United States District Court, D. Rhode Island
J. MCCONNELL, JR. UNITED STATES DISTRICT JUDGE
the Court is Plaintiff DHLNH, LLC's emergency motion to
remand this matter to the Rhode Island Superior Court. ECF
No. 4. For the following reasons, the motion is GRANTED.
alleges that the Defendants-International Brotherhood of
Teamsters, Local 251 and numerous named and unnamed
individuals-have engaged in unlawful picketing activities
outside of DHLNH's Pawtucket, Rhode Island facility. On
the morning of May 25, 2018, DHLNH filed a verified complaint
and a motion for a temporary restraining order in Rhode
Island Superior Court. The superior court scheduled a TRO
hearing for 2:00 pm on that day. By noon, however, the
Defendants had removed the matter to this Court. No.
Defendant had been served by the time the action was removed.
morning of the next business day, DHLNH filed an emergency
motion to remand the case to state court. The Defendants
responded and a hearing was held that morning, following
which the Court ordered supplemental briefing on an expedited
U.S.C. § 1441(a) allows for “any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction” to be
“removed by the defendant or the defendants” to
the appropriate United States district court. Whether this
case can be removed, then, depends on whether this Court has
original jurisdiction, either by diversity jurisdiction or
federal question jurisdiction.
Defendants assert that they removed this case on the basis of
diversity jurisdiction. ECF No. 1 at 1. While it does appear
that there is diversity of citizenship (see ECF No.
1-1 ¶ 1; ECF No. 10 at 3; ECF No. 11 at 6), removal in
this case is barred by the forum defendant rule. That rule,
codified at 28 U.S.C. § 1441(b)(2), provides that
“[a] civil action otherwise removable solely on the
basis of [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.” The Defendants argue that this rule cannot
apply to them because none of them was “properly joined
and served” prior to removal. The Court disagrees.
parties note, federal courts are divided as to whether the
forum defendant rule bars removal before service on the basis
of diversity jurisdiction. However, “the growing trend among
district courts wrestling with this issue is to remand,
finding that although ‘the plain meaning of [§]
1441(b)(2) permits pre-service removal by a resident
defendant, . . . a literal application of this plain meaning
is contrary to congressional intent and creates absurd
results.'” Deutsche Bank Nat'l Tr. Co. v.
Hagan, No. 15-00376 JMS-KSC, 2015 WL 7720465, at *4 (D.
Haw. Nov. 27, 2015) (alterations in original) (quoting
Phillips Constr., LLC v. Daniels Law Firm, PLLC, 93
F.Supp.3d 544, 550 (S.D. W.Va. 2015)).
all, “[o]ne of the principal purposes of diversity
jurisdiction was to give a citizen of one state access to an
unbiased court to protect him from parochialism if he was
forced into litigation in another state in which he was a
stranger and of which his opponent was a citizen.”
Reimold v. Gokaslan, 110 F.Supp.3d 641, 642 (D. Md.
2015) (quoting Ziady v. Curley, 396 F.2d 873, 875
(4th Cir. 1968)). The removal power, then, allows a
“non-forum defendant . . . to seek the protection of
the federal court against any perceived local bias in the
state court chosen by the plaintiff.” Gentile v.
Biogen Idec, Inc., 934 F.Supp.2d 313, 319 (D. Mass.
2013). The prohibition on forum-defendant removal makes sense
because, “when the defendant seeking removal is a
citizen of the forum state, ” the
“protection-from-bias rationale behind the removal
power evaporates.” Id.
interpretation of § 1441(b)(2) would allow a loophole in
which they, as forum defendants, could remove the case prior
to service, even though they would be prohibited from doing
so afterward. This is contrary to the purpose of §
1441(b)(2) and would lead to an absurd result. See
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575
(1982) (“[I]nterpretations of a statute which would
produce absurd results are to be avoided if alternative
interpretations consistent with the legislative purpose are
available.”); Wilcox v. Ives, 864 F.2d 915,
926 (1st Cir. 1988) (same).
the Court finds that the forum defendant rule precludes
removal on the basis of diversity jurisdiction.
Federal Question Jurisdiction
would also be proper if the case “aris[es] under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. The Defendants argue that the
Complaint states claims based on union secondary activities,
which are preempted by federal law. On this, too, the Court
303 of the Labor Management Relations Act, 29 U.S.C. §
187, creates a private right of action for anyone
“injured in his business or property by reason or any
violation of” Section 8(b)(4) of the National Labor
Relations Act ...