Holler v. Materials Inspection Testing, Inc. (N.D.Ind. 12-17-2009)

Full title: RALPH H. HOLLER and LINDA HOLLER, Plaintiffs, v. MATERIALS INSPECTION…

Court: United States District Court, N.D. Indiana, Fort Wayne Division

Date published: Dec 17, 2009

CAUSE NO. 1:09-cv-352 (N.D. Ind. Dec. 17, 2009)

Opinion

CAUSE NO. 1:09-cv-352.

December 17, 2009

OPINION AND ORDER

ROGER COSBEY, Magistrate Judge

Before the Court is a Petition for Removal (Docket # 2) filed by Defendants Materials Inspection Testing, Inc. and Timothy Reams, removing this case from the Allen County, Indiana, Superior Court to this Court based on diversity of citizenship pursuant to 28 U.S.C. §§ 1332 and 1441.

However, removal is seemingly improper pursuant to the "forum defendant" rule (also referred to as the "no-local-defendant" limitation in some jurisdictions) of 28 U.S.C. § 1441(b). Under this rule, a case is removable on the grounds of diversity jurisdiction "only if none 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); see Holmstrom v. Peterson, 492 F.3d 833, 834-35 (7th Cir. 2007); Hurley v. Motor Coach Indus., Inc., 222 F.3d 377, 378-80 (7th Cir. 2000); Lamotte v. Roundy's, Inc., 27 F.3d 314, 315-16 (7th Cir. 1994); Gragg v. Alfa Laval, Inc., No. 09-cv-773, 2009 WL 4110389, at *2 (S.D. Ill. Nov. 20, 2009); Chumley v. Goertzen, No. 1:07-cv-102, 2007 WL 1364644, at *1 (N.D. Ind. May 4, 2007); see generally Ayemou v. Amvac Chemical Corp., 312 Fed. Appx. 24, 30 (9th Cir. 2008); Spencer v. U.S. Dist. Court for the N. Dist. of Cal., 393 F.3d 867, 870 (9th Cir. 2004); Herd v. Scotty's Contracting Stone, LLC, No. 09-cv-313, 2009 WL 4016004, at *3 (E.D. Ky. Nov. 19, 2009). As this case was removed from an Indiana state court by the Defendants on the grounds of diversity, but with Materials Inspection Testing, Inc. and Timothy Reams both purportedly citizens of Indiana, the removal was ostensibly in violation of Section 1441(b)'s "forum defendant" rule. See 28 U.S.C. § 1441(b); Holmstrom, 492 F.3d at 834-35; Hurley, 222 F.3d at 378-80; Gragg, 2009 WL 4110389, at *2; Chumley, 2007 WL 1364644, at *1.

Accordingly, if Plaintiffs seek to remand the case due to an alleged violation of the "forum defendant" rule, or if they seek a remand on any other basis, they are to file a motion to remand with this Court on or before January 15, 2010.

SO ORDERED.