REPORT & RECOMMENDATION RE: ORDER TO SHOW CAUSE [ECF. #10]

S. KATO CREWS, Magistrate Judge.

This Report and Recommendation addresses the Order to Show Cause issued by the Court on April 15, 2019 [ECF. #10]. The Court has reviewed Defendants Brian Strack and Patricia Strack's ("Strack Defendants") Response [ECF. #16] and does not require oral argument. For the foregoing reasons, the Court RECOMMENDS remanding this matter to the state court.

BACKGROUND

Plaintiff Sarah K. Gross ("Gross") initiated this action on January 22, 2019, by filing a Complaint in the District Court for Adams County, Colorado. [ECF. #3.] Gross names as Defendants James Dickerson, Joseph Dickerson, and the Strack Defendants (collectively "Defendants"). [Id.] Gross asserts three tort claims against Defendants arising out of a single-vehicle roll-over accident that occurred in Adams County, Colorado. [Id. at ¶¶10-28.]

Gross served Defendants on March 21, 2019. [ECF. #1 at ¶2.] On April 10, 2019, the Strack Defendants removed the action to the United States District Court for the District of Colorado asserting that diversity jurisdiction exists pursuant to 28 U.S.C § 1332(a). [Id. at ¶¶4-10.] Shortly thereafter, the Court issued the Order to Show Cause requiring the Strack Defendants to show cause why this case should not be remanded pursuant to the forum-defendant rule, 28 U.S.C. § 1441(b)(2). [ECF. #10.]

DISCUSSION

A party may remove "any civil action brought in a State court for which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). However, the forum-defendant rule prevents removal to federal district court when one of the defendants is a citizen of the forum state, even where diversity jurisdiction is established. See Brazell v. Waite, 525 Fed. App'x 878, 884 (10th Cir. 2013) (unpublished) (citing Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 940 (9th Cir. 2006)).

All Defendants are citizens of Colorado, the forum state where Gross brought this action. [ECF. #3 at ¶¶4-7.] Because Defendants are "forum-defendants" their existence in this matter prevents removal to federal district court unless Gross waives the forum-defendant rule's application. See Brazell, 525 Fed. App'x at 884 ("[T]he forum-defendant rule is not jurisdictional and may therefore be waived.") (citation omitted). Gross indicates that she will not waive the forum-defendant rule's application in this matter. [ECF. #16 at ¶2.] In light of Gross' position, the Strack Defendants agree that "unless the Court exercises discretion to keep the case, remand is appropriate." [Id.] The Court finds no reason to disregard the forum-defendant rule in this instance. Accordingly, this case should be remanded to the state court.

CONCLUSION

For the foregoing reasons, this Court respectfully RECOMMENDS that this case be remanded to the District Court for Adams County, Colorado pursuant to 28 U.S.C. §1441(b)(2).

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, and waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999).