ANDERSON, Circuit Judge:
Pursuant to the so-called "forum-defendant rule," a state-court action that is otherwise removable to federal court solely on the basis of diversity of citizenship is not removable 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) (2006) (emphasis added).
Plaintiff Scarlett Goodwin is the widow of a man who died after he was allegedly struck by a tractor-trailer driven by defendant Dewight Reynolds. Reynolds was working for defendant Fikes Truck Line, LLC ("Fikes")
On the day that Plaintiff filed suit, she requested and paid for the service of process on all three defendants by the state court clerk. She also sent courtesy copies of the complaint to all three defendants. After Fikes received its courtesy copy of the complaint, Fikes and Precoat removed the case to federal court on Wednesday, January 4, 2012, three business days after Plaintiff had filed suit
On February 2, 2012, Plaintiff moved to remand the case to state court, arguing that the case had been removed in violation of the forum-defendant rule. In the alternative, Plaintiff moved to dismiss the case without prejudice pursuant to Rule 41(a)(2) so that she could refile the case in state court in such a manner as to irrefutably trigger the forum-defendant rule and, thereby, preclude a second removal.
On September 28, 2012, the district court denied Plaintiff's motion to remand the case to state court but granted her motion to dismiss the case without prejudice.
Defendants argue that the district court abused its discretion by granting Plaintiff's motion to dismiss the case without prejudice. "The district court enjoys broad discretion in determining whether to allow a voluntary dismissal under Rule 41(a)(2)." Pontenberg v. Bos. Scientific Corp., 252 F.3d 1253, 1255 (11th Cir.2001) (per curiam). The court's task is to "weigh the relevant equities and do justice between the parties." McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857 (11th Cir.1986).
We have said that "in most cases a dismissal should be granted unless the defendant will suffer clear legal prejudice, other than the mere prospect of a subsequent lawsuit, as a result." Id. at 856-57 (emphasis in original). "[I]t is no bar to a voluntary dismissal that the plaintiff may obtain some tactical advantage over the defendant in future litigation." Id. at 857. Dismissal may be inappropriate, however, if it would cause the defendant to lose a "`substantial right.'" Pontenberg, 252 F.3d at 1255 (quoting Durham v. Fla. E. Coast Ry. Co., 385 F.2d 366, 368 (5th Cir.1967)). Another relevant consideration is whether the plaintiff's counsel has acted in bad faith. See id. at 1257-58.
Defendants argue that dismissal was improper because it defeated their "substantial" right of removal.
Thatcher is perhaps in tension with American National Bank & Trust Co. of Sapulpa v. Bic Corp., 931 F.2d 1411 (10th Cir.1991). In that case, the plaintiffs filed suit in state court. The defendant removed the case to federal court on the basis of diversity of citizenship. The plaintiffs then moved for dismissal without prejudice. The district court granted the plaintiffs' motion. The defendant appealed, arguing that the district court should have conditioned the dismissal on "the requirement that any subsequent action be refiled in federal district court." Id. at 1412. The Tenth Circuit affirmed the unconditional dismissal, holding that "it is not an abuse of discretion for the district court to dismiss an action without prejudice even where the plaintiff's only motive is to recommence the action in state court." Id. at 1413. The court opined that if the plaintiffs refiled the action in state court and, in good faith, joined additional defendants that were citizens of the forum, "the trial may appropriately be in state court, as defendant has no right to trial in federal court."
Taken together, Thatcher and American National Bank perhaps illustrate some general disagreement regarding the substantiality of a defendant's right of removal. We need not enter that debate today, however, because the present case is clearly distinguishable from both cases. In both Thatcher and American National Bank, the removability of the case was based on the substance of the action. In seeking dismissal, the plaintiffs sought to modify that substance in order to preclude a second removal.
By its terms, the forum-defendant rule applies only if a forum defendant has been
The forum-defendant rule clearly contemplates Plaintiff's ability to defeat Defendants' purported right of removal in this case. It is undisputed that if Reynolds had been served before Fikes and Precoat removed this case, the forum-defendant rule would have barred removal. The only reason this case is in federal court is that the non-forum defendants accomplished a pre-service removal by exploiting, first, Plaintiff's courtesy in sending them copies of the complaint and, second, the state court's delay in processing Plaintiff's diligent request for service. Defendants would have us tie the district court's hands in the face of such gamesmanship on the part of Defendants.
Congress added the "properly joined and served" language to the statute in 1948. Sullivan v. Novartis Pharm. Corp., 575 F.Supp.2d 640, 644 (D.N.J. 2008). The published legislative history apparently contains no explanation for this addition. Id. (describing a "thorough examination" thereof). Multiple courts, however, have interpreted it as an effort to prevent gamesmanship by plaintiffs. See id. at 643 (collecting cases). In the view of these courts, the purpose of the language is "to prevent a plaintiff from blocking removal by joining as a defendant a resident party against whom [the plaintiff] does not intend to proceed, and whom [the plaintiff] does not even serve." Id. at 645. We find this interpretation persuasive.
There is no indication that either Plaintiff or her counsel has acted in bad faith with respect to this case. In particular, there is no indication that Plaintiff fraudulently joined the forum defendant, Reynolds, for the sole purpose of triggering the forum-defendant rule. Indeed, there is every indication that Plaintiff intended to prosecute her claims against Reynolds, who was allegedly driving the truck that killed Plaintiff's husband.
There is also no indication that Defendants suffered any prejudice from the dismissal, other than the loss of their preferred federal forum. On the particular facts of this case, that loss does not amount to "clear legal prejudice." Defendants' purported right to be in federal court was based on a technicality; it was not at the core of what the removal statute protects. Assuming arguendo that this case was removable, we hold that on the particular facts of this case Defendants did not lose any "substantial right" by the dismissal. There was no abuse of discretion.
We likewise reject Defendants' argument that the district court subjected their "statutory right of removal ... to the plaintiff's caprice." St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294, 58 S.Ct. 586, 593, 82 L.Ed. 845 (1938). Plaintiff did not unilaterally cause this case to be dismissed. Her motion was subject to the carefully-considered approval of the district court.