Two Kuwaiti medical malpractice plaintiffs who filed a medical malpractice case in Maryland state court against The Johns Hopkins Hospital and related entities, all of whom are Maryland defendants, loss their bid to have their Maryland medical malpractice case remanded to Maryland state court after the defendants had removed the case to the United States District Court for the District of Maryland located in Baltimore, Maryland.
The federal judge held in her Memorandum and Order filed on January 8, 2016 that a “forum defendant” in contravention of 28 U.S.C. § 1441(b)(2) is a procedural defect that, pursuant to 28 U.S.C. § 1447(c), must be raised in a motion to remand within thirty days of the filing of a notice of removal. Because the plaintiffs did not file a motion for remand within thirty days of the filing of the notice of removal, they waived any objection to procedural defects, including removal by a forum defendant.
What Is A “Forum Defendant”?
Section 1332(a) of Title 28 of the United States Code grants federal district courts “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 a State and citizens or subjects of a foreign state . . . .”
The plaintiffs did not dispute the defendants’ assertion on removal that the amount in controversy exceeded the jurisdictional threshold of $75,000 and that their medical malpractice case involves a dispute between “citizens of a State and citizens or subjects of a foreign state.” In fact, the plaintiffs agreed that each defendant was a citizen of Maryland; however, the plaintiffs argued that the defendants’ removal of the Maryland medical malpractice case from state court to federal court violated the “forum defendant rule” under 28 U.S.C. § 1441(b)(2).
Section 1441(b)(2) provides: “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.” The rationale behind the forum defendant rule is that removal to federal court based on diversity jurisdiction is intended to protect out-of-state defendants from possible prejudices in state court; however, the need for such protection is absent in cases where the defendant is a citizen of the state in which the case is brought.
The defendant argued, however, that the federal court need not consider the plaintiffs’ motion for remand to state court based on the “forum defendant rule” because the plaintiffs’ motion for remand was untimely because it was filed 34 days after the defendants filed their notice of removal (the defendants filed their notice of removal before they were served): Title 28 U.S.C. § 1447(c) provides, in pertinent part: “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”
The federal judge stated that the question before her was whether the “forum defendant rule” constitutes a procedural defect, or, instead, a jurisidcitional bar to removal that may be raised after the expiration of § 1447(c)’s thirty-day deadline in which to raise procedural defects.
(The federal judge further stated that there is a broad and growing divide among the district courts as to whether the forum-defendant rule bars pre-service removal based on diversity jurisdiction.)
The federal judge stated that she was unaware of any specific guidance from the Supreme Court or the Fourth Circuit concerning whether a motion to remand based on the “forum defendant rule” constitutes a procedural or a jurisdictional challenge to removal; however, of the ten circuits that have spoken on the issue, nine have found that removal by a forum defendant is a procedural defect, and thus waivable.
The federal judge held, “I am persuaded that removal by a forum defendant in contravention of 28 U.S.C. § 1441(b)(2) is a procedural defect that, pursuant to 28 U.S.C. § 1447(c), must be raised in a motion to remand within thirty days of the filing of a notice of removal. Here, plaintiffs did not file a motion for remand within thirty days of the filing of the notice of removal. Therefore, they waived any objection to procedural defects, including removal by a forum defendant. Accordingly, plaintiffs’ Motion is denied.”
Source Almutairi, et al. v. The Johns Hopkins Health System Corporation, et al., Case No. ELH-15-2864.
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