Eileen Leahy v. P Omni Hotels Management Corporation, et al.

2021 DNH 128

• Court: District Court, D. New Hampshire
• Decided: August 13, 2021
• Docket: 20-cv-180-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eileen Leahy

v. Civil No. 20-cv-180-LM Opinion No. 2021 DNH 128 P Omni Hotels Management Corporation, et al.

ORDER

Plaintiff Eileen Leahy brings this personal injury action against defendants

Omni Hotels Management Corporation (“Omni”) and Laurie Morgan. The alleged

injury occurred at Bretton Woods Ski Lodge (“Lodge”) in Bretton Woods, New

Hampshire. Omni operates the Lodge and Morgan is a Lodge employee. Leahy

alleges that she slipped while walking towards the Lodge entrance. While trying to

help Leahy, Morgan allegedly fell on Leahy’s leg causing a fracture. Leahy is a

citizen of Massachusetts, Omni is a citizen of Texas and Delaware, and Morgan is a

citizen of New Hampshire.

At the time Leahy filed her complaint, she did not know Morgan’s name or

address. Leahy filed her complaint against Omni, TRT Holdings, Inc.,1 and “Jane

Doe” in New Hampshire state court. Shortly thereafter, Omni removed the case to

federal court on the basis of diversity jurisdiction. On April 10, 2020, Leahy served

Omni with interrogatories requesting the identity and address of the employee that

fell on Leahy’s leg. On August 13, 2020, after obtaining the employee’s identity,

1 This court later dismissed TRT Holdings for lack of personal jurisdiction.

Like Omni, TRT Holdings is a citizen of Texas and Delaware. Leahy filed an amended complaint joining Morgan as a defendant. Leahy asserts

that she requested Morgan’s address numerous times in discovery, but Omni did

not reveal that Morgan is a New Hampshire resident until May 5, 2021.

Leahy now moves to remand the case to state court. See doc. no. 39. Leahy

argues that the court lacks subject matter jurisdiction under the forum defendant

rule because Morgan resides in New Hampshire. Omni responds that, once

properly removed, the joinder of a forum defendant does not destroy diversity

jurisdiction so long as the parties remain completely diverse following joinder. For

the reasons discussed below, Leahy’s motion is denied.

LEGAL STANDARD & ANALYSIS

Within 30 days after receiving the initial pleading, a defendant may remove

from state to federal court a civil action over which the federal court would have had

original jurisdiction. 28 U.S.C. § 1441(a); 28 U.S.C. § 1446(b)(1). A court

determines the propriety of removal by examining the complaint as of the time of

removal. See Ching v. Mitre Corp., 921 F.2d 11, 13 (1st Cir. 1990). Remand is

required “[i]f at any time before final judgment . . . the district court lacks subject

matter jurisdiction.” 28 U.S.C. § 1447(c).

Not every case over which a district court has subject matter jurisdiction may

be removed, however. The removal statute contains what is commonly referred to

as the “forum defendant rule.” See 28 U.S.C. § 1441(b)(2). The forum defendant

rule provides that a “civil action otherwise removable solely on the basis of

2 [diversity jurisdiction] 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.” Id. Relatedly, “in determining whether a civil action is removable on the

basis of [diversity jurisdiction], the citizenship of defendants sued under fictitious

names shall be disregarded.” 28 U.S.C. § 1441(b)(1).

The plain language of the removal statute makes clear that the forum

defendant rule only bars removal when a forum defendant has been “properly joined

and served.” 28 U.S.C. § 1441(b)(2); see Gibbons v. Bristol-Myers Squibb Co., 919

F.3d 699, 705 (2d Cir. 2019); Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902

F.3d 147, 152 (3d Cir. 2018); see also Gentile v. Biogen Idec, Inc., 934 F.Supp.2d

313, 316-18 (D. Mass. 2013) (holding that plain language of removal statute permits

a properly served, non-forum defendant to remove before plaintiff effects service on

a forum defendant). Because Morgan had been neither joined nor served at the

time of removal, the forum defendant rule did not preclude Omni’s removal.

Leahy appears to acknowledge that the forum defendant rule did not prevent

Omni from removing her action. Leahy argues, however, that the forum defendant

rule is jurisdictional and that Morgan’s post-removal joinder deprives the court of

subject matter jurisdiction even though the parties remained completely diverse

following her joinder.2

2 In the alternative, Leahy asserts a policy argument. Leahy argues that remand under the facts of this case is consistent with the purpose of the forum defendant rule. However, the starting point in discerning a statute’s purpose is the statute’s text. Doyle v. Huntress, Inc., 419 F.3d 3, 8 (1st Cir. 2005). “When the statute’s language is plain, the sole function of the courts . . . is to enforce it

3 Leahy is incorrect. The First Circuit has held—along with every other Court

of Appeals to have considered the issue—that removal despite a joined and served

in-forum defendant is a “procedural defect that is subject to waiver.” Samaan v. St.

Joseph Hosp., 670 F.3d 21, 28 (1st Cir. 2012); see also, e.g., Holbein v. TAW Enters.,

Inc., 983 F.3d 1049, 1053 (8th Cir. 2020) (bringing Eighth Circuit in line with the

“[n]ine other circuits” and holding that the forum defendant rule is non-

jurisdictional and thus waivable). Because the forum defendant rule does not

implicate the court’s subject matter jurisdiction, the post-removal joinder of a forum

defendant does not, by itself, impact the court’s subject matter jurisdiction. See

Samaan, 670 F.3d at 28. Moreover, “[t]he forum defendant rule . . . is only

applicable at the time a notice of removal is filed.” Spencer v. U.S. Dist. Ct. for N.

Dist. of Ca., 393 F.3d 867, 871 (9th Cir. 2004). The post-removal joinder of a forum

defendant does not implicate the forum defendant rule, regardless of whether the

rule is properly characterized as jurisdictional or procedural in nature. See id.

For these reasons, the court denies Leahy’s motion to remand.3

according to its written terms.” Id. (brackets omitted) (quoting Dodd v. United States, 545 U.S. 353, 359 (2005)). Because the removal statute is plain on its face, Leahy’s policy argument goes nowhere. Moreover, to the extent Leahy suggests that Omni was required to affirmatively furnish information regarding Morgan’s identity and citizenship prior to removal, Leahy cites no authority for this contention.

3 Leahy requests oral argument, but the court finds that oral argument would

not assist the court in deciding this motion.

4 CONCLUSION

Plaintiff’s motion to remand (doc. no. 39) is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

August 13, 2021

cc: Counsel of Record