United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge
is the motion of the plaintiff, Don Blankenship, to remand
this case to the Circuit Court of Mingo County, West
Virginia, filed April 9, 2019. Defendant Fox News Network,
LLC, (“Fox News”) filed a response in opposition
on April 23, 2019, to which the plaintiff replied on April
action commenced in the Circuit Court of Mingo County on
March 14, 2019, upon the plaintiff's filing of a
complaint of defamation against twenty-eight named defendants
seeking $12 billion in damages. The allegations of the complaint
spur from the media's representation of Mr. Blankenship
as he unsuccessfully vied for the West Virginia Republican
Party nomination in the 2018 United States Senate race.
March 29, 2019, prior to any party being served, defendant
Fox News Network, LLC (“Fox News”) removed the
case to this court on the grounds of diversity jurisdiction.
On April 9, 2019, the plaintiff filed a motion to remand, not
disputing that the parties are totally diverse nor that the
requisite amount in controversy is exceeded, but rather
contending that removal is improper under the forum defendant
rule, 28 U.S.C. § 1441(b)(2), because at least one
defendant is a West Virginia domiciliary.
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).
“Removal jurisdiction is to be construed narrowly, and
when jurisdiction is doubtful, remand is proper.”
Caufield v. EMC Mortg. Corp., 803 F.Supp.2d 519, 529
(S.D. W.Va. 2011) (citing Mulcahey v. Columbia Organic
Chemicals Co. Inc., 29 F.3d 148, 151 (4th Cir.1994)).
court is vested with original jurisdiction of all actions
between citizens of different states when the amount in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a)(1).
However, “[a] civil action otherwise removable solely
on the basis of the jurisdiction under section 1332(a) . . .
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.” 28 U.S.C. §
parties do not dispute that defendant 35th Inc. is a West
Virginia resident and that if 35th Inc. were served prior to
removal, removal would have been barred by the forum
defendant rule. The issue, rather, is whether the forum
defendant rule bars removal when the forum defendant was not
yet “properly joined and served” at the
time of removal. Id. (emphasis added). Fox News
contends that the plain meaning of the statute provides that
removal is proper when the forum defendant has not been
served prior to removal. The plaintiff does not dispute this
literal interpretation of the statute, but rather argues that
“such a rule leads to a result Congress plainly did not
intend[.]” Memo. in Support, ECF # 6 at 6. The court
notes that it is irrelevant that 35th Inc. has since been
served, inasmuch as “[t]he removability of a case
‘depends upon the state of the pleadings and the record
at the time of the application for removal. . . .'”
Francis v. Allstate Ins. Co., 709 F.3d 362, 367 (4th
Cir. 2013), quoting Alabama Great S. Ry. Co. v.
Thompson, 200 U.S. 206, 216 (1906)).
Fourth Circuit, “[t]he general rule is that unless
there is some ambiguity in the language of a statute, a
court's analysis must end with the statute's plain
language (the Plain Meaning Rule).” Hillman v.
I.R.S., 263 F.3d 338, 342 (4th Cir.2001) (citing
Caminetti v. United States, 242 U.S. 470, 485,
(1917)). There are two exceptions to the plain meaning rule:
(1) “when literal application of the statutory language
at issue produces an outcome that is demonstrably at odds
with clearly expressed congressional intent to the
contrary.” Hillman, 263 F.3d at 342 (citing
Sigmon Coal Co. v. Apfel, 226 F.3d 291, 304 (4th
Cir.2000)); and (2) “when literal application of the
statutory language at issue ‘results in an outcome that
can truly be characterized as absurd, i.e., that is
so gross as to shock the general moral or common
sense.” Id. (quoting Sigmon Coal Co.,
226 F.3d at 304).
circuit courts, of which the Fourth Circuit is not one, have
had opportunity to interpret the forum defendant rule in this
context. The majority of those that have, however, have shown
support for the interpretation that applies the plain meaning
rule and allows removal. Specifically, two circuits --the
Third and the Second -- have considered the issue over the
past year. See Encompass Ins. Co. v. Stone Mansion Rest.
Inc., 902 F.3d 147 (3d Cir. 2018), reh'g
denied (Sept. 17, 2018), and Gibbons v.
Bristol-Myers Squibb Co., 919 F.3d 699 (2d Cir. 2019).
Encompass, the Third Circuit reviewed a district
court's decision denying remand after a forum defendant,
the sole defendant in the case, filed a notice of removal
prior to being served and the case was otherwise removable.
902 F.3d at 152. The court followed the traditional rules of
statutory interpretation, concluding first that “the
language of the forum defendant rule in section 1441(b)(2) is
unambiguous. Its plain meaning precludes removal on the basis
of in-state citizenship only when the defendant has been
properly joined and served.” Id. The court
then considered the two exceptions, but found that they did
[C]ourts and commentators have determined that Congress
enacted the [“properly joined and served” portion
of the forum defendant rule] “to prevent a plaintiff
from blocking removal by joining as a defendant a resident
party against whom it does not intend to proceed, and whom it
does not even serve.” Arthur Hellman, et al.,
Neutralizing the Strategem of “Snap Removal”:
A Proposed Amendment to the Judicial Code, 9 Fed. Cts.
L. Rev. 103, 108 (2016) (quoting Sullivan v. Novartis
Pharms. Corp., 575 F.Supp.2d 640, 645 (D.N.J. 2008));
see also Goodwin v. Reynolds, 757 F.3d 1216, 1221
(11th Cir. 2014) (noting the same).
. . .
Congress' inclusion of the phrase “properly joined
and served” addresses a specific problem -- fraudulent
joinder by a plaintiff -- with a bright-line rule. Permitting
removal on the facts of this case does not contravene ...