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The Forum Defendant Rule & Discrepancies in Interpretation


The “forum defendant rule” is detailed in 28 U.S.C. § 1444. It refers to the rules regarding when a case may be transferred or “removed” from the state court to the federal court. It contains ambiguous language that has allowed many defendants a loophole that they use to remove cases that arguably should have been kept at the state level.

Reviewing 28 U.S.C. § 1444

The statutes first explain that cases can be removed from state to district court: “Any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”

The statutes go on to explain exceptions to the rule, one of which is the forum defendant rule. It provides: “A civil action otherwise removable solely on the basis of the jurisdiction…may not be removed 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.”

Opposing Viewpoints

This last portion of the above statute, particularly the “properly joined and served” phrase, is the one that has sparked debate. Drafters’ original intent of the statute was to restrict unnecessary removal. Applicable civil actions would be kept in the state courts where they belong. 

However, what’s been happening – particularly with large product liability cases – is that big companies will monitor the court dockets. Then, as soon as a plaintiff files a claim against them, the company’s attorneys will race to file a motion for removal on the grounds that they have not been “properly joined and served.”

And because the language of the law isn’t clear, some judges have been allowing these cases to be removed, while others haven’t. It boils down to whether or not the judge decides the law should be read based on intent or literal interpretation.

Congress’ Stance on the Forum Defendant Rule

The legal field has pressed Congress to clarify the language of the forum defendant rule.  And in 2011, Congress did make changes and clarifications to the USC § 1441, creating what’s referred to as the Federal Courts Jurisdiction and Venue Clarification Act of 2011. It clarified several aspects of the law and allows plaintiffs to keep the case at the state level, provided there is diversity and the case is filed in the defendant’s state of incorporation or where it has its offices or headquarters. However, it notably left the “properly joined and served” phrase untouched.

The Significance of Removal

Plaintiffs generally have an interest in keeping the cases in the state courts, while defendants may fare better in federal courts. Defendants are quick to file for removal because:

  • Federal juries require unanimous verdicts (state courts do not)
  • The federal forum may be defense-friendly
  • Many plaintiffs lack funds for the more expensive federal court process

Legal questions? Call Hensley Legal Group

For legal questions or concerns, feel free to contact us at Hensley Legal Group. We have a team ready to answer your questions and determine how we may be of assistance. We serve all of Indiana, and you may call us anytime to set up a no-cost, no-obligation consultation at (317) 472-3333.