Opinion
Case No. A4-04-91, Docket Number: 6.
September 9, 2004
ORDER DENYING PLAINTIFFS' MOTION TO REMAND
Before the Court is the Plaintiffs' Motion to Remand filed on July 30, 2004. For the reasons set forth below, the motion is denied.
I. BACKGROUND
In June 2004, the Plaintiffs initiated the above-entitled action in South Central Judicial District in Burleigh County, North Dakota. On July 7, 2004, the Defendants filed a Notice of Removal of the action with this Court, the United States District Court for the District of North Dakota, Northwestern Division, pursuant to 28 U.S.C. § 1441.
On July 30, 2004, the Plaintiffs filed a motion to remand the action back to state court on the grounds that removal was defective. According to the Plaintiffs, the action can only be removed to the Southwestern Division of the United States District Court for the District of North Dakota given that the action was initially filed in Burleigh County. On August 9, 2004, the Defendants filed a response to the motion and asserted that the Northwestern Division is the appropriate division to hear this action because the events giving rise to the claim allegedly occurred in Pierce County.
II. LEGAL DISCUSSION
Notably, the Plaintiffs have not challenged this Court's exercise of jurisdiction over the action. There is no dispute regarding the existence of diversity of citizenship or an amount in controversy exceeding $75,000. Rather, the Plaintiffs cite to what they perceive to be a procedural defect — the removal of the action to the wrong division of this Court — as the basis for remanding the action back to state court.
The Defendants contend that removal to the Northwestern Division was proper because it would have been the appropriate division to hear this case had the action been initially filed in federal court. Specifically, they note Local Rule 3.1's instruction that "[a]ll civil cases must be assigned to the division of the district where the action arose or where the defendants resides. . . ." In addition, they point out that the events giving rise to the Plaintiffs' claims are alleged to have occurred in Pierce County which is located in the Northwestern Division.
In the alternative, the Defendants maintain that the appropriate remedy for filing in the incorrect division is reassignment. The Defendants cite to a case entitled MacKay v. Unita Development Co., 229 U.S. 173 (1913), for the proposition that the failure to comply with the removal statutes is a procedural defect that does not defeat federal court jurisdiction. Applying the principles of MacKay, the Defendants contend that procedural defects "are completely without effect upon the removal, if the case is in its nature removable."Covington v. Indemnity Insurance Co. of North America, 251 F.2d 930, 933 (5th Cir. 1958).
28 U.S.C. § 1441 discusses the general rules regarding removal of actions from state to federal court:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.28 U.S.C. § 1441(a). 28 U.S.C. § 1446 discusses the procedure for removal:
A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.28 U.S.C. § 1446(a). These statutes are to be strictly construed.See Bradley v. Maryland Cas. Co., 382 F.2d 415, 419 (8th Cir. 1967).
There is nothing before the Court to indicate that the Plaintiffs were precluded by state law or procedure from initiating their action in Burleigh County as opposed to the county in which the events giving rise to the action actually occurred. Further, there is nothing to indicate that the Defendants have contested or otherwise challenged venue in Burleigh County. Sections 1441(a) and 1446(a) clearly state that a defendant may remove a state court action to the federal district court embracing the place where the state court action was pending as opposed to where the events giving rise to the action occurred. Thus, in this instance, removal to the Northwestern Division was improper. The action should have been removed to the Southwestern Division. That being said, the Court agrees with the Defendants that a remand to state court is not the appropriate course of action.
To reconcile any tension that may exist between the statutes governing removal and Local Rule 3.1, the Court notes that Local Rule 3.1(A) generally applies to division assignments with respect to actions filed in federal court in the first instance as opposed to actions removed from state court to federal court.
It is clear the Court may either dismiss the action or, if in the interests of justice, transfer it to any division in which it could have been brought. See 28 U.S.C. § 1406(a) ("The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."); see also SWS Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494, n. 3 (5th Cir. 1996) ("Error in the venue of a removed action does not deprive the district court of subject matter jurisdiction requiring the remand of the case. When a case is removed to the wrong district, the mistake does not require remand and the interest of justice requires that the action be transferred to the district court of proper venue."). The Court has carefully reviewed the record and finds that the interests of justice are better served by transferring the action to the Southwestern Division as the Defendants' procedural gaffe has not deprived the Court of subject matter jurisdiction.
III. CONCLUSION
The Plaintiffs' Motion to Remand (Docket No. 4) is DENIED. The Clerk of Court is directed to transfer the above-entitled action to the Southwestern Division of this Court.