United States District Court, M.D. Tennessee, Nashville Division
ROBERT E. LITTLE, and KATHLEEN D. LITTLE, Plaintiffs,
WYNDHAM WORLDWIDE OPERATIONS, INC., WYNDHAM VACATION RESORTS, INC., WYNDHAM VACATION OWNERSHIP, INC., and CHRISTOPHER CLABOUGH, Defendants.
WAVERLY D. CRENSHAW CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiffs' Motion to Remand (Doc.
No. 16), to which Defendants have responded in opposition
(Doc. No. 21), and Plaintiffs have replied (Doc. No. 33). For
the reasons that follow, Plaintiffs' Motion will be
granted and this case will be remanded to state court.
litigation asserting common law and statutory claims under
Tennessee law was filed in the Chancery Court for Davidson
County on October 14, 2016. Plaintiffs, Robert E. and
Kathleen D. Little, are citizens of the state of Illinois.
(Doc. No. 1-1, Chancery Complaint). Named as Defendants are
Wyndham Worldwide Operations, Inc., which is alleged to be a
Delaware corporation with its principal place of business in
New Jersey, and Wyndham Vacation Resorts, Inc. and Wyndham
Vacation Ownership, Inc., both of which are alleged to be
Delaware corporations with their principle places of business
in Florida. (Id. ¶¶ 2-4). Also named as a
Defendant is Christopher Clabough, who is alleged to be a
licensed sales agent for the Wyndham Defendants and a
Tennessee resident. (Id. ¶¶5, 8(h)). Four
business days after suit was filed, the Wyndham Defendants
removed the action to this Court on diversity jurisdiction
grounds,  even though Defendant Clabough had yet to
be served with process.
now move to remand, arguing that those Defendants are
attempting “to game the system” by
“watching the [state] court dockets and quickly
removing cases before anyone can even be served” in
order to bypass the forum defendant rule. (Doc. No. 33 at 2).
Plaintiffs ask this Court to prohibit “big corporate
giants like Wyndham” from engaging in “jack
rabbit removal to defeat the purpose of Congressional intent,
” and to remand the case to the Chancery
Court from whence it originated for lack of diversity
jurisdiction. (Id.). Plaintiffs also contend that
the Court should “ignore” the Wyndham
Defendants' “lame argument” that federal
question jurisdiction exists under the Truth in Lending Act
(“TILA”), 15 U.S.C. § 1601, et
seq., characterizing the argument as being
“embarrassingly specious, even for a sneaky corporate
defendant.” (Id. at 5). Although the Court
finds such hyperbole unnecessary, it agrees that remand is
jurisdiction is conferred by 28 U.S.C. § 1332 that
provides shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interests and costs and is -
(1) against citizens of different states.” 28 U.S.C.
§ 1332(a)(1). Under this statute, “diversity
jurisdiction does not exist unless each defendant is a
citizen of a different State from each plaintiff, ”
Owen Equip. & Erection Co. v. Kroger, 437 U.S.
365, 373 (1978), as is alleged to be the case here.
defendant sued in state may remove to federal court
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). Specifically
with regard to diversity jurisdiction, however, Section
1441(b) of the removal statute - also known as the
“forum defendant rule” - provides:
Removal based on diversity of citizenship.--
(1) In determining whether a civil action is removable on the
basis of the jurisdiction under section 1332(a) of this
title, the citizenship of defendants sued under fictitious
names shall be disregarded.
(2) A civil action otherwise removable solely on the basis of
the jurisdiction under section 1332(a) of this title 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.
28 U.S.C.A. 1441(b).
Wyndham Defendants argue that removal was proper based upon
both the plain language of § 1441(b)(2) and the Sixth
Circuit's decision in McCall v. Scott, 239 F.3d
808 (6th Cir. 2001). While both sources provide a colorable
basis for their decision to remove when they did, the Court
finds that McCall is not controlling and that
permitting the Wyndham Defendants' removal would thwart
the underlying purpose for the forum defendant rule.
McCall, the Sixth Circuit stated that “[w]here
there is complete diversity of citizenship, as [plaintiff]
concedes there was, the inclusion of an unserved resident
defendant in the action does not defeat removal under 28
U.S.C. § 1441(b).” 239 F.3d at 809 n.2. However,
that statement-made without any further elaboration and
relegated to a footnote-has repeatedly been characterized as
dicta, both within and outside the Sixth Circuit, and is
therefore not necessarily followed. See e.g. Breitweiser
v. Chesapeake Energy Corp., 2015 WL 6322625, at *3 (N.D.
Tex. Oct. 20, 2015); Arrington v. Medtronic, Inc.,
130 F.Supp.3d 1150, 1155 (W.D. Tenn. 2014); In re
Darvocet, Darvon & Propoxyphene Prod. Liab. Litig.,
2012 WL ...