Abreu v. Merchand
- Clarke
- 1:24-cv-01334
- U.S. District Court · Southern District of New York
- 2
In Abreu v. Merchand, Judge Clarke ordered briefing on whether the defendants improperly removed the case under the forum-defendant rule.
Guillermo Abreu and the defendants, Kathryn Merchand and Schneider National Carriers, Inc. The order sets briefing and service requirements concerning whether Abreu will challenge removal under the forum-defendant rule; it does not decide the underlying dispute or the validity of removal.
What happened
In Abreu v. Merchand, the defendants moved the case from New York state court to federal court, claiming that the federal court had jurisdiction because the parties were citizens of different states. The complaint says Schneider National Carriers, Inc. is a citizen of New York, where the state-court action was brought.
Federal law generally prevents removal based on different-state citizenship when a properly joined and served defendant is a citizen of the state where the case was filed. The court noted that this rule is treated as a waivable procedural rule under Second Circuit law, although another federal appeals court has treated it as jurisdictional.
Judge Jessica G. L. Clarke did not decide whether the removal was proper. She ordered that Guillermo Abreu may file a motion under this rule by March 18, 2024; the defendants may oppose it by April 1; and Abreu may reply by April 8. The defendants must promptly provide the order to Abreu’s counsel and serve Abreu, while counsel for Abreu must file a notice of appearance.
The detailed version
- Abreu v. Merchand · No. 1:24-cv-01334
- Clarke
- Mar. 4, 2024
Background
The defendants filed a notice removing the action from the Supreme Court of New York, Bronx County, to the U.S. District Court for the Southern District of New York. They asserted that removal was proper based on diversity jurisdiction, which generally concerns disputes between citizens of different states.
The complaint alleges that Schneider National Carriers, Inc. is a citizen of New York. The court also stated that the defendants appeared to have been served and had appeared and filed an answer in the state-court action.
Legal rule
Under 28 U.S.C. § 1441(a), a defendant may remove a state-court action when the federal district court has original jurisdiction over it. But the forum-defendant rule in § 1441(b)(2) generally bars removal based on diversity jurisdiction when a properly joined and served defendant is a citizen of the state where the action was filed.
The court noted that Second Circuit law treats the forum-defendant rule as procedural and therefore waivable. It also noted contrary authority from the Eighth Circuit treating the rule as jurisdictional and not waivable.
Order
The court did not decide whether the defendants’ removal was proper. It ordered that, if Guillermo Abreu wishes to invoke the forum-defendant rule, he must file a motion by March 18, 2024. The defendants must file their opposition by April 1, 2024, and Abreu must file any reply by April 8, 2024.
Judge Jessica G. L. Clarke also ordered defense counsel to email, fax, or hand-deliver the order to Abreu’s counsel immediately upon receiving it. The defendants must serve Abreu with a copy of the order and file proof of service within two business days. Abreu’s counsel must file a notice of appearance within two business days after that service.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.