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Blankenship v. Napolitano

United States District Court, S.D. West Virginia

July 17, 2019



          John T. Copenhaver, Jr. Senior United States District Judge

         Pending 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 30, 2019.

         This 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.[1] 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.

         On 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.[2]

         “Federal 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)).

         The 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. § 1441(b)(2).

         The 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)).

         In the 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).

         Few 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).

         In 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 not apply:

[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 ...

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