United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
R. ZWART UNITED STATES MAGISTRATE JUDGE
has moved for remand, arguing removal of his lawsuit to this
forum was improper. (Filing No. 8), Plaintiff's complaint
was originally filed in the District Court of Lancaster
County, Nebraska, and it seeks recovery in negligence for
injuries arising from a motor vehicle accident. Filing No. 1,
at CM/ECF p. 5, ¶1. On July 5, 2018, Plaintiff's
complaint was removed to this forum on the basis of diversity
jurisdiction, (Filing No. 1, at CM/ECF pp. 2, 5), and on July
10, 2018, Plaintiff timely moved for remand under the forum
defendant rule, 28 U.S.C. § 1441(b)(2). Filing No. 8.
have not responded to the motion, and the deadline for doing
so has passed. Plaintiff's motion for remand is therefore
deemed fully submitted. For the reasons stated below, the
motion should be granted.
district courts are courts of limited jurisdiction, with the
extent of that jurisdiction defined by Congress. Bender
v. Williamsport Area School District, 475 U.S. 534, 541
(1986) (citing Marbury v. Madison, 1 Cranch 137, 5
U.S. 137 (1803). In general, “[a] defendant may remove
a state law claim to federal court when the federal court
would have had original jurisdiction if the suit originally
had been filed there”, e.g., either diversity or
federal question jurisdiction is present. Phipps v.
F.D.I.C., 417 F.3d 1006, 1010 (8th Cir. 2005) (citing 28
U.S.C. § 1441(b)). See also City of Chicago
v. International College of Surgeons, 522 U.S. 156, 163
(1997). In cases removed to federal court, the defendant
bears the burden of proving the court has jurisdiction, with
all doubts as to the propriety of exercising federal
jurisdiction resolved in favor of remand. Central Iowa
Power Co-op. v. Midwest Independent Transmission System
Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009);
Transit Cas. Co. v. Certain Underwriters at
Lloyd's of London, 119 F.3d 619, 625 (8th Cir.
jurisdiction is present if “the matter in controversy
exceeds the sum or value of $75, 000, exclusive of interest
and costs, and is between . . . citizens of different
States.” See 28 U.S.C. § 1332(a)(1). But
where, as in this case, a lawsuit is removed solely on the
basis of diversity, removal is improper if any defendant
which was properly joined and served is a citizen of the
state where the complaint was originally filed. 28 U.S.C.
§ 1441(b)(2). For the purposes of diversity, a
corporation is a citizen of both its state of incorporation
and of its principal place of business.” 28 U.S.C.
argues removal of his case was improper because it was
originally filed in a Nebraska state court, DPS is a Nebraska
citizen, and DPS was a properly joined and served defendant
at the time of removal. Filing No. 8, at CM/ECF p. 1. See
also, Filing No. 9-1 (showing DPS was served on May 31,
2018). As relevant to the removal issue, Paragraph 8 of
Plaintiff's complaint alleges “Defendant D.P.
Sawyer, Inc. ("DPS") is a . . . citizen of the
State of Nebraska.” (Filing No. 1, at CM/ECF p. 6,
¶ 8). While the answer filed by Defendants Bohren
Logistics, Inc. and Tony Weekly, Jr. summarily denied this
allegation, (Filing No. 6), DPS' corporate disclosure
statement admits DPS is a Nebraska corporation. (Filing No.
11, at CM/ECF p. 2). See also, Filing No. 9-4
(identifying Lincoln, Nebraska as DPS' principal place of
business); NE Sec. of State, Corp. & Bus. Search:
D.P. Sawyer (2018); 8:17-CV-00027, Filing No. 48, at
CM/ECF p. 2, ¶8 (Defendant DPS has admitted to being
incorporated in Nebraska, with its principal place of
business in Lincoln, Nebraska in other cases arising out of
the same motor vehicle accident); see also
8:17-CV-175, Filing No. 33, at CM/ECF p. 1, ¶ 9).
record before the court, the court finds Defendant DPS was
incorporated under Nebraska law and its principal place of
business is in Nebraska. It is therefore a citizen of
Nebraska-the state where Plaintiff originally filed his
lawsuit-and under the forum defendant rule, removal of
Plaintiff's lawsuit to this court was improper.
IT THEREFORE HEREBY IS RECOMMENDED to the Honorable Laurie
Smith Camp, Chief United States District Judge, pursuant to
28 U.S.C. § 636(b), that the motion to remand filed by
Plaintiff (Filing No. 8) be granted in its entirety and the
case remanded to the District Court of Lancaster County,
defendant is notified that failing to file an objection to
this recommendation as provided in the local rules of this
court may be held to be a waiver of any right to ...