United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
the Court is the Motion to Remand (Doc.No. 10) filed by
Plaintiff, Rodriquez Johnson, pursuant to 28 U.S.C. §
1447(c). Defendant State Farm Mutual Automobile Insurance
Company (“State Farm”) responded in opposition to
the motion. (Doc.No. 13). Upon consideration of the
parties' submissions, the Court hereby GRANTS
Plaintiff's motion and remands this matter to the
District Court of Oklahoma County.
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). The removal statute authorizes
defendants to remove any civil action from state court to
federal district court if the district court would have
original jurisdiction (e.g., through federal question or
diversity jurisdiction). 28 U.S.C. § 1441. As the party
removing this action, Defendant State Farm bears the burden
of establishing jurisdiction. Radil v. Sanborn W. Camps,
Inc., 384 F.3d 1220, 1224 (10th Cir. 2004)(“The
party invoking federal jurisdiction bears the burden of
establishing such jurisdiction as a threshold
matter.”). Defendants assert that this Court has
diversity jurisdiction under 28 U.S.C. § 1332, which
provides “district courts shall have original
jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75, 000, exclusive
of interest and costs, and is between...citizens of different
States.” 28 U.S.C. § 1332(a). “For purposes
of federal diversity jurisdiction, an individual's state
citizenship is equivalent to domicile.” Smith v.
Cummings, 445 F.3d 1254, 1259 (10th Cir. 2006).
“To establish domicile in a particular state, a person
must be physically present in the state and intend to remain
there.” Id. at 1260.
Notice of Removal recites that Plaintiff is a citizen of
Oklahoma, that State Farm is incorporated and has its
principal place of business in Illinois. (Doc.No. 1,
¶¶ 6-7). The Notice of Removal does not assert the
citizenship of Defendant Sanders, but does refer to her as a
forum Defendant. Defendant State Farm asserts that, because
Defendant Sanders had not been served at the time of removal,
the forum defendant rule, which is set forth in 28 U.S.C.
§ 1441(b)(2), does not bar removal of this
action. In support of its position State Farm
cites to numerous cases, each of which is distinguishable
from the instant case, because the parties in those cases are
diverse-that is, the plaintiffs were not residents of the
forum and were diverse from the named, but not yet served,
defendants. Here, the Court lacks any allegations about Ms.
Sanders' domicile although the address on the summons
issued to Ms. Sanders lists an Oklahoma City address and
Sanders was apparently served at this address post-removal.
This information is consistent with Defendant's assertion
that Ms. Sanders is a forum Defendant. In short, as the party
seeking to invoke this Court's jurisdiction, Defendant
State Farm has failed in its obligation to establish
diversity between the Plaintiff and the
Defendants. The forum defendant rule is irrelevant
where there is no diversity-here the Notice of Removal fails
to establish that diversity exists. Without diversity or a
federal question there is no jurisdiction in this Court,
regardless of whether Defendant State Farm removed this
action before Ms. Sanders was properly joined and served.
Accordingly, the matter must be remanded to the District
Court of Oklahoma County.
case is remanded to state court, the Court in its discretion
“may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of
the removal.” 28 U.S.C. § 1447(c). This
determination requires a consideration of the
“reasonableness of the removal”; this means that
if an “objectively reasonable basis exists” for
removal, “fees should be denied.” Martin v.
Franklin Capital Corp., 546 U.S. 132, 141 (2005). The
Court finds there was no objectively reasonable basis for
removal given that Defendant State Farm concedes that
Defendant Sanders is a forum Defendant and that Plaintiff is
a citizen of Oklahoma as well. Plaintiff shall submit an
application for fees and costs, including detailed billing
records related to the filing of the motion, within seven
days of entry of this Order. Defendant State Farm thereafter
shall have five days in which to object to the amount
requested in the application, but not to the propriety of
costs and fees. Plaintiffs Motion to Remand is hereby
 The Amended Petition filed in the
District Court of Oklahoma County contains no allegations
regarding Ms. Sanders' residency, citizenship, or
domicile. (Doc.No. 1-3)
 28 U.S.C. § 1441(b)(2)
A civil action otherwise removable solely on the basis
of the jurisdiction under section 1332(a) of this title 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.
 Unlike the jurisdictional requirement
that diversity exist, the forum defendant rule is
non-jurisdictional and may be waived. See Brazell v.
Waite, 525 Fed.Appx. ...