp.2d 726, 735 (N.D. Ill. 2007).
this district and other Tenth Circuit courts construe the
language of § 1441 literally, holding that until the
forum defendant is served, he is not “properly joined
and served” and may not be considered for diversity
removal purposes. See, e.g., Breitweiser v. Chesapeake
Energy Corp., No. 3:15-CV-2043-B, 2015 U.S. Dist. LEXIS
142083 (N.D. Tex. Oct. 20, 2015) (“[C]ourts should
apply the plain language of section 1441(b)(2) and should not
remand a nonforum defendant's snap removal.”);
Watanabe v. Lankford, 684 F.Supp.2d 1210 (D. Haw.
2009) (allowing removal by an out-of-state defendant despite
an unserved in-state defendant because a literal
interpretation of “joined and served” would not
violate the purpose of the forum defendant rule and would not
cause an absurd result); but see Lone Mt. Ranch, LLC v.
Santa Fe Gold Corp., 988 F.Supp.2d 1263 (D. N.M. 2013)
(“The Court is persuaded by the cases holding that a
non-forum defendant cannot remove a case where there are
unserved forum defendants.”). The same courts have also
recognized a limited exception for “absurd and bizarre,
” results such as removal before the plaintiff has
served any defendant, or before the plaintiff has had a
reasonable opportunity to serve the forum defendant.
Magallan, 228 F.Supp.3d at 1259-1261; see also In re Mcgill,
2017 U.S. Dist. LEXIS 2100, *4-*7; FTS Int'l Servs.,
LLC v. Caldwell-Baker Co., No. 13-2039-JWL, 2013 U.S.
Dist. LEXIS 43236, *6-10 (D. Kan. 2013). Accordingly, a
non-forum defendant may remove a case despite the existence
of an unserved forum defendant, unless removal would cause an
“absurd and bizarre result.”
case, Plaintiffs have not yet served Moudy. In their Motion
to Remand, Plaintiffs allege Moudy “may temporarily be
outside of the State of Oklahoma, [but] Plaintiffs continue
to seek service upon him.” (Doc. 16 at ¶ 6.) There
is no indication in the record that Moudy has yet been served
in this case. Moudy did enter a voluntary appearance in this
action, represented by the same counsel representing
Crossland, but this voluntary appearance does not constitute
service for the ...